Abstract

Excerpted From: Julia Steggerda-Corey, The Case for NCAA Liability for Spectator Racial Harassment of Athletes, 31 Jeffrey S. Moorad Sports Law Journal 1 (2024) (317 Footnotes) (Full Document)

Athlete abuse in all forms is a systemic issue in sports. For athletes of color, and student-athletes of color, abuse includes discriminatory conduct and racism from their university, coaches, staff, teammates and competitors, and spectators. In 2022, reported harassment of a Duke University women's volleyball player, Rachel Richardson, threw spectator harassment into the national spotlight. In August of that year, Rachel Richardson was “targeted and racially heckled” throughout the entirety of Duke University's match against BYU at BYU, with BYU officials failing to take any action against the offending spectator. Just days later, Jalea Auguste, a Black female volleyball player for the Florida Gators also reported being racially harassed at a recent competition, with no action taken by the home team's officials, coaches, or event staff.

Spectator harassment occurs when spectators invoke “harmful verbal or physical actions towards others in the sport milieu.” Often used as a tactic to intimidate and rattle opponents, harassment based on race or other immutable characteristics extends past normal heckling and instead becomes degrading and dehumanizing. Furthermore, spectator harassment has historically been de facto authorized as there have been few consequences for offenders' behavior. Despite the initial purpose of the NCAA to protect student-athletes, its failure to address and stop athlete abuse in its 117-year existence erodes the legitimacy of the NCAA and raises questions about the efficacy of college sports. The ongoing harm contributes to a racist college sports establishment created and perpetuated by the NCAA in which Black and brown student-athletes are commodified instead of valued and protected like their white counterparts. Black and brown student-athletes have been left voiceless and powerless in the face of enduring racism.

Following the BYU incident, BYU released a public statement indicating that they were unable to substantiate Rachel Richardson's claims and stated no further remedial action would be taken to either deter BYU spectators from acting in such a manner at future events or deter other member schools' from tolerating such behavior from their own spectators. The NCAA was silent on the matter. Rachel Richardson was expected to continue competing for Duke as if the harassment never occurred. Despite enduring racial slurs while trying do her job, she was given no opportunity for recourse or recovery from the verbal assault enabled by BYU and the NCAA.

This Article seeks to prescribe an avenue of redress for discriminatory spectator harassment under Title VII of the Civil Rights Act creating employer liability for third-party harassment. In light of recent and upcoming case law eroding the power of the NCAA--including the likely outcome from the Third Circuit in Johnson v. NCAA which will grant the NCAA and member schools joint employer status Article outlines a successful complaint by a student-athlete against their enrolled institution and the NCAA for liability for spectator harassment. Under a Title VII claim, this Article determines that an athlete could satisfy all four prongs of the workplace harassment test to hold the NCAA and member schools accountable for race-based harassment from spectators.

Section I of this paper discusses the history of spectator harassment, highlighting the ways in which the NCAA and NCAA member institutions have tried or avoided eradicating spectator harassment. Section II analyzes the impact of spectator harassment of student-athletes, looking holistically at the student-athlete experience to further understand the intensified impact of race-based harassment. Section III explains why the NCAA is considered a joint employer with the student-athlete's member institution when analyzing this legal claim. Section IV dives into an athlete-employee's third-party workplace harassment claim, discussing the legal standard that an athlete-employee must satisfy and showing ways in which it may be achieved. Section V concludes the Article highlighting the need to prioritize the health of student-athletes of color through anti-racist programming and policies.

[. . .]

Allowing a culture of racism to continue to overwhelm college athletes is no longer tolerable. Black and non-white athletes have fought for decades “to have [their] voices heard and receive justice for the racism [they] have faced for centuries.” It is time for “athletes, coaches, and leaders in athletics departments ... to make actionable change to ensure that [racist attacks from spectators] will never be tolerated again.” It is time that the athletic regime “[b]elieve in Black voices, protect Black players, and embrace accountability.”

Holding the NCAA and member schools jointly liable as employers of athletes for third-party spectator harassment will propel anti-racist efforts for a more equitable, healthy, and productive athletic career. The NCAA and member schools should take the responsibility to protect all student-athletes from racism seriously and enforce codes of conduct that prohibit racist and discriminatory behavior through tougher sanctions, enhanced monitoring, and willingness to believe that student-athletes are not fabricating reports of racism. Failure to do so should result in holding the NCAA and member schools vicariously liable for the damages caused by discriminatory workplace harassment.

LL.M. Drake University Law School (2018); J.D. Drake University Law School (2018).