All posts by Daniel Hare

College Athletes Can Form A Union: What’s Next?

The regional National Labor Relations Board in Chicago issued a stunning decision Wednesday, granting employee status and unionization rights to college football players at Northwestern University (PDF of decision here).  The decision will almost certainly be appealed to the national NLRB in Washington, D.C., and from there can move over into the federal appellate courts and ultimately the Supreme Court.  While we won’t have a final resolution to this issue anytime soon, the decision issued today was significant and will have immediate impact.

Remember, we’re less than three months away from a trial in the O’Bannon v. NCAA case which has been in the courts since 2009.  A judgment against the NCAA there would no longer allow it to profit off of student-athlete (or should I now call them employee-athlete-students?) images and likeness without compensation.

We also had a new case filed just this month directly targeting the cap on scholarship amounts, demanding that the free market determine what a school may offer a prospective student-athlete.

In January, the NCAA hosted sessions at its convention on the future of Division I athletics.  But the feedback was skeptical and the detail missing.  The presentation reeked of bureaucratic speak such as new committees and task forces.

Now with this NLRB decision, you get the feeling the entire student-athlete / amateurism model is going off the rails.  But what did the decision actually say and how does it apply?

It says the scholarship (walk-ons are excluded) college football players at Northwestern University are employees, and have the right to unionize and collectively bargain for compensation and benefits.  The decision focused mostly on the level of control the school, via its athletic department and coaching staff, has over its athletes.  It covered in depth the athletes’ daily routine, the hours spent on football, and the rules that must be adhered to in order to remain on the team and keep the scholarship.  Special emphasis was placed on the fact the scholarship is contingent on a number of different factors which all ultimately are controlled by Northwestern, the employer.

Northwestern tried to argue that a 2000 NLRB decision involving graduate-students at Brown University should control, and lead to a determination the athletes are not employees.  (I went through a detailed analysis of this last month).  The NLRB said the Brown case did not apply here, and even if it did, the result would be the same.

Presumably, today’s decision would allow other private university athletes to follow a similar path.  The NLRB does not govern public institutions, so athletes at state schools will have to navigate the unionization process in their own state under state law.

To this point, the College Athlete Players Association (CAPA) has not said it will pursue increased financial compensation and/or salaries for performance.  It’s focus has been on better health care as well as some type of structure to receive funds from likeness and image use, as well as sponsorship revenue (i.e. along the lines of O’Bannon case issues).  However, the authority granted by the NLRB today would certainly permit increased compensation to be included in any collective bargaining.

It’s also difficult to read today’s decision and not think it could very easily be applied to many other sports at many different levels down the road.  As I mentioned, the focus was much more on the time commitment of the athletes and the control the coaches and school have over them, rather than the large amount of revenue the athletes in major college football generate.  Many student-athletes in non-revenue sports and at smaller schools are on scholarship, put in the same hours, and are under the same university control.  It will be interesting to see which group of college athletes follows in Northwestern football players’ footsteps.

There are two key dates coming up soon as this process moves forward.  Northwestern must file a list of eligible employees with the NLRB (Chicago) by April 2nd so that an election can take place regarding forming the union.  Then, Northwestern has until April 9th to file an appeal with the national NLRB in Washington, D.C.  It most certainly will do that, and where it goes from there is likely a long, windy road through the federal courts.

Northwestern football players won a victory today.  What remains to be seen is whether, upon further review, the decision is confirmed or reversed.


Follow Daniel at and @Daniel Hare.



College Football Super-Division, Penn State and O’Bannon

I wanted to provide some brief thoughts on several hot topics in college sports today, so here we go:

College Football Super-Division

Back in February, I provided some analysis and predictions about the future of the NCAA.  Specifically I discussed the idea of four BCS super- conferences, the possible separation of those schools from the NCAA, and the possible creation of a new football division for the BCS schools.  The jury is still out on super-conferences (though things have stabilized for now with all but the SEC schools granting their television rights to their conferences), and defecting from the NCAA still doesn’t seem to have much momentum.  However the idea of a new football division is picking up steam.

The BCS schools, through the voice of their conference commissioners, are saying enough.  Their aggravated tone and sense of urgency leaps off the page.  No longer will they allow the simple majority of the “have-nots” to out vote them at every turn, on every initiative, and on anything they can’t or don’t want to pay for (stipends anyone?).  A fourth division is coming to an NCAA school near you, and it could be sooner rather than later.  Even the college athletics watchdog Knight Commission came out over the summer with a recommendation that the division be considered.

