The NCAA’s Selective Support Of LGBT Rights
In 2015, the NCAA took an unusual political stand in opposing Indiana’s RFRA. But as March Madness returns to Indy two years later, the organization’s LGBT advocacy is as inconsistent as a team headed for a first-round exit.
One night last fall, a few hundred Hoosiers gathered for Lambda Legal’s Indiana Benefit, one of the largest annual LGBT events in the state. The gala took place at the Central Library, less than a mile from the Statehouse where legislators had drafted Indiana’s “religious freedom” bill, or RFRA, in 2015. Now, with RFRA at least partially fixed, and with momentum fully on their side, the crowd seemed festive. There were cocktails in the atrium, then awards in the auditorium. Perhaps the biggest one of all was the Corporate Leadership Award, and in 2016, it went to Indy’s own National Collegiate Athletics Association.
Technically, of course, the NCAA is not a corporation but a nonprofit. Yet the award felt right for two reasons. The first is that, to its critics, the NCAA seems as greedy and profitable as any Fortune 500 company. It took in $912 million in 2015, with most of that coming from its showcase basketball tournament—and the many unpaid “student-athletes” who make it can’t-miss TV. The second reason is that, in the last few years, the NCAA has become increasingly political. This isn’t as simple as Republicans and Democrats. (The leadership team includes both; NCAA president Mark Emmert, for instance, donated to the presidential campaign of Jeb Bush.) Instead, the organization has taken public stands—and in some cases canceled major events—on a handful of social issues, especially LGBT rights. The NCAA rarely leads on these matters. But more and more, it appears willing to threaten boycotts and release statements in response to controversial new laws.
There’s no doubt the NCAA is sincere in its political engagement. At the Indiana Benefit, Bernard Franklin, the NCAA’s chief inclusion officer, received multiple ovations. “We believe in embracing democracy and diversity,” he said.
But in the two years since Indiana’s RFRA, the NCAA’s activism has been inconsistent and opaque. It has been difficult to discern the reasoning behind its political ambitions, to get beyond press-release language like “democracy” and “diversity.” (The NCAA declined to grant interviews for this story.) The organization has seemed opportunistic at times, even if it’s ultimately helping a worthy cause. And yet, on that charge, the NCAA has some good company. In fact, its selective embrace of LGBT rights may be the most corporate thing about it.
The NCAA was founded in 1906, and that founding was in some sense political. College football had become an enormously controversial sport—for its violence on the field and its corruption off it. Teddy Roosevelt worried about the “undergraduate who, in furtive fashion, becomes a semi-professional.” So the president invited coaches and professors to the White House to talk reform. Eventually, more than 60 universities created a national organization that would become the NCAA.
But in the century that followed, the NCAA largely avoided anything political or progressive. As Charles Martin, the author of Benching Jim Crow: The Rise and Fall of the Color Line in Southern College Sports, says, “The NCAA hasn’t been willing to push the envelope on sensitive issues.”
The best comparison to today’s LGBT debate is the struggle for Civil Rights. In the 1950s and 1960s, black student athletes often had to frequent segregated hotels and segregated restaurants. At the games, some colleges forced black students to sit not in the student sections, but in the bleachers with other black fans.
While the NCAA was far less powerful than it is today, it still seemed positioned to make a difference. Between the GI Bill and the growth of TV revenues, the organization had more money and autonomy than ever. In 1952, it sold the rights to a football “game of the week” for more than $1 million. The NCAA used part of the proceeds to open a small but permanent headquarters in Kansas City.
But the organization kept quiet on Civil Rights, even as professional sports were playing a central role. In 1965, the same year Martin Luther King Jr. marched on Selma, the American Football League scheduled its All-Star game in New Orleans. Once they arrived, the AFL’s black players found they couldn’t hail a cab at the airport or enter the clubs on Bourbon Street. After dozens of racist encounters, they decided not to play as long as the game remained in Louisiana. It was a move that foreshadowed the NCAA’s modern boycotts, and the AFL eventually relocated the contest.
