College football has hit a new low. Last month, Devon Gales, a sophomore wide receiver on the Southern University Jaguars football team, suffered a severe neck injury in a game against the University of Georgia. The injury resulted in Gales losing most movement in his limbs and torso. There is some hope for a fuller recovery, but the injury is a compelling reminder of the inherent dangers of playing football.
While the particular play that resulted in Gales’ injury did not appear especially violent, the circumstances in which the game was played raise important questions about whether certain classes of players are placed at increased risks of injuries. Gales was injured in a so-called “guarantee” game. Guarantee games are one of the many ignominies of contemporary college sports. The premise is often simple—a powerhouse athletic program pays a vastly overmatched opponent an appearance fee (or revenue guarantee) to travel to its campus and get trounced before the home crowd.
The win/loss result of these games is almost never in doubt, with game officials sometimes resorting to a running clock in order to minimize the embarrassing nature of the display. The powerhouse gets the benefit of an in-season scrimmage; the overmatched and under-resourced opponent gets a check. It is a classic quid pro quo arrangement with demoralizing and, in the case of football, dangerous implications.
Southern is a member of the Southwestern Athletic Conference (SWAC)—one of two Division I conferences made up exclusively of historically Black colleges and universities (HBCUs). The Mid-Eastern Athletic Conference (MEAC) is the other. HBCUs have been hit hard by declining state funding and other revenue pressures. For example, Florida A&M University (FAMU)—a member of the MEAC—endured a cumulative loss of almost $194 million in state funding between 2006 and 2013. Another SWAC-member, Grambling State University, saw its state funding decline 53% between 2008 and 2014. These cuts are especially debilitating for HBCUs because they tend to have smaller endowments and the socioeconomic backgrounds of their students often render large tuition increases untenable.
As a result, the number of guarantee games played by MEAC and SWAC football teams has increased significantly over the last decade. In the five seasons spanning 2006 to 2010, MEAC and SWAC teams played a combined thirteen games against opponents from the wealthiest athletic conferences. In the successive five seasons—2011 through 2015—the number of guarantee games increased to 31. The average score in these games was 55-8, with score differentials of more than 55 points in about a third of them.
I believe guarantee games are a perverse form of exploitation which place players in the role of sacrificial lambs. And as these games pertain to HBCUs, there is a disgusting historical context. In 2013, a federal judge found that the state of Maryland engaged in rampant program duplication that has fostered the progression of the state’s traditionally White institutions, at the expense of its HBCUs. And this is not isolated behavior. HBCUs have long been disadvantaged to the benefit of many of the institutions staging these lopsided spectacles. So guarantee games often become accidental history lessons sanitized by the revelry of one of our favorite pastimes.
Beyond the philosophical objections, Gales’ injury prompts me to wonder about the legal implications of guarantee games, specifically, whether these games place players at risks exceeding the assumptions associated with choosing to play football. If so, then schools, conferences and the NCAA would be subject to damages for resulting injuries.
The lack of competitiveness is a big reason why the powerhouses schedule these games. The promise of a six-figure check is why the overmatched schools show up. So these games are not premised on being competitive contests, and it is this lack of competitiveness that creates the higher risks.
Vast disparities in programmatic resources are also evidence of increased risks. For example, the five Southeastern Conference (SEC) schools that faced MEAC and SWAC football teams between 2006 and 2015 collectively generated almost a half billion dollars in revenue in 2013. This total is almost three times the combined revenue for twenty programs in the MEAC and SWAC (data for two football schools was unavailable). Resource disparities have implications throughout the student-athlete experience, from recruitment to facilities to academic support to training and finally to game day performance.
A critical piece of information in assessing the prospects of legal liability arising from these games is injury data. Do players on overmatched teams experience a higher number or more severe injuries in these games? Are there longer-term effects that can be associated with, say, the number of guarantee games a player endures?
Surely such cases would be difficult to prove. But the underlying questions should be explored, ideally by schools and the NCAA. In the meantime, these perverse arrangements should be banned. They only continue a history, literally and symbolically, of exploiting black bodies to the benefit of the wealthy and powerful—while increasing the potential of legal liability among schools least able to afford it.
The author is a professor at Saint Louis University School of Law. He can be reached at firstname.lastname@example.org or on Twitter at @TheEdLawProf