Antitrust Anachronism: The Interracial Wealth Transfer in Collegiate Athletics Under the Consumer Welfare Standard

Date01 September 2021
Published date01 September 2021
Subject MatterIntroduction
Antitrust and Race Symposium
Antitrust Anachronism: The
Interracial Wealth Transfer in
Collegiate Athletics Under the
Consumer Welfare Standard
Ted Tatos* and Hal Singer**
Under an illusory nexus to education, intercollegiate athletics in the United States represents a
multibillion-dollar enterprise that extracts economic rents from the majority Black athlete labor to the
benefit of overwhelmingly White constituencies. Under the aegis of “amateurism,” member uni-
versities of the National College Athletic Association (NCAA) collude to fix maximum athlete
compensation at cost-of-attendance and strip athletes of the economic rights over their own name,
image, or likeness. While this anticompetitive restraint encumbers all athletes competing under the
NCAA umbrella, it imposes a disparate impact on Black and other minority athletes who represent a
majority of the labor in the largest revenue sports: football and basketball. Although White coaches are
the most visible beneficiaries of this anticompetitive restraint, the scope of amateurism’s interracial
distributional effects has largely remained uncovered. This article seeks to fill this gap in the literature.
Leveraging data from multiple sources, including institutional financial reports and the NCAA
Demographics Database from 2007–2020, this article quantifies the NCAA’s wealth transfer away
from primarily Black athlete labor to institutions and overwhelmingly White constituencies. Under the
NCAA’ restraint, we estimate that Black football and men’s and women’s basketball athletes at the
Division I Power 5 Conference level have lost approximately $17 billion to $21 billion in compensation
from 2005 to 2019 or roughly $1.2–$1.4 billion per year. The antitrust status quo’s failure to enjoin the
NCAA’s collusive wage-fixing restraint, which causes such obvious antitrust injury and harm to athlete
labor, underscores the fundamental shortcomings of using the consumer-welfare standard as the
exclusive lodestar to investigate and enjoin anticompetitive conduct; it also exposes the divergence
between “amateurism” as described in Board of Regents and the modern-day realities of college
antitrust, race, amateurism, cross-market, NCAA, demographics, college athletics, consumer welfare
* EconONE Research
** Georgetown’s McDonough School of Business, Washington, DC
Corresponding Author:
Ted Tatos, Orlando, FL.
The Antitrust Bulletin
2021, Vol. 66(3) 396–430
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/0003603X211029481
I. Introduction
At the highest levels, the status quo in college athletics reflects the anodyne repackaging of the economic
conditions that many Black Americans faced prior to the U.S. Civil War. Certainly, we are not the first to
note the similarities between National College Athletic Association (NCAA) amateurism and the plantation
economy that characterized the antebellum South. Nor are we the first to observe that overwhelmingly
White coaches and administrators benefit from multimillion dollar contracts, while the majority Black
athletes in high-revenue sports must forego even the basic rights over their own names and likenesses. Billy
Hawkins’s The New Plantation, published over a decade ago, detailed the status of Black athletes in
predominantly White academic institutions as wealth generators for the White minority, while receiving
little beyond scraps for their labor.
Since Hawkins’s book and Pulitzer Prize winner and civil rights historian Taylor Branch’s description of
the “unmistakable whiff of the plantation”
that characterizes the exploitation of U.S. college athletes, the
odor has grown into a stench. Investigative journalist Patrick Hruby’s article, Four Years A Student-Athlete:
The Racial Injustice of Big-Time College Sports, detailed the disparate impact that the NCAA’s restraint
inflicts on the Black athletes.
More recently, professors Nathan Kalman-Lamb, Johanna Mellis, and Derek
Silva addressed the obvious racial dynamics and negative effect on minority athletes, who again drew the
inescapable analogy to a Southern plantation.
Such comments are particularly poignant in light of NCAA
member institutions’ use of majority Black athlete labor as de facto essential employees to “run money”
through their respective states during the recent COVID-19 pandemic.
Athletes and their families have been well aware of the plantation dynamics that characterize high-
revenue college sports. Former University of North Carolina (UNC) at Chapel Hill basketball player
Rashad McCants recounted his time during the school’s academic fraud scandal that nearly cost the
university its accreditation in the book Plantation Education. Kylia Carter, the mother of Duke
basketball standout Wendell Carter and herself a former NCAA Division I (D-I) coll ege athlete,
described the NCAA’s amateurism model as a system in which
...the laborers are the only people that are not being compensated for the work that they do while those in
charge receive mighty compensations ...The only two systems where I’ve known that to be in place are
slavery and the prison system. And now I see the NCAA as overseers of a system that is identical to that.
More recently, Creighton basketball coach Doug McDermott’s exhorting his team that “I need
everybody to stay on the plantation ...I can’t have anybody leave the plantation” garnered widespread
WHITE NCAA INSTITUTIONS (Palgrave Macmillan 2010).