What does a fourth division mean?  Well, it depends.  Most importantly in my view, it restores some sanity to all Division I football programs and athletic departments.  The idea that schools in the Sun Belt or MAC are on playing the same game as those in the SEC or Pac-12 is ridiculous.  What’s worse, pressuring those schools, administrators, donors/alumni, coaches and athletes to compete with BCS level schools both on the field and in the financial arms race is unrealistic and harmful.

Penn State

The NCAA did something right this week by granting back some of Penn State’s scholarships taken away in the wake of the Sandusky debacle.  It simply had no business wading into criminal matters that it does not legislate; and while this certainly doesn’t make what it did to Penn State right, it provides hope there is at least some clear thinking going on today in Indianapolis.


As I’m writing this post, news is breaking that the O’Bannon plaintiffs have settled their dispute with two of the three defendants in the case, EA Sports and the Collegiate Licensing Company (CLC).  It appears EA Sports will no longer produce its college football game, though the terms of the settlement were not yet disclosed.  This of course still leaves the NCAA as the lone defendant, and the case against it will presumably continue.

Those of you who have been following the Ed O’Bannon case probably know we’ve been waiting for the big ruling regarding whether or not the plaintiffs will be certified as a class (dramatically upping the stakes).  The hearing on this issue occurred in June, and since then we’ve seen several procedural tactics but nothing too critical to the ultimate outcome of the case.

This week we’ve also seen the NCAA beef up its legal team, as well comment they are prepared to go all the way to the Supreme Court.  This isn’t too surprising at this point in the proceedings; and it will be interesting to see if the tough talk continues if/when the plaintiffs are certified as a class.

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Cal’s Stadium Financing ‘Revelations’ Not So Shocking

Recently Jon Wilner wrote an in-depth series of articles about the issues surrounding the financing of the University of California – Berkeley stadium renovation.  Cal’s athletic director Sandy Barbour responded via letter to the editor in the same paper a few days later.  There are a number of issues embedded in these stories, but one I found particularly interesting is the apparent shock the Board of Regents and other university constituents displayed when the latest financial report failed to meet expectations.

Before we get into this, let’s establish some context.  Originally the Board instructed the athletic department to retrofit the football stadium due to safety concerns caused by the fault line that runs right through it.  The rub was the funds had to come from outside revenue sources (i.e. a classic unfunded mandate).  As Ms. Barbour’s letter points out, Athletics smartly recognized that a retrofit only project wouldn’t inspire the philanthropy and other revenue production needed to cover the cost, so it proposed a plan to improve the facility in additional ways that would benefit donors, sponsors and ticket holders.  They would pay for these upgrades through a bond issue, with revenue from long-term premium seat licenses being used to pay off the debt.

While the project was still in the proposal stage and not yet approved by the Board, the athletic department collected “intent to purchase’ agreements from those who were interested in the licenses.  As of one critical 2009 report to the Board, these letters of intent represented roughly 2/3rds of the total available licenses.  This was seen as encouraging news and contributed to the Board approving the project.

Unfortunately, things have not gone as planned since that report.  Oh the facility has been built and by all accounts it is fantastic.  However the Recession hit full stride and not all those who committed to the licenses actually followed through, the on-field product hasn’t been great and interest on the loans is significant.  That’s when questions really started getting asked, with answers being met with skepticism.  And while the short term financial situation appears to be under control, there were and are valid concerns about the medium and long-term.

But what I find disingenuous is the apparent shock of some in and around the university to the recent “revelation” that when describing its progress at the time of the aforementioned 2009 report, the athletics department was referencing pledges or letters of intent, rather than actual sales.  Well of course they were.  The facility hadn’t even been approved yet.  What athletics essentially had at the time was a survey result of their top prospects: Q: “If we built this would you buy one?” A: “Yes.”  And we’re supposed to believe that brilliant and capable members of the Board of Regents, faculty and other university administrators were all confused or duped into thinking those were actual sales?  I don’t buy it.

It appears much more like they were hoping for the best and are now trying to claim ignorance since things haven’t worked out as planned.  Notice nobody is trying to claim anyone intentionally misled or falsified data; that would be going a bit too far.  At most what you hear is that it was a misunderstanding or mix-up of terminology, as Mr. Wilner notes in his investigative reporting:

A review of dozens of stadium-related interviews, memos and reports from 2009-11 found no evidence that Cal engaged in fraud. Internal documents usually specified that sales figures were based on intent-to-purchase orders, but school officials were less specific in their public comments.

The bottom line is Cal’s decision makers and stakeholders either knew or should have known the figures being used by athletics were pledges and projections, not actual sales.  They should also have been prepared for things to not go as well as the best case scenario.  To claim otherwise at this point just makes them look silly.

