Excerpted From: Meg Hancock, Tackling Bias in Sport: Recognizing the Impact of Identities, 26 Vanderbilt Journal of Entertainment and Technology Law 329 (Winter, 2024) (132 Footnotes) (Full Document)

MegHancock.jpegValued at nearly a half-trillion dollars, organized sports are ubiquitous in the United States. The youth sports (ages 6-17) industry is valued at $19 billion, with some towns investing several million dollars in state-of-the-art training and event complexes. Soccer Shots, i9 Sports, and D1Training are but a handful of franchises designed to grow youth sports. The National Collegiate Athletic Association (NCAA), the largest governing body in college sports, generated $1.14 billion in revenue, mostly from television and marketing rights as well as championship events like March Madness.

In 2021, the NCAA began allowing athletes to use their name, image, and likeness (NIL) to earn compensation. Now, twenty-four NCAA athletes have NIL valuations of over one million dollars and over 100 athletes are valued at greater than $500,000. These valuations are often based on social media reach, which expands the athlete brand and, in some cases, the reach of their respective institutions.

For example, in providing guidance on Texas state law, The University of Texas explained that student-athletes are prohibited from “earning NIL-compensation in exchange for property owned by The University of Texas or Texas Athletics, or for providing an endorsement while using intellectual property or other property owned by The University of Texas or Texas Athletics.” As such, athletes are prohibited from wearing University of Texas colors and logos for their individual NIL deals. However, the University of Texas partnered with a licensing company that allows individual athletes to enter into co-licensing agreements to use university trademarks, colors, and logos, thus expanding the brand of the athlete and University of Texas.

The “Big Five” professional sports organizations--National Football League (NFL), National Basketball Association (NBA), National Hockey League (NHL), Major League Baseball (MLB), and Major League Soccer (MLS)--continue to increase revenue through expanded media rights, obtaining a global presence by hosting exhibition as well as in-season games in countries outside the United States, and global licensing and merchandising efforts. Women's professional sports organizations, like the Women's National Basketball Association (WNBA) and National Women's Soccer League (NWSL), have experienced exponential growth in sponsorship, marketing budget, and fan engagement (e.g., attendance, social media, and viewership).

Studies suggest participation in organized sports--from childhood to adulthood--promotes positive physical, social, emotional, and intellectual benefits. This in turn impacts individuals and their communities. Specifically, sports participation in early childhood and adolescence leads to higher self-esteem, greater wage earning potential, lower health costs, reduced chronic disease, and lower levels of depression. In adulthood, participating in sport provides social connection, personal enjoyment, and improved health. Overall, US society views sports participation as a popular, viable, and sustainable avenue for social mobility. While the benefits of sports participation are unequivocal, the visibility and influence of star athletes may perpetuate the impression that sports--and their benefits--are broadly accessible to all people. While this is true for some, access to organized sports and associated benefits vary widely by sex, race, sexual orientation, and gender identity. More specifically, women, people of color, and lesbian, gay, bisexual, transgender, queer/questioning, and other non-heterosexual or non-cisgender (LGBTQ+) individuals may be less likely to participate in organized sport due to discrimination and harassment experienced in various settings.

This Article illustrates the intersectionality of social identities, institutions, and law as they inhibit a person or group's access to sports based on race, sex, gender identity, or sexual orientation. Part II focuses on a brief history of sports in the United States. This history illustrates the economic and educational structures that affected sport participation for women, people of color, and sexual and gender minorities. Part III examines how the layering of identities, specifically of those who are oppressed, impacts access to sports and its benefits. Throughout, this Article explores how existing legal antidiscrimination frameworks might help promote access to sports, particularly for historically disadvantaged groups.

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Sports participation is an integral part of US society, and institutional barriers to sports participation can have far-reaching legal and social implications when such denial disproportionally impacts protected groups. The benefits of sports are myriad, from the youth to professional levels and including athletes and other participants alike. Structures rooted in systems of racism, sexism, homophobia, and transphobia often inhibit access to sports. When institutional structures deprive marginalized groups of the of benefits accompanying sports participation, gaps in health, education, economic status, and equality only grow larger. Therefore, policy makers should consider the generational impacts on individuals and groups when creating legislation that promotes discrimination instead of inclusion. While policy and legal measures alone may not eliminate bias and discrimination, they provide a solid foundation for change by signaling a commitment to equality, thus setting the stage for broader societal transformation.

Meg Hancock, PhD (she/they) is an Associate Professor in the Department of Health and Sport Sciences at the University of Louisville.