2. Taylor Branch, The Shame of College Sports, THE ATLANTIC, Oct. 2011,
3. Patrick Hruby, Four Years A Student-Athlete: The Racial Injustice of Big-Time College Sports, VICE, Apr. 6, 2016, https://
4. Nathan Kalman-Lamb et al., I Signed My Life to Rich White Guys: Athletes on the Racial Dynamics of College Sports, THE
GUARDIAN, Mar. 17, 2021,
5. Pat Forde, Mike Gundy’s Pandemic Plan Is Ri diculous, SPORTS ILLUSTRATED, Apr. 7, 2020 ,
college/2020/04/08/mike-gundy-coronavirus-economy-comments-dangerous. The article refers to Oklahoma State football
coach Mike Gundy laying bare the revenue-maximization goal that drives NCAA members by commenting, “In my opinion,
if we have to bring our players back, test them. They’re all in good shape. They’re all 18, 19, 20, 21 and 22-year-olds. They’re
healthy. A lot of them can fight it off with their natural body, the antibodies and the build that they have. There’s some people
that are asymptomatic. If that’s true, then we sequester them. And people say that’s crazy. No, it’s not crazy because we need
to continue and budget and run money through the state of Oklahoma.”
6. Khadrice Rollins, Wendell Carter’s Mom Kylia Compares NCAA System of Compensation to Slavery and Prison, SPORTS
ILLUSTRATED, May 7, 2018,
Tatos and Singer 397
Yet the NCAA plantation remains very much intact, even as it faces another challenge
to its restraint, albeit a limited one, in the Alston v. NCAA case.
In defense of its hegemony over college athletics, the NCAA’s amateurism model benefits from a cabal
of acolytes, comprised of coaches, athletic administrators, sports writers, commentators, and reporters who
profit from and thus routinely offer glowingly self-serving assessments of the status quo. The NCAA has
also availed itself of various opportunities, including the annual basketball “March Madness” tournament
to publish its own propaganda. Its “A Day in the Life of Student-Athlete” commercial that aired during the
2019 NCAA tournament received widespread derision from former college athletes, who commented that
their own experiences bore no resemblance to the Potemkin village that the NCAA portrayed to sports
While the NCAA’s own surveys indicate that college athletes often dedicate well in excess of
forty hours per week to their sport,
leaving little time for academics, and universities themselves acknowl-
edge the conflict between high-revenue sports and their educational mission, the NCAA continues to hide
behind the facade of education to justify its anticompetitive restraint on labor. Indeed, even after the long-
academic fraud scandal at UNC, the NCAA refused to implement regulations that would prevent
its recurrence.
Neither should it escape attention that UNC chose the Afro and African-American Studies
Department in which to deliver the fraudulent “paper courses” that ensured athlete eligibility and thus
continued financial benefits to the school. Yet the NCAA and its defenders perpetuate the myth that the
substandard education many athletes receive represents a consumer benefit that justifies the restraint on
their ability to monetize their labor and their very identities.
The treatment of labor may have ostensibly improved from the days of the plantation economy
(though abuse and mistreatment of athletes continues to occur with disturbing frequency).
As we
explain herein, however, the progress has been largely superficial and designed to mask a professional
industry that methodically arrogates value from the majority Black labor, and funnels said value to
institutions, administrators, coaches, and various other, predominantly White constituencies. The
plantation has morphed into a more visually palatable form, as attested by eight of the ten largest
sports stadiums on the planet belonging to American college football programs.
Yet highly com-
pensated White coaches and administrators in collegia te sports unduly benefit from the marginal
revenue product (MRP) of predominantly Black college athletes.
When assessing a restraint limiting
payments to assistant collegiate basketball coaches over two decades ago, the antitrust system deemed
7. Jerry Brewer, The Difference between a Plantation and College Sports: A Plantation didn’t Pretend, WASHINGTON
POST, Mar. 11, 2021,
8. Andrew Joseph, Former College Athletes Destroyed the NCAA’s ‘a Day in the Life’ Commercial, USA TODAY, Mar. 19,
9. NCAA, NCAA GOALS Study of the Student-Athlete Experience, Initial Summary of Findings, Jan. 2016 (“FBS football
players continue to report the highest weekly in-season time commitments (median¼42 hours/week, up from 39 hours/week
in 2010). FCS football and Division I baseball also reported 40 hours/week or more.”)
10. University of North Carolina at Chapel Hill, Response to the Southern Association of Colleges and Schools Commission on
Colleges (SACSCOC) Letter of Nov. 13, 2014 (Jan. 12, 2015).
11. Jeremy Bauer-Wolf, Keeping the Status Quo, INSIDE HIGHER ED, Sept. 5, 2019,
12. Ted Tatos. Abuse and Mistreatment of Athletes at US Universities: Legal Implications for Institutional Duty-to-Protect ,
13. Robert J. Wood, List of the World’s Largest Sports Stadiums, TOP END SPORTS, May 2021. https://www.topendsports.
14. As of the writing of this article, only thirteen of the 130 Football Bowl Subdivision coaches are Black. Ivan Maisel, The Lack
of Black College Football Coaches is Still Glaring, and so are the Excuses behind It, ESPN, Dec. 3, 2020, https://www.espn.
com/college-football/story/_/id/30435797/the-lack-black-college-football-coaches- glaring-the-excu ses-it. In 2020, 119
football coaches for whom pay levels were reported received a total of $321.8 million in compensation. Black coach
compensation represented 11.6%if this total. See NCAA Salaries, USA TODAY,
398 The Antitrust Bulletin 66(3)

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT