In the rapidly changing environment of college sports, the NCAA is faced with the daunting task of rewriting its constitution that will apply to hundreds of thousands of athletes across the nation. [1]Former U.S. Defense Secretary Robert Gates facilitated this reconstruction with the help of a 23-member commission which drafted a 19-page document that aims to better accommodate student-athletes instead of focusing on the governing operations of the organization. [2] Final recommendations regarding the document were submitted to the Board of Governors on December 15th, and the constitution could be approved in a vote at the January 2022 NCAA Convention. [3]
The most important aspect of this constitution is how, if at all, the money and power shift. The new NCAA constitution first tackles whether or not athletes can profit from their name, image, and likeness (NIL) and if they can receive “pay for play.”[4] On the first issue, the NCAA is fully supportive of a college athlete’s right to profit financially from the use of their NIL. [5] On the other hand, “pay for play” faces full opposition because the NCAA still refuses to treat its athletes as salaried employees. [6] The “pay for play” stance in the new constitution could be rendered moot if the Supreme Court continues to challenge NCAA regulatory schemes, as it did in NCAA v. Alston (Holding the NCAA was in violation of antitrust law for limiting money athletes can receive for academic-related expenses). [7]
Apart from the rules for athletes in the proposed constitution, there are also major changes in the governing power of the NCAA. The Board of Governors will shrink its membership from 21 to nine, with the inclusion of a former student-athlete, in order to streamline the decision-making process. [8] There will also be student-athletes serving on the Board of Directors and the Presidents’ Councils for each division in order to increase athlete representation at each level. [9] Even more impactful, the NCAA is delegating some of its power to each division, providing greater autonomy for the divisions to structure themselves and oversee their own budgets how they see fit. [10]
After the new constitution is adopted, the second phase of the NCAA’s work will involve Division I institutions utilizing their new-found autonomy to sort out membership requirements, spending controls, and areas of investment. In turn, Divisions II and III likely face little to no changes within their governance structure even with the authority to do so. [11]
The decision-making for Division I will come from the NCAA Division I Transformation Committee, led by Ohio University’s athletic director Julie Cromer. [12] Much of their work will begin in late January once the proposed constitution is finalized. [13] A main task of this committee is to determine how financial allocations will impact student-athletes and how to deal with a substantial budget gap among Division I programs. [14]
Shane Lyons, the chairman of the Division I Council, claims there is “a huge gap in Division I with schools roughly with $175 million budgets and schools with $4 million budgets,” gaps that are unheard of in Division II and III programs. [15] From this widening budget gap, Lyons suggests that larger schools within the Football Bowl Subdivision (FBS) may propose breaking away to create another division that would allow the wealthiest schools to further increase their power and revenue without the barriers of smaller programs impeding their decision-making processes. [16] This poses issues for any of the 130 FBS schools that wouldn’t make the cut because being in the FBS provides schools with the opportunity to increase their enrollment and fund their athletic programs at the highest level possible. [17] Division I also must consider how to manage the large sums of money FBS earns from the College Football Playoff (CFP). [18]
The CFP brings in $500 million annually that the Division I conferences, not the NCAA, have control over. [19] To assist the member institutions in deciding how to allocate these funds, organizations are stepping in to present alternative financial models that focus on supporting student-athletes. Most notably, The Knight Commission on Intercollegiate Athletics, an independent group that prioritizes the education and success of college athletes, “proposed a revenue sharing model [in response to the CFP] that it believes would curb the athletics arms race at the top of Division I and better support educational goals.” [20] This arms race is caused by the escalating salaries of coaches and the increasingly lavish facilities on the campuses of schools in the FBS. Schools are directing funds away from the education of their students in order to remain competitive. [21]
To curb the FBS’s excessive spending, The Knight Commission aims to define college sports as an academic enterprise rather than a commercial one. [22] The multimillion-dollar coaching salaries and facilities are changing the face of academic institutions that are meant to facilitate the knowledge of their students, to look more like for-profit businesses, but The Knight Commission believes the proposed constitution’s language requiring a commitment to core principles of education is a step in the right direction. However, it is unclear whether this move toward education and equity aligns with the desires of student-athletes. [23]
Although it is fairly certain that the proposed constitution will pass the final vote in late January, its future impacts on the structure of college athletics and student-athletes are largely unknown. The NCAA has placed the power to restructure into the hands of each division, and it is up to them to take into consideration the interests of the athletes when moving forward in this tumultuous time for college athletics.
References:
[1] Liz Clark, The NCAA is voting on a new constitution. Here’s what that means for college sports fans, Washington Post (November 15, 2021), https://www.washingtonpost.com/sports/2021/11/15/ncaa-constitution-college-sports/
[2] Id.
[3]Charlie Henry, Constitution Committee Introduces Draft Constitution, NCAA (November 8, 2021), https://www.ncaa.org/about/resources/media-center/news/general-constitution-committee-introduces-draft-constitution
[4]Liz Clark, supra.
[5]Charlie Henry, supra.
[6] Id.
[7] Liz Clark, supra.
[8] Charlie Henry, supra.
[9] Ross Dellenger, What NCAA Constitution Draft Tells Us: More Power, More Money for Schools, Sports Illustrated (November 8, 2021), https://www.si.com/college/2021/11/08/what-ncaa-constitution-draft-means-for-schools
[10] Id.
[11] Ralph D. Russo, For NCAA, year of upheavals leads to need for transformation, Washington Post (December 30, 2021), https://www.washingtonpost.com/sports/for-ncaa-year-of-upheaval-leads-to-need-for-transformation/2021/12/30/5ca07e96-699b-11ec-9390-eae241f4c8b1_story.html
[12] Id.
[13]Id.
[14] Dennis Dodd, With NCAA Constitution Changing, Will Powerful College Football Teams Effort to Formally Divide FBS, CBS Sports (November 18, 2021)
[15] Associated Press, NCAA Releases Draft of Streamlined Constitution That Would Give Power to Schools, ESPN (November 8, 2021)
[16] Dennis Dodd, supra.
[17] Id.
[18] Id.
[19] Associate Press, supra.
[20] Id.
[21] Tom McMillen and Brit Kirwan Op-Ed: The “Arms Race” in College Sports is Out of Control. Here’s How to Stop It, Los Angeles Times (April 11, 2021) https://www.latimes.com/opinion/story/2021-04-11/ncaa-alston-professionalization-coaches-salaries
[22] Associated Press, supra.
[23] Id.