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Leaving the Field

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Leaving the Field

Facing complex legal and regulatory challenges, the NCAA relinquishes much of its historical authority over college sports. November 17, 2021
Education

A new era in college sports governance is coming. On November 8, the NCAA released a revised draft constitution that radically shifts power from itself to the three college sports divisions and the athletic conferences. The new constitution, likely to be approved at the January NCAA membership meeting, leaves the most important work of rules generation to a Division I Committee that will have to resolve the competing interests of a diverse and fractious membership.

The sudden urgency of this effort after years of dithering is driven in part by the Supreme Court’s recent unanimous decision in NCAA v. Alston, which upheld a ruling by the Ninth Circuit that struck down the NCAA’s caps on student-athlete academic benefits on antitrust grounds. Legally, the Alston decision is a narrow one, but the Court’s rhetorical hostility to the NCAA was striking. The decision signals the end of the deference the NCAA has enjoyed in federal courts—and on which it had come to depend. Any restrictions on athletes’ benefits imposed in the name of institutional integrity or competitive parity will now be increasingly vulnerable to challenge in those courts.

The NCAA’s paternalism may turn out to have been the only thing tying the SEC and Big Ten to other Division I conferences like the Patriot League and the Ivy League, whose institutions have much smaller athletic budgets. It seems likely that, at least in the Football Bowl Subdivision (FBS), the bigger conferences will eventually break off to form a separate super-division in pursuit of ever greater television revenues. Private institutions like Stanford, Northwestern, Vanderbilt, and Notre Dame, which even now must manage a fine balance between big-time sports and academics, may soon face the choice of whether to continue competing against schools that want to move toward a quasi-professional model.

Confronted with hostile state legislation, the NCAA amended its rules this year to permit college athletes to exploit their name, image, and likeness (NIL) for financial gain. This means that athletes can be spokespeople for local businesses, create sponsored social media content, and sell jerseys bearing their names directly to the public. The University of Alabama’s star quarterback, Bryce Young, signed nearly $1 million in endorsement deals before the current season even started. A player earning this kind of money is a professional, even if he’s not being paid directly by his university.

The threat that NIL payments pose to institutional integrity seems obvious, but the NCAA’s new constitution fails even to acknowledge this problem, settling on the question-begging formulation that it now “embraces” NIL but still prohibits “pay-for-play.” Developing common-sense rules for NIL may be the most important thing the Division I Committee could do to keep college sports from drifting toward professionalization, but Alston and state regulation add an extra layer of complexity.

The Knight Commission on Intercollegiate Athletics, which promotes reforms that would align college sports with universities’ broader educational mission, recommended last December that FBS college football be governed separately from other sports. This makes intuitive sense, given the outsize revenues football generates. Without its rhetorical and affective associations with the non-revenue-generating sports, however, FBS might begin to look more and more like a business and the players more and more like employees. That would mean trouble, because in late September, Jennifer Abruzzo, general counsel for the National Labor Relations Board, issued an internal memo stating that she views Division I athletes, at least potentially, as employees of their universities. Under the National Labor Relations Act, employees have the statutory right to engage in concerted activity, including collective bargaining. It’s doubtful that any Division I athletic director wants to sit across the table from an AFL-CIO field rep negotiating “work rules” for women’s volleyball practice.

The Knight Commission has proposed a revised governance model that would emphasize that the primary purpose of college sports is to promote the education, health, and well-being of college athletes. That model would require athletic departments to commit a defined proportion of their revenues to these areas, and it would seek to end the arms race in coaching salaries and facilities by introducing voluntary spending caps. Recent stakeholder surveys confirm that many university administrators are embarrassed by the salaries they pay their football and basketball coaches and by the need to raise money for gaudy new locker rooms and training facilities. Imposing such spending caps, however, would require a congressional antitrust exemption.

“Sports,” the late Michael Novak wrote, “are a form of godliness. That is why the corruptions of sports in our day, by corporations and television and glib journalism and cheap public relations, are so hateful.” These corruptions come with the ticket revenues and license fees that fund the practice fields, weight rooms, and training tables that allow college athletes to pursue their sports to their logical ends: higher, faster, stronger; more beauty, more drama, more meaning. We are all implicated in this system, for better and for worse.

A University of Nebraska football fan whose newborn son wore a red “N” onesie home from the hospital and who didn’t go to college herself but drives three hours on fall Saturdays to tailgate outside Memorial Stadium is unlikely to think of the players she cheers on as an exploited class. Of course, some of those players will pay a tremendous physical and cognitive price later in life for having played football—and their universities currently make little or no provision for their ongoing care. Such are the difficulties of college sports governance, where the strongest sentiments of family and community collide with some hard realities.

Some who disapprove of football for its violence and for the intensity of the loyalties it generates see all those fans filling stadiums as a sign of cultural decline. Others, who find in football a reflection of rugged democratic values, see such raucous gatherings as a sign of cultural health. Some things in college sports need fixing. The misalignment between the NCAA’s rhetoric and the increasingly corporate style of Division I athletic departments has become impossible to ignore. Even so, the Division I Committee’s mission should be one of both preservation and change. Its members should remind themselves of what is ennobling in college sports, as well as what is sometimes cynical and mercenary. A new governance structure that prioritizes academic integrity and the health and education of the athletes would help renew faith in another troubled American institution, one that many of us still want to believe in.

Photo by Justin Tafoya/NCAA Photos via Getty Images

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