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Division II Academic Proposals Need Careful Review

NCAA Division II student-athletes graduated at a 55% rate in the most recent (2012) NCAA report (A student-athlete is counted as graduated if they complete their degree requirements within six years of initial enrollment).  The overall student-body graduation rate for the same time period was 48%.  This seven percentage point difference in favor of the student-athletes is slightly better than the most recent four years combined, so the trend is student-athletes are putting some distance between themselves and the general student-body.

This is good news right?  Apparently not good enough.  This month the Division II Presidents’ Council approved a report from the Academic Task Force recommending a number of changes to the academic requirements for Division II student-athletes.  These changes will go to the membership for a vote at the January 2014 NCAA Convention.  As a whole these recommendations reflect a dramatic change to the standards that, according to the recent numbers, have been working well.

The most significant change is an increase in the number of credit hours required each year to maintain “progress-toward-degree,” or eligibility.  The current rule is a student-athlete must earn 24 credit hours over the course of one academic year; the proposed rule would increase that number to 27. At the same time, the concept of “averaging” would be eliminated.  The Averaging Method says that if, for example, you earn 27 hours your freshman year and 21 your sophomore year, the average of 24 meets the eligibility requirement.  Eliminating that option would mean that same student-athlete would be ineligible due to only passing 21 hours in the most recently completed academic year (three short of the required 24).

There are serious questions I have with this.  First, what problem is Division II attempting to solve?  Graduation rates are significantly better than the general student-body and getting better.  So with everything else going on within the NCAA right now it’s hard to see why this is at the top of the priority list.  My best guess is its not so much trying to solve a problem as it is trying to improve the graduation rates of student-athletes above and beyond what they already are.  That’s a worth cause to be sure, but is withholding student-athletes from competition the best way to promote it?  A quote cited in the NCAA’s own story about these proposals is concerning:

“One, states are increasing(ly) tying a portion of a public university’s appropriation to persistence and graduation rates,” he said. “Those institutions with higher persistence and graduation rates, holding all other factors constant, are provided higher levels of funding than are those institutions with lower persistence and graduation rates.

“Two, components of the rating often utilized to rank universities are persistence and graduation rates.  The higher the rates, holding all other factors constant, the higher the ranking and, presumably, the easier it is to recruit students.” – Pat O’Brien, West Texas A&M University President and President’s Council Chair

It seems borderline outrageous that student-athletes who already graduate at a higher rate than the student body are being threatened with their eligibility for what appears to be more state funding and a better ranking in U.S. News.  The fact universities have leverage over student-athletes they don’t have over any other student shouldn’t be a license to place the entire burden of a campus’ graduation rates on their shoulders.  Are benefits or privileges  being withheld from non student-athletes who don’t pass 27 hours in a year?  Are there increased investments in programs to assist student-athletes in attaining these new standards?  The answer to both questions in most cases is of course no.  The phrase for this in government is “unfunded mandate.”

The other major question I have about these proposals is the financial impact on the student-athletes.  The Division II scholarship model is not like Division I where the number of hours you enroll in is irrelevant.  Many Division II student-athletes are receiving stipends which do not even cover the cost of the 24 credit hour year that satisfies the current rule, let alone the additional hours they will now have to enroll in to satisfy the proposed standards.  Will scholarship funds be increased to cover the new requirements?  I highly doubt it.  Sure if all goes well and the student-athlete graduates in four years instead of four and a half or five they will save some money on the back-end.  But in a month-to-month financial situation many student-athletes won’t be able to afford the additional funds needed to cover the extra hours they must now take each term.

University staff members, coaches and student-athletes should read all the new academic proposals very carefully, and review them with each stakeholder group on campus before voting takes place in January.  Raising academic standards may sound like a reasonable method of improving graduation prospects for student-athletes.  However, I submit that the quickest way to push student-athletes out of school (and thereby negatively affecting the graduation rates) is to remove their ability to compete, and make it less affordable for them to attend.  These proposals have the potential to do both, if they are not complimented with new investment and support in the way of both academic and financial assistance.  And nothing so far suggests that assistance is coming.

Follow Daniel on Twitter @DanielHare.

To Sell or Not to Sell

A story caught my eye last week about Kansas State University implementing a pilot program to sell beer to its fans during the six remaining home baseball games of the season.  Several universities have experimented with the concept recently, and now there are approximately 21 Division 1 FBS schools selling beer at their home games.  I thought it would be interesting to examine what we’ve learned thus far.

The University of Minnesota sold beer for the first time in its new football stadium last year, to mixed results.  Sales totaled over $900,000, exceeding expectations and certainly demonstrating the demand is there.  Astonishingly, however, UM claims to have LOST money on the program overall.  The extra security personnel, tents and facilities, as well as equipment rental ate every bit of that $900k.  UM officials admitted to perhaps being overly cautious, but still it is hard to imagine not making money on the sale of alcohol at a sporting event.

