The Wall Street Journal
November 15, 2021
The National College Athletics Association had a brutal summer. It lost a landmark case in the Supreme Court that loosened its tight grip over college sports. It endured scrutiny from federal lawmakers amid a flurry of state laws that did away with the association’s longtime ban on college athletes making money on their likeness.
Facing these gale-force headwinds, the NCAA committed to self reflection. Now it will take the first formal steps toward something that was once hard to imagine: surrendering its control of governance in large swaths of college sports.
The NCAA will convene a special “virtual” convention of its member institutions on Monday to discuss the draft of a new constitution for the association. A 22-member constitutional committee will parse feedback from this session and present a final version for approval to the NCAA Board of Governors in January.
The proposed new constitution reduces the role of the NCAA in many areas of policy and enforcement, handing those powers to the boards that govern Divisions I, II and III of college sports. The NCAA is left mostly to operate championships and maintain rules of play for each sport.
While the document embraces the newfound ability of college athletes to profit from their name, image and likeness, it explicitly prohibits schools from paying athletes to play.
“The big takeaway of the constitution is that the NCAA loses a lot of authority over Division I,” said Amy Perko, chief executive officer of the Knight Commission on Intercollegiate Athletics, an advocacy group that aims to reform inequities in college sports. “It puts the future of Division I, everything from revenue distribution to enforcement, in the hands of Division I leaders to define for the future.”
This shift is a direct result of the Supreme Court’s unanimous ruling in NCAA v. Alston in June that the association violated antitrust laws by capping education-related benefits available to athletes. The ruling, coupled with a harsh concurring opinion by Justice Brett Kavanaugh, raised questions about the NCAA’s authority to set national standards without running afoul of antitrust statutes.
NCAA president Mark Emmert said in July that the association sought “wholesale transformation” in rewriting its constitution to “set a sustainable course for college sports for decades to come.”
Yet even some of the people involved in drafting the new constitution aren’t sure that its effects will be sweeping. Kendall Spencer, a former track athlete at New Mexico who serves on the NCAA’s 22-person constitutional committee, said that many athletics administrators told him they had never read the old constitution and, after finally doing so, did not take issue with its language.
“That tells you, is this really something where the problem is with the constitution? Or is the issue with enforcement?” Spencer asked. “Are people not aware of what’s in there and they’re not enforcing it?”
The new constitution—less than half as long as the existing document—narrows the NCAA’s role within college athletics to one of a near-figurehead and cedes enforcement and rule-making power to Division I, II and III. It leaves the association to conduct most national championships, establishing rules for fair competition, developing health and safety protocols and liaising with the United States Olympic and Paralympic Committee.
It is up to each division to organize and govern itself, determine academic eligibility standards and regulate what financial benefits athletes can receive either tied to their education or the commercialization of their name, image and likeness. This means that the Boards of Directors for each division, which previously deferred to the NCAA’s president and Board of Governors, have a greater say in how the revenue is distributed between member schools and how rules are enforced.
No direction was given, however, on how the divisions would go about making sure members follow the rules. “It’s a huge question mark in terms of how enforcement will be handled,” Perko said.
Notably, the new constitution does not use the word “amateur” in reference to the operation of college sports. It’s a substantial concession by the NCAA, which was steadfast in most of its 115-year existence in defining college athletes as unpaid students enrolled at universities as much for their education as for their sport.
College athletes may not be amateurs, but the draft constitution makes clear that they “may not be compensated by a member institution for participating in a sport.” Financial avenues for athletes are limited to education-related benefits, in accordance with the Alston ruling, and “commercialization through use of their name, image and likeness.” It’s up to the divisions to set the rules for these awards, according to the draft constitution.
The constitution also opens the door for members to split into further subclassifications beyond Divisions I, II and III, something that has increasingly been discussed in recent years as the five conferences in the top tier of Division I football grow increasingly wealthy.
The new constitution will include athletes’ perspectives at the highest level of NCAA governance by adding one former athlete representative to the Board of Governors for the first time. Previously, the NCAA gave one athlete per division a nonvoting role on the divisional Boards of Directors.
At the same time, however, the new constitution guts the power of the Board of Governors, making it unclear how much louder athletes’ voices will ultimately be. The body’s size will decrease to nine from 21, featuring four representatives from Division I, one each from Division II and III, two independent members and one athlete. Its purview will be narrowly limited to setting the NCAA’s budget, overseeing its president, handling the association’s legal affairs and coordinating meetings between various NCAA committees.
“This is window dressing,” said Ramogi Huma, an advocate for college athletes as executive director of the National College Players’ Association, of adding an athlete to the Board of Governors. “They stripped the power of that board.”
The constitutional committee sought to further support college athletes by expressly stating, in its principles, the NCAA’s commitment to protecting and enhancing the “physical and mental health” of athletes, long a rallying point for college athlete advocates.
The NCAA does not have a great track record for putting its principles into action, however.
“Currently the NCAA constitution has a principle of gender equity. But we know that there were problems,” said Perko, alluding to the criticism the NCAA weathered last March during the men’s and women’s basketball tournaments. Social media posts by players revealed vast differences in meals, weight rooms and practice facilities made available to men and women at their basketball tournaments in Indianapolis and San Antonio, respectively.
In response, the NCAA commissioned an independent review of its practices by law firm Kaplan Heckler & Fink, which revealed substantial disparities in how the NCAA promotes men’s and women’s sports. For instance, when distributing more than $600 million in revenue to members annually, the NCAA allocates 28% of the money based on performance of the men’s basketball team in March Madness without considering how the women’s team fares.
As a result of the findings, the NCAA has committed to some small changes, such as extending the “March Madness” branding to the women’s basketball tournament. An explicit commitment to promoting gender equity remains in the new draft constitution.
“There’s a huge difference in promoting and enforcing,” Huma said.