The Case for NCAA Liability for Spectator Racial Harassment of Athletes

Volume 31 Issue 1 Article 1 2-12-2024 The Case for NCAA Liability for Spectator Racial Harassment of Athletes Julia Steggerda-Corey Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Entertainment, Arts, and Sports Law Commons Recommended Citation Julia Steggerda-Corey, The Case for NCAA Liability for Spectator Racial Harassment of Athletes, 31 Jeffrey S. Moorad Sports L.J. 1 (2024). Available at: https://digitalcommons.law.villanova.edu/mslj/vol31/iss1/1 This Article is brought to you for free and open access by the Journals at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. THE CASE FOR NCAA LIABILITY FOR SPECTATOR RACIAL HARASSMENT OF ATHLETES J ulia S teggerda -C orey * Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The History of Spectator Harassment. . . . . . . . . . . . . A. The NCAA’s Role in Supporting & Protecting Athletes . . . . . . . . . . . . . . . . . . . . . . B. The Role of Member Institutions in Supporting & Protecting Athletes . . . . . . . . . . . . . . . . . . . . . . C. The Joint Responsibility of the NCAA & Member Institutions . . . . . . . . . . . . . . . . . . . . . II. The Athlete Experience. . . . . . . . . . . . . . . . . . . . . . . . A. Managing Racism. . . . . . . . . . . . . . . . . . . . . . . . . . B. Economic Burden . . . . . . . . . . . . . . . . . . . . . . . . . C. The Intersection of Economics and Racism. . . . . III. The NCAA as a Joint Employer . . . . . . . . . . . . . . . . . . IV Workplace Harassment – Holding the NCAA Jointly Liable for Third-Party Spectator Harassment. . . . . . . A. Analyzing Sufficiently Severe or Pervasive . . . . . . B. Altering the Workplace Environment. . . . . . . . . . C. NCAA Athlete-Employee Claim to Satisfy Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Conduct Imputable to the NCAA. . . . . . . . . . . . . E. The Athlete’s Claim to Satisfy Imputability . . . . . V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 12 13 17 19 20 28 33 38 41 42 48 51 57 61 65 I ntroduction Athlete abuse in all forms is a systemic issue in sports.1 For athletes of color, and student-athletes of color, abuse includes * LL.M. Drake University Law School (2018); J.D. Drake University Law School (2018). Many thanks to my writing group for always being a sounding board and providing encouragement. Thanks to my husband, sister, and mom for happily listening to me work through this project—we are all happy this one is over the finish line. 1.  See Marcus Hoy, Reports of Abuse of Athletes Continue to Emerge Across the Globe, Play The Game (June 6, 2022), https://www.playthegame.org/news/ reports-of-abuse-of-athletes-continue-to-emerge-across-the-globe/ [https://perma. cc/3KZ4-5Q5H] (“Sport has an explicit abuse problem.”); see also What Every Parent Should Know, Safe 4 Athletes, https://safe4athletes.org/what-every-parent/ (1) 2 J effrey S. M oorad S ports L aw J ournal [Vol. 31: p. 1 discriminatory conduct and racism from their university, coaches, staff, teammates and competitors, and spectators.2 In 2022, reported harassment of a Duke University women’s volleyball player, Rachel Richardson, threw spectator harassment into the national spotlight.3 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.4 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.5 Spectator harassment occurs when spectators invoke “harmful verbal or physical actions towards others in the sport milieu.”6 Often used as a tactic to intimidate and rattle opponents,7 harassment based on race or other immutable characteristics extends past normal [https://perma.cc/G5CC-7JCB] (last visited Dec. 14, 2022) (discussing types of abuse in sports, perpetrators of abuse, and how parents can identify whether their child-athlete may be victim of abuse). 2.  See, e.g., Michael H. LeRoy, Harassment, Abuse, and Mistreatment in College Sports: Protecting Players through Employment Laws, 42 Berkeley J. Emp. & Lab. L. 117, 119–121 (2021) (detailing variety of abuse cases including cases of sexual assault at hands of coaches and trainers, physical abuse of athletes through coaching techniques that push player past their limits as form of punishment that leads to significant injury, and racial harassment of athletes from coaches and staff). 3.  See Dave Zirin, The Racism on Display at Brigham Young Friday Fits a Historical Pattern, MSNBC (Aug. 29, 2022, 7:54 PM), https://www.msnbc.com/opinion/ msnbc-opinion/byu-fan-called-duke-players-n-word-was-only-beginning-n1298434 [https://perma.cc/R3GY-A3BX] (discussing the national spotlight on incident at BYU). 4.  See Isabel Gonzalez, Duke Volleyball Player Who Was Called Racial Slurs by BYU Fans During Match Says School Mishandled Incident, CBS Sports (Aug. 29, 2022, 3:47 PM), https://www.cbssports.com/general/news/duke-volleyball-player-who-was-calledracial-slurs-by-byu-fans-during-match-says-school-mishandled-incident/ [https:// perma.cc/UXJ5-MCLG] (citing Rachel Richardson’s tweet about her experience being heckled at threatening level, causing her to feel unsafe and noting mental toll experience had on her); see also Rachel Richardson (@Rachrich03), X (Aug. 28, 2022, 11:47 PM) https://twitter.com/rachrich03/status/1563931324569849856 [https://perma.cc/T372-CG3V] (reporting incident and its impact on her). 5.  See Jaela Auguste (@JaelaAuguste), X (Aug. 28, 2022, 8:19 PM), https:// twitter.com/JaelaAuguste/status/1564045038455324673 [https://perma.cc/ SJA4-KCYQ] (reposting Richardson’s tweet stating she also went through similar experience). 6.  See Andy Rudd, Sport Spectator Behavior as a Moral Issue in College Sport, 3:1 J. Amateur Sport 96, 98 (2017) (“[I]n the sport context, spectator aggression essentially involves harmful verbal or physical actions towards others in the sport milieu including opposing players, coaches, and game officials. Further, spectators may act aggressively for either hostile or instrumental reasons.”). 7.  See Dallan F. Flake, Spectator Harassment, 56 Wake Forest L. Rev. 441, 487 (2 (...truncated)