According to Martin, there were no similar stands at the college level. Part of the problem was that the players, as amateurs, lacked the security of their professional counterparts. Another part was that the NCAA declined to pressure its members, especially in the South. The year after the AFL protest, Texas Western played the University of Kentucky in the men’s basketball championship. Texas Western started five black players—two of whom were Indiana natives—and that infuriated Kentucky’s legendary coach, Adolph Rupp. “You’ve got to beat those coons,” he told his all-white squad at halftime. But Texas Western prevailed, 72-65.
Yet when Rupp finally integrated his team, years later, it wasn’t because of stunning upsets or the NCAA’s bold leadership. It was because of the federal government. The Civil Rights Act forbade entities that received federal aid from discriminating based on race, and that included state universities and their various sports programs. Kentucky’s president forced Rupp to integrate because millions of dollars were on the line, and eventually other schools made the same calculation.
In all of this, the NCAA could have made a difference—or at least, made an effort. Instead, it focused its energies on banning dunks, an exciting innovation most fans associated with black players. It added reactionary clauses to its TV contracts; networks, those contracts now mandated, “will not telecast such disturbance … caused by a protest group, civil rights group, or similar organization of social dissent.” The NCAA even spent the cash from those contracts on lobbying congressmen to vote against legislation that would empower women’s sports—legislation we know today as Title IX.
The NCAA in 2017 barely resembles its Civil Rights–era predecessor. Instead of a small office in Kansas City, it boasts a sprawling campus in White River State Park—more than 300,000 square feet for its 500 employees. When Indianapolis convinced the NCAA to relocate, in the summer of 1997, it did so with $50 million in incentives. The NCAA pays an annual rent of $1 (and nothing in taxes, given its nonprofit status). But both sides seem happy with the arrangement. A few years after the move, the two parties started work on an extension that was finalized in 2010. Now, the NCAA’s lease runs through 2060, with the city guaranteed one premium event per year, such as a Final Four or the organization’s national convention.
Yet the biggest change in the modern NCAA may be its recent willingness to take political stands. The group has blocked any state that flies the Confederate flag from hosting certain championships and imposed similar sanctions on schools with “hostile” Native American mascots. The NCAA’s most public protests have centered on LGBT rights—in large part because of the organization’s Hoosier roots.
The NCAA has quietly participated in Indiana’s LGBT debate for years. When local businesses and activists formed Freedom Indiana in 2013 to fight a potential constitutional amendment that would ban gay marriage, someone from the NCAA showed up for every one of the group’s meetings. In 2015, the NCAA tracked Indiana’s RFRA as it moved through the house and senate. When Governor Mike Pence signed it into law, on the morning of March 26, the NCAA’s Indianapolis office was ready. Almost immediately, it issued a statement criticizing the bill and politely but firmly warning that it could endanger the organization’s future in the state.
Before long, many Hoosiers were echoing this outrage—and celebrities from George Takei to Ashton Kutcher were chiming in online. Still, nothing focused the controversy like the fact that, thanks to the NCAA’s extended lease, a men’s Final Four would arrive in Indianapolis in a few days’ time. The NCAA understood the looming RFRA backlash better than Indiana’s politicians or even its universities did. On March 27, Purdue president Mitch Daniels sent an email to his athletic director, Morgan Burke. “The uproar is a little odd given that 30 other states and the federal [government] have essentially the identical law,” Daniels wrote. “Maybe it will calm down.”
It didn’t, in part because Indiana’s law differed from its antecedents in key ways. Over the next few days, Indiana’s RFRA exploded into a national issue. The NCAA kept applying pressure. In private, Emmert spoke with Pence about the bill’s problems; he found the governor to be as confusing in conversation as he was in his appearances on TV. Meanwhile, in public, Emmert gave interviews explaining how the bill sent a message of intolerance to the NCAA’s employees and its incoming fans. “We have to say, ‘What are we going to do if this law goes into effect in July?’” Emmert told ESPN on March 30. “‘What’s our relationship with the state of Indiana going to be?’”
