Future of the NCAA (Part III)

(In Part I we looked at Enforcement, and in Part II the BCS schools separating from the NCAA and conference realignment.  In this final post in the series we look at the various legal challenges the NCAA currently faces, and their potential long-term impact.)

In 1984, the United States Supreme Court in NCAA v. Board of Regents ruled that the NCAA violated federal antitrust law by controlling and restraining the television rights of its member institutions, and that those universities and colleges were free to negotiate their own television rights agreements.  Needless to say that case has been transformative.  What was a “game of the week” each fall Saturday has since become a smorgasbord of televised games to be enjoyed virtually any day of the week.  This has spurred unprecedented financial windfalls to participating schools and conferences, and shaped the college athletics landscape we have today.

O’Bannon v. NCAA could be this generation’s Board of Regents.  In O’Bannon, former UCLA basketball player Ed O’Bannon and other former NCAA student-athletes filed suit claiming the NCAA and its licensing partners violated antitrust law by not compensating them for the use of their “likeness” in video games, video archive programming  (i.e. old games shown on ESPN Classic) and other similar endeavors.  If you’ve ever played college football or basketball video games you know many of the players strongly resemble actual players, both in terms of physical characteristics as well as the number on the back of the jersey.  This is an example of what the plaintiffs refer to when they use the term “likeness,” and this is what they are complaining about and seeking compensation for.  The case began only with former student-athletes seeking damages beginning from the time they finished school and thereafter; however, current student-athletes were (somewhat controversially) recently added to the group of plaintiffs in order to claim damages for the time they are in school as well.  There have been several preliminary hearings, and things have not gone well for the NCAA thus far.  The case is on track to go before the judge for class certification this summer, with the trial to take place sometime in early 2014.

If the NCAA were to lose, the ramifications would be immense.  First there is the financial component, which could be tens of millions in damages or some say hundreds of millions.  There is also the complete reversal of decades of policy in which compensating student-athletes for anything related to their athletic ability outside of a scholarship has been forbidden.  Changes to both rules and structure would certainly need to be put in place moving forward in what would be a new era of NCAA athletics.  On the PR front, the hits have already begun, and will continue to come throughout the pretrial process.  We’re starting to see documents released which are, at best, embarrassing to the NCAA.  You can be sure more documents will become public as the case continues on, and each new day increases the odds of a crippling revelation.

If O’Bannon wasn’t enough, the NCAA is facing several other legal challenges as well.  You thought the USC / Reggie Bush affair was all over?  Think again.  Former assistant football coach Todd McNair is in the middle of a defamation suit against the NCAA for the way it conducted its investigation into he and the USC football program.  Mr. McNair claims the NCAA maliciously disregarded the truth and used false information to come to its conclusions and penalties, and as a result his career and future earnings as a coach were unjustly diminished.  In November, a judge ruled against the NCAA’s motion to dismiss the case, and in his opinion blasted the NCAA for an investigation he called “malicious,” and NCAA staff members who were “over the top.”

A similar case involves former State University of New York at Buffalo men’s basketball coach Tom Cohane.  Though less publicized, Cohane has the potential to markedly change how NCAA investigations are conducted going forward.  Mr. Cohane sued the NCAA claiming defamation and a violation of his due process rights under the Fourteenth Amendment, alleging the NCAA knowingly used information provided by the university that was false and coerced, in order to tie him to the violations.  Student-athletes have since given sworn statements that they were threatened and pressured to point the finger at Mr. Cohane, even though they never saw him do anything wrong.  The litigation then went on a complicated but potentially significant procedural journey to determine whether the NCAA could be considered a “state-actor,” a necessary step for Mr. Cohane to claim Fourteenth Amendment due process protections.  The 2nd Circuit Court of Appeals said since (if the facts were proved) the NCAA essentially acted along side the (undeniably state actor) public university to investigate and discipline Mr. Cohane, it could be considered a state-actor in this circumstance.

What does all this mean?  Until now, this issue had clearly been settled by the United States Supreme Court in Tarkanian v. NCAA, when it said the NCAA is not a state-actor and therefore does not have to afford due process rights to those it investigates and punishes.  This flexibility has allowed the NCAA to be more aggressive with its investigations and have a lower burden of proof in order to impose penalties.  But now with Cohane, an example may exist whereby due process rights would have to be provided, and higher burdens of proof would have to be met.  The distinction between the two cases boils down to the level of cooperation between the university and the NCAA during the investigation.  In Tarkanian, the university and its coach Jerry Tarkanian were denying all the allegations, and fighting together with the NCAA as their common adversary.  Therefore the Court said the NCAA was not a state-actor in that instance.  In Cohane, however, the university was acknowledging the violations against Mr. Cohane and allegedly working with the NCAA in “joint activity” to make sure the allegations stuck to him so he could be fired for cause.  So in that case the 2nd Circuit says the NCAA could be a state-actor. (The NCAA appealed the 2nd Circuit’s decision, but the Supreme Court declined to hear the case).  This is a case to watch through its completion, as it could dramatically change how both the NCAA and universities conduct investigations in the future, and the level of due process afforded individuals who find themselves in the middle of them.