West Virginia University’s first year of selling beer at football games profited the athletic department between $500,000 and $700,000 depending on the source.  WVU also said allowing sales in the stadium, along with prohibiting the ability to leave the stadium and return, cut down on alcohol related incidents commonly associated with binge drinking that goes on at pregame and halftime tailgate parties.

A quick glance at other schools showed Bowling Green State University profited between $20k-$25k in 2011, and Kent State University broke even.  Syracuse University didn’t provide sales or profit numbers, but did say that beer sales make up 47% of total concession revenue.

It is difficult to find a consensus regarding the financial impact of selling beer to fans.  Certainly some schools are making money while others are not.  Two major factors appear to be playing into that: 1) pricing – the universities above range from $2/beer to over $7/beer; and 2) non-product expenses – Minnesota invested in large tents with generators, as well as extra security personnel, while other schools added minimal costs.

There does, however, appear to be a consensus that alcohol related issues did not increase as a result of the new policies.  Further, several schools claimed they saw fewer incidents when selling beer in the stadium than they did before.

We’re still fairly early in this growing trend and more data needs to be collected and examined.  But if there is a way to enhance the fan experience, increase revenue, and drive down alcohol related incidents by selling beer in the athletic venues, it won’t be long until a majority of schools will be on board.

Follow Daniel on Twitter at @DanielHare

Preparing for a post-O’Bannon world

Stewart Mandel has a piece out today on describing the range of urgency athletics administrators are feeling regarding the O’Bannon v. NCAA case currently making its way through the courts.  For those of you who haven’t kept up with the case, I wrote about it in more detail here.  Essentially, former UCLA men’s basketball star Ed O’Bannon and his co-plaintiffs are suing the NCAA, and other defendants, for not sharing the revenue generated in part by student-athletes both while they are in school (e.g. TV) and afterwards (e.g. video games, archive footage).  If the O’Bannon plaintiffs were to win, or even settle the case in their favor, the current structure of college athletics will be forever altered.

Mr. Mandel profiled University of Southern California athletic director Pat Haden’s concern that the case is by no means a slam dunk for the NCAA, and how he and his colleagues should be preparing for the aftermath if it were to lose the case.  I appreciated Mr. Haden’s comments.  Up until now the little we’ve heard from administrators are the doomsday scenarios spouted off by the likes of Big Ten Commissioner Jim Delaney, who claimed his schools would rather de-emphasize sports and join Division III than go along with any type of pay for play scenario.

Mr. Haden is a lawyer.  He’s been reading the articles from legal analysts and scholars.  He knows the NCAA is vulnerable and the case is soft.  More importantly, he knows the stakes have never been higher.  It reminds me of this Family Guy/Star Wars clip, with Mr. Haden as Darth Vader and NCAA president Mark Emmert as the Empire’s henchman talking about the “invulnerable” Death Star (current NCAA structure).  Mr. Haden is right to be concerned.  He is right to be asking questions.  He is also right to be taking proactive steps to address the possible outcomes, or perhaps look at acceptable settlement options.

The contrast to Mr. Haden is University of Texas athletic director DeLoss Dodds.  He was also quoted in Mr. Mandel’s piece, but with much less concern or urgency than Mr. Haden.  Mr. Dodds seemed to think he and other athletics administrators have “more immediate things to worry about,” and “have no control over (the case).”  In my view, nothing could be further from the truth.  The case exists only because of how the NCAA and its members (of which the University of Texas and Mr. Dodds is one) have constructed the current college athletics model.  If those in power change the model, the case goes away.  And while Mr. Dodds might simply be one person in a massive bureaucracy, he leads arguably the most powerful athletic department in the country, and recently named him the 8th most powerful person in college athletics (notice Ed O’Bannon ranks #4).  My guess is others will listen when he speaks.

Last week much of the country’s attention was fixed on the Supreme Court’s hearing of two significant same-sex marriage cases.  Reading through much of the post-argument commentary from both sides, it seemed apparent that at some point in the future, though perhaps not as a direct result of these two cases, same-sex marriage will be legal across the country.  I get that same feel about the O’Bannon case and paying student-athletes.  It may not be this case or right now, but at some point in the future college athletes will be paid.  The only question is when the new era is ushered in, and how.  Pat Haden recognizes this and wants to take action; good for him.

Follow Daniel on Twitter at @DanielHare.

How to Curb Spending in College Athletics

Nearly a year ago, this article asked, how much is too much when it comes to spending on college football?  Assuming the answer is whatever they’re spending now, the next question is how to reform it.  I have a thought.  What if there was a cap on the amount of money universities could spend on college athletics?  Think about it.  University presidents and other observers are constantly decrying the “arms race” that exists today, yet nothing is done.  The