• Summary

  • A series of events over the last 18 months—some unforeseeable—have created a perfect storm that will change college sports forever. The NCAA's bait and switch campaign in Congress on name, image, and likeness, a historic case in the US Supreme Court, COVID, race-based social unrest, the death of Ruth Bader Ginsburg (and the ascent of Amy Coney Barrett,) the Georgia special elections, and more have conspired to make this era perhaps the most consequential in the history of American sports. In this perfect storm, nothing is as it appears to the public. The NCAA and powerful conferences have marshaled some of the most powerful corporate, legal, public relations, media, and political forces in the world to wage war against a small group of elite revenue-producing athletes—overwhelmingly African American—who threaten to disrupt the NCAA cartel in the 15 billion-dollar-a-year college sports industry. The NCAA is one bill in Congress and one Supreme Court decision away from achieving the Iron Throne of college sports regulation. If that happens, the athletes whose talents underwrite the entire industry will have no recourse in federal courts to challenge the NCAA's amateurism-based compensation limits and state legislatures will be powerless to pass laws that protect athletes' basic economic liberties. Join former Duke basketball player, attorney, academician, and athletes' rights advocate Richard Ford as he dissects the NCAA's war against revenue-producing athletes and the institutions, interests, decision-makers, and motives behind it.
    © 2022 the BigAmateurism monologues Richard Ford
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Episodes
  • Jun 21 2022
    One year ago, the US Supreme Court issued what many view as a landmark decision in NCAA v Alston. The Supreme Court held unanimously that the NCAA was not entitled to antitrust immunity. For nearly forty years post-Board of Regents, the NCAA has successfully used off-hand language from that case as a shield from liability in lawsuits challenging the NCAA’s amateurism-based compensation limits or its regulatory authority. In short, the Supreme Court held that the NCAA was not above the law. In Johnson v NCAA, athletes allege they are employees under the Fair Labor Standards. The NCAA counters that it is entitled to a similar amateurism-based immunity created out of whole cloth by the 7th Circuit in Berger v NCAA. It treats Alston as either irrelevant to the FLSA issues or supportive of its amateurism-based immunity arguments. The NCAA’s briefing in Johnson makes one wonder whether Alston has any meaning at all. This episode analyzes the NCAA’s use of Alston and the state of amateurism in 2022.
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    Less than 1 minute
  • Jun 14 2022
    In a trilogy of cases since late 2014, athletes claim they are employees under the federal Fair Labor Standards Act (FLSA). The FLSA provides minimum wage and overtime standards for hourly workers. The purpose of the FLSA is distinct from and more limited than the National Labor Relations Act (NLRA), which provides an avenue for workers to have a say in their work conditions through collective bargaining. Under both laws, putative workers must first establish they are indeed employees. The employee tests for the FLSA and NLRA have some overlap but are not identical. However, all employee tests are multi-factored and require extensive fact findings under broad statutory eligibility criteria that require an analysis of the totality of the circumstances. Neither law expressly excludes college athletes from coverage. In Johnson v NCAA, the 3rd Circuit Court of Appeals will determine whether the FLSA categorically excludes athletes from FLSA coverage. The primary inquiry under the FLSA is the “economic reality” of the relationship between putative employer and employee. In the first case of the FLSA trilogy—Berger v NCAA—the 7th Circuit Court of Appeals affirmed a ruling of the district court that athletes cannot be employees under the FLSA as a matter of law. Relying on a 1992 case—Vanskike v Peters—rejecting a prisoner’s claim that his forced prison labor made him an employee under the FLSA, the district court and 7th Circuit excluded athletes as employees under the FLSA without any factual inquiry or the application of any of multi-factored tests designed to determine employee status under the FLSA. Neither the district court nor the 7th Circuit in Berger disclosed the legal rationale of Vanskike, which relied on an exception to the 13th Amendment that exempted indentured servitude for prisoners duly convicted of a crime. In essence, the Berger courts said that because of the revered tradition of amateurism and the “student-athlete,” college athletes are similarly situated to prisoners. This episode discusses the FLSA litigation and the tactics employed by federal courts and the NCAA to avoid at all costs any factual inquiry into the truth of the college sports business model and, importantly, the actual “economic reality” of the relationship between athletes and their institutional overlords.
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    Less than 1 minute
  • Jun 3 2022
    On May 19th, the Drake Group hosted a panel discussion titled “Giving College Athletes the Right to Unionize.” An impressive panel of commentators—Bob Costas, Michael Hausfeld, Sen. Chris Murphy (D-CT), Andy Zimbalist (moderator), and Kaiya McCollough—shared their thoughts on athletes as employees and the possibility of collective bargaining through the lens of Sen. Murphy’s federal bill, the College Right to Organize Act. This episode analyzes the panel discussion, emphasizing (1) the difficulties athletes face in having their voices heard and valued in the regulation and business model of college sports.; and (2) the ease with which false status quo narratives marginalize athletes’ voices.
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    Less than 1 minute

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