Indiana Republicans realized their RFRA needed an amendment, and Emmert consulted on the new language. He also urged them to hurry. On April 2, the legislature announced a potential “fix” that would restore Indianapolis’s own anti-discrimination law, among other changes. Later that afternoon, at Lucas Oil Stadium, Emmert held his annual Final Four press conference. RFRA dominated the proceedings—it came up in five of the first six questions—and Emmert continued his polite but firm threats. “It’s a bill that creates an environment,” he said, “within which college athletics would find it very difficult to operate.”
As the press conference wound down, a reporter tried to ask another RFRA question. Emmert cut her off—“Do you have some news for us?” he asked.
“They’re working on it,” she said, referring to the legislature’s ongoing efforts.
And they were. Later that night, Pence signed the fix.
The NCAA responded forcefully to RFRA because it knew the issue and knew Indiana. It also knew that plenty of major corporations would join in. In the last few years, issues like gay marriage have won wide acceptance, particularly among the young and the wealthy, two crucial demographics for any national brand. Being an advocate has become good business, and companies like Apple and Eli Lilly raced to denounce Indiana’s law.
Advocacy proved to be a smart choice for the NCAA as well—at least at first. In that initial RFRA statement, it fretted that the law “could affect our student-athletes and employees,” and Emmert repeated this idea again and again.
Defending LGBT rights allowed the NCAA to duck the charge that, in the end, its “student-athletes” and “employees” are the same thing. Instead of trying to justify amateurism at Final Four press conferences, Emmert basked in the positive press.
In the 24 months since, however, the NCAA’s LGBT stand has created as many headaches as headlines. As it turns out, it’s tricky for a big business (or a very lucrative nonprofit) to venture into the knotty, localized world of public policy. The NCAA has discovered activism is more challenging than it might have expected.
The organization has intervened in a number of places post-RFRA, but two stand out. First, Houston. In the fall of 2015, the city’s residents voted on whether to repeal a new anti-discrimination law. Behind the scenes, the law’s supporters begged the NCAA to endorse their cause—to champion LGBT rights by threatening the city’s upcoming Final Four, just as it had done in Indiana. But the NCAA declined. Only after voters had rejected the law—the day after, in fact—did the organization issue a quiet statement calling for inclusivity and warning that Houston could hurt its odds for “a future Final Four.”
Now consider North Carolina. In the spring of 2016, the state fast-tracked its own bill to undermine local anti-discrimination laws. Once the bill passed, Emmert and many others condemned it; the outrage soon eclipsed anything that had occurred in Indiana. Yet social conservatives dismissed this rhetoric. “The Final Four of the NCAA was just held in Houston,” one Texas pastor observed. Corporate threats like the NCAA’s, he promised, were only “a paper tiger.”
That turned out to be very, very wrong. A few months later, the NCAA announced it was pulling seven postseason events out of North Carolina, including two rounds of March Madness. But while the organization made good on its threats, it did so unevenly. It’s tough to connect Houston and North Carolina except with a simple, cynical equation: More outrage equaled more action.
Going forward, it seems, the NCAA is caught in a complex policy trap. In 2016, legislators from more than two dozen states introduced bills attacking LGBT rights, and there will be more in the future. Each will come with its own legal intricacies and local contexts; each will carry some expectation that the NCAA should weigh in. With Indiana’s RFRA, at least, the NCAA had time to do its homework. But it’s hard to see how it can scale that thoughtful approach. So will the NCAA speak up on every anti-discrimination bill? Will it hold cities to a different standard than states? Will it ever confront its own members—namely, the tiny religious colleges that in some cases still forbid homosexual acts? Will it add new issues to its political agenda?
However the NCAA answers these questions, Hoosiers can still find plenty of reasons to support LGBT rights. Two are obvious: It’s the right thing to do, and not doing it could rile our corporate allies. But there’s another reason that has been overlooked. When the NCAA signed that contract extension with Indianapolis back in 2010, both sides agreed that if March Madness games ever needed emergency relocation, Indy would be the “backup event site.” Should the NCAA end up in a controversy so heated it needs to move an event, we’ll be the ones to benefit—provided we’re not the place causing the trouble.
That might not be the purest motive. But surely the NCAA, of all enterprises, won’t begrudge us a bit of opportunism, so long as it serves a good cause.