Joseph Palumbo
Arts and Entertainment Editor
(Creative commons photo)
After years of bitter controversy, the National Collegiate Athletic Association held a historic meeting on November 15, 2021, concerning the organization’s future in the decades to come. This meeting arose in the wake of several scandals involving the NCAA, in addition to its long-held controversial practices as an organization.
Since its founding in 1906, the NCAA has been firmly established as the regulating authority over American collegiate sports. Currently, the organization is affiliated with over 1,200 colleges, universities and other institutions from across North America, and has taken in over $1 billion in ad revenue. The majority of their funding comes from the Division I Men’s Basketball Tournament, more commonly known as “NCAA March Madness.”
Several commentators, such as Joe Nocera of The New York Times, have questioned the legality of the NCAA’s previous restrictions on the payment of players. Economists agree that the organization’s compensation caps for basketball and football players benefited their universities at the expense of athletes in a rent-seeking scheme, a practice in which they profit not through honest business but by gaming the system for their exclusive benefit. By implementing these caps, the NCAA has been labeled a “cartel” by several economists and legal experts, including the Antitrust Bulletin and the Southern Economic Journal, for partnering with universities to price out competitors in college athletics.
On June 21, 2021, the U.S. Supreme Court unanimously ruled on behalf of college players that the organization indeed violated antitrust law. Originally filed by Shawne Alston in 2014, the case of NCAA v. Alston is now considered the longest antitrust case in American history. Rebuking a claim from the NCAA that they were exempt from such laws due to a supposed distinction between amateur and professional athletics, Justice Neil Gorsuch stated that the organization cannot declare a legal restraint “immune from scrutiny” by simply relabeling the nature of their business. In the ruling, Gorsuch also referenced evidence from the original case in the district court for the Northern District of California that the NCAA had not maintained a consistent definition of amateurism.
In a concurring opinion, Justice Brett Kavanaugh added that long-held traditions in collegiate sports “cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate…the NCAA is not above the law.”
In the summer of 2021, NCAA President Mark Emmert claimed: “The goal is to make sure that we can align authority and responsibilities, get that right between campuses and the conferences on the national level.” He elaborated that the changing environment of college sports has radically accelerated, influenced by many factors including the expectations of student-athletes, differences in programs that exist across the country, changes in the legal environment, and “political risks that need to be attended to.”
Emmert, previously one of the more vocal opponents of reforming the organization’s key tenets, especially with regard to paying student-athletes, later clarified his position on the new NCAA constitution during the recent November 15 meeting, stating: “I don’t see this document as radically transformational, but what it does is it creates the structure around which each of the three Divisions can now go forth and create rules, bylaws, structures that can, based upon their unique circumstances, be as transformational as they choose to be.”
While student-athletes will remain without a formal salary—often called “pay for play”—changes resulting from previous legal action against the NCAA have allowed them to earn money from the use of their name, image and likeness. This decision resulted from a 2014 lawsuit brought forth by former UCLA basketball player Ed O’Bannon and several other collegiate athletes, in which they successfully sued the NCAA for using their likeness in EA Sports video games without their knowledge or consent, nor in exchange for any compensation.
The preliminary consensus from the association concerning the new articles of the constitution was supportive, but minor revisions were required before formally adopting them. The new constitution concerns the underlying principles of the NCAA and their members, including emphasis on the academic experience of players, rules governing integrity and sportsmanship, diversity and equity, institutional control, and general well-being of the student-athlete. It will also outline how the association is organized, defining its duties and authority, proposed changes to the composition of the Board of Governors, and the financial structure of the association.
On December 17, 2021, the NCAA unanimously adopted the final recommendations from its constitutional committee. All that remains is the vote that determines if the constitution itself will be adopted. If that happens, it will give more autonomy to all three NCAA divisions in how they govern themselves, with a focus on the physical and emotional well-being of student-athletes. Student-athletes will also be eligible to serve as members on the NCAA Board of Governors, provided they are appointed within a four-year period of graduation.
On January 20, 2022, the NCAA will tally its final vote for the new constitution. If it is formally adopted, all three divisions of the association will be responsible for ensuring that its rules are consistently upheld. “This constitution is not for today and tomorrow,” said West Virginia University athletic director Shane Lyons. “It’s for 10 years from now, 20 years from now. What’s, potentially, the association going to look like?” This question will remain relevant as long as the NCAA walks the line between its identity and its “bottom line.” If the association continues to unfairly profit off student-athletes, upon which its very existence depends, more backlash may strike a traumatic blow against amateur college athletics.