All that and we haven’t even touched Miami or Penn State.  Looking back on this series of posts, it’s overwhelming to think about what the the NCAA faces in the coming months and years.  My view is the NCAA’s back is against the wall, and it must reinvent itself or it will become obsolete, if it isn’t already.

Follow Daniel on Twitter at @DanielHare.

Will Texas and Texas A&M be Required by Law to Play Football?

Guest author: Christian Dennie, Esq.

Following Texas A&M University’s (“A&M”) departure to the SEC, sports fans all across Texas missed out on the annual University of Texas (“Texas”) v. A&M football game.  There is no certainty whether the game will be played again, at least in the near future.  As a result, State Rep. Ryan Guillen of Rio Grande City introduced a bill seeking to require the two universities to compete against one another. House Bill 778 does not indicate when the game would be played, but does offer penalties levied against the institution refusing to play in the annual game.  The restriction recommended is the loss of athletic scholarships.


This post originally appeared on bgsfirm.com.


Future of the NCAA (Part II)

(This is the second installment in a series discussing the future of the NCAA.  In Part I, we looked at the issue of enforcement.  In Part III we will look at the various legal problems currently plaguing the NCAA and their potential impact on the future of the organization.  In this post we will be looking at super-conferences and the possible separation of the BCS schools)

I hesitate to even begin writing on the topic of super-conferences, for the simple fact that by the time I’m finished it’s highly possible news will have broken that fundamentally changes the framework of the discussion.  That’s how fluid the situation is.  At any moment the Big Ten could gobble up two more schools in a bid to be the first to 16, which very likely leads to the Big 12 making a move, etc.  It appears this scenario (or one like it) is almost inevitable.  If so it will be because there is more money and stability in the super-conference model than in the model we have today.  And there very well could be.  Conference leaders won’t want to stand pat for fear of being left out, looking vulnerable, looking dated and behind the times, losing members to other conferences and/or losing out on television money.  They like the idea of adding major media markets to their footprint, and the perceived exposure and visibility their new additions provide.  And over the past two years, we’ve been rapidly moving toward super-conferences, making a u-turn hard to envision.

Having said all that, plenty of issues persist that could prevent the super-conference takeover.  After all, it could have happened already, but it hasn’t.  Since everything begins and ends with finances, if things break down that will be the likely cause.  Every school added to a conference means dividing the television money into one more share, so look for conferences to study in depth the incremental financial impact of adding schools. If a league’s current schools would see a reduced financial distribution after expanding, that’s a tough pill to swallow regardless of the other benefits (stability, exposure, etc.). And with the recently signed television deals it’s hard to find schools that are worth the extra $15 or $20 million plus per year it would take to keep the other members’ shares at or above even.

Another reason super-conferences may not happen is a fear on the part of conferences like the SEC that the new BCS football playoff would become a matchup of the four super-conference champions (this wouldn’t have to be in the official selection rules, but could be a bias committee members could reasonably develop over time).  This jeopardizes the possibility of multiple schools from the same conference qualifying for the playoff, which in many years would do the sport a massive disservice (e.g. 2011 BCS Championship Game participant LSU could have been left out).  Think in college basketball terms: How nuts would it be to only have conference champions represented in the NCAA Tournament?  On the other hand, can you imagine a 16 team BCS super-conference (i.e. Big Ten, Pac-16, Big 12/ACC) not claiming one football playoff spot for its champion?  This is the conundrum created by limiting the playoff to four teams in the midst of expanding and consolidating BCS conferences.  Oh and don’t forget the wrenches that are independent Notre Dame and potentially BYU.  Super-conferences may very well happen in spite of these issues, but if they do, I believe the push toward a larger playoff would begin immediately and eventually become reality.

In addition to super-conferences, the other possible structural change being discussed is the BCS schools completely separating from the NCAA.  While anything is certainly possible, I don’t see this as a realistic scenario anytime soon.  What happens when the schools separate?  Will there not be any rules? Of course there will be.  And who writes, interprets and enforces those rules?  The BCS presidents aren’t going to and neither are their ADs.  No, they would have to delegate that authority to a newly created organization that is similar to the NCAA but just for the BCS schools. And what is the benefit to that? There isn’t much of one; though an argument could be made that if you think the NCAA is beyond repair, it is better to simply start over.

