Reversing Field: Examining Commercialization, Labor, Gender and Race in 21st Century Sports Law (review)

This anthology is largely the product of a symposium at the University of West Virginia School of Law in 2007 on commercialization, labor, gender, and race in sports law. The anthology gathers a vast array of authors (almost thirty), most of whom, not surprisingly, are legal scholars. The result is a varied and sometimes uneven collection of works clustered around four major topics, whose connection to each other is generally limited to just the fact that they are all sports law issues.

Part I focuses on commercialization and in some ways this is the most disappointing section because, legally speaking, this is an understudied area in sports law. The first chapter by then Vice-President of the National Collegiate Athletics Association (NCAA) Bernard Franklin, currently the Chief Inclusion Officer, was a somewhat self-serving tribute to the NCAA’s academic reforms in recent years and a reiteration of the NCAA’s commitment to diversity. Five years after the speech was initially given, the information about the Academic Progress Rate (APR) is already dated and the diversity statements ironic given that Franklin, himself a racial minority, was passed over when the NCAA selected a white man as the new president in 2010. Two stronger essays were Alfred Dennis Mathewson’s “Exploring the Commercialized Arms Race Metaphor” and Andre L. Smith’s “Describing Racism as Asymmetrical Market Imperfections, or How to Determine Whether the NBA Dress Code Is Racist.” Mathewson argued that the metaphor fit reality and worried about the effect of the emphasis on athletic scholarships in the African-American community on the commitment to education. He called for “an educational arms race” that would allow the faculty to get involved in designing innovative academic programs targeting athletes. While not entirely persuasive, his call to arms was interesting. Similarly, Smith’s compelling and clever argument maintained that the National Basketball Association dress code was racist because it maintained a white cultural and economic supremacy but that it was neither unjust nor discriminatory. From this he concluded that a free market manipulated to favor a dominant over a non-dominant group was inherently problematic.

Part II explores labor issues such as strikes and the regulation of performance-enhancing drugs. The strongest chapters, however, generally have been previously published. For example, William B. Gould IV’s “The 1994–’95 Baseball Strike and National Labor Relations Board: To the Precipice and Back Again” was an engaging description from an insider’s perspective of that labor disruption and the relevant labor law. One solid chapter, though, is an original piece: William David Cornwell, Sr.’s “Challenging the Premise of Steroid Testing in Sports.” Cornwell argued that drug testing athletes at greater rates than medical doctors or politicians was illogical and that the assumption that steroid use was dangerous and provided unfair advantages unproven. He argued that banning performance-enhancing drugs for health reasons while the National Football League (NFL), among others, did nothing about concussions was the height of hypocrisy. This last argument is germane today in 2012 given the lawsuits alleging that the NFL should have acted on the concussion dangers earlier than the 2010 football season.

The third part of the anthology focuses on gender issues, and again the strongest chapters have been previously published. Deborah Brake’s “The Invisible Pregnant Athlete and the Promise of Title IX” was well-written and clearly argued. Her explanation of the law was clear even to a layperson. Similarly “Girls Can Play, Too: Has the Lack of Female Leadership in NCAA Athletics Become an Afterthought?” by Bethany Swaton was fascinating. Swaton argued that the dearth of female sport administrators is appalling and contended that a class-action lawsuit on the grounds of Title VII (which prohibits gender discrimination in the workplace) would be appropriate and landscape altering.

Part IV about race was, perhaps, the strongest section of the...