I think a far more likely scenario is for the BCS schools to create a new football division under the NCAA umbrella.  The distinctions would be similar to those we already have between Football Bowl Subdivision (FBS) and Football Championship Subdivision (FCS).  There would be an opportunity within this model to legislate BCS football completely differently from the non-BCS FBS schools, and impose lofty standards for those schools wanting to move up into the BCS.  A BCS division would mean acknowledging that the Pac-12 and SEC have little in common with the MAC and Sun Belt when it comes to football.  And decisions could be made amongst the BCS leadership without having to worry about how they’re going to affect the schools in those leagues.  The BCS division model (rather than complete separation) also allows schools to continue competing in all the other sports as a Division I member as they have been.  Nobody wants to see two college basketball championship tournaments with Duke and North Carolina in one and Gonzaga and Butler in another.

I think we’re going to see the four super-conferences finish coming together within the next five years, and an expansion of the football playoff in the next 15.  It will be fascinating to see which way it goes, but let’s just hope Butler and Duke are still playing in the same basketball tournament at the end of it.

Follow Daniel on Twitter at @DanielHare.

Future of the NCAA (Part I)

(This is the first installment in a series of posts addressing the future of the NCAA.  There are so many facets to this it wouldn’t do the topic justice to cover it all in one post.  We’ll look at the idea of super-conferences and/or the complete separation of the BCS schools in a future post, as well as the impact of ongoing and possible legal troubles.  Today, however, the topic is enforcement.)

The NCAA has problems, particularly when it comes to the enforcement of its rules.  The problems are now so deep that John Infante in his Bylaw Blog has floated the idea of a federal government takeover of the enforcement program.  Whether it be USC, Ohio State or Miami, recent investigations have been sloppy and endless, with unsatisfying results.

The crux of the issue is the NCAA has an inherent problem with its investigation and enforcement procedures, in that it does not have the same discovery tools at its disposal that an attorney would in preparing for a trial.  Specifically, the NCAA does not possess the power to subpoena witnesses to testify, nor can it compel the production of documents.  Worse, whatever testimony and documentation it does get doesn’t come under oath (with penalty of perjury if it’s untrue), lessening its value.

It must be unbelievably frustrating for the NCAA’s enforcement staff.  Step out of athletics for a moment and imagine a typical legal situation: a guy runs a stop sign and slams into your car.  In the legal system you would have the ability to compel witness testimony (under oath) both in depositions and at trial, as well as compel the production of any and all documents relevant to your case (like for example his expired drivers license!).  In the NCAA system, however, you can’t compel much of anything.  You’re stuck looking for people willing to talk to you and for documents people are willing to share with you.  All of a sudden what seemed like an open and shut case (“he ran a stop sign and slammed into my car”) becomes a lot more challenging, and takes a whole lot longer.  It was these frustrations that apparently led NCAA investigators to find a (potentially unethical) way around these cumbersome limitations in the Miami case.  Perhaps more telling, an NCAA investigator defending the tactics to the Sun Sentinel raises the concern that this wasn’t one individual going rogue but rather manifestations of a much larger cultural issue.

So how can we improve the rules investigation and enforcement process?  It’s true that if the federal government took over it would have all the discovery tools of the legal system and we’d avoid some of these issues.  What comes with those advantages though are several major disadvantages, two of which stand out.  First, as Mr. Infante noted, politics is injected into the process – never a good thing.  And don’t think for a second our senators and congressmen are above getting involved in this.  We saw several key political figures weigh in on conference realignment, and now the Pennsylvania governor and other legislators are trying to bully the NCAA on the Penn State case.  Second, timeliness – you thought the NCAA was slow?  How about the federal government.  The Office of Civil Rights took 14 years investigating a Title IX complaint into USC’s rowing facilities.  14 years! (For more on this check out the Chronicle of Higher Education and the Title IX Blog.)  So there’s definitely a risk that with the federal government you’d be replacing bad with worse.

I do, however, think there is real merit to the idea of outsourcing the enforcement process to an outside group.  It may not have subpoena power, but at least it can operate objectively and without the natural conflicts that exist when you’re policing your own membership (I think this is something that should be looked at with individual campuses as well – outsourcing the investigation / enforcement component of the compliance function to avoid conflicts within the department).  I’d also be interested in exploring the possibility of placing language in employment contracts for coaches and staff, and financial aid agreements for student-athletes, which imposes a penalty for not cooperating with investigations for some limited amount of time after they leave the institution.  This could certainly be financial or for student-athletes it could be something like putting a hold on transcripts.  For non-university people of interest, you could impose penalties similar to what the NCAA currently does for “boosters” found to have participated in violations: no involvement with the university’s athletic program (e.g. can’t donate, can’t sponsor) for some period of time.  Further steps could include bringing the professional sport leagues into the process so that players and coaches can’t avoid cooperating by going to the next level.

The NCAA’s investigation and enforcement process is certainly broken; it will be interesting to see what, if anything, is done in the coming months and years to fix it.  In the meantime, at least the NCAA can say it doesn’t take 14 years to complete an investigation.


Follow Daniel on Twitter: @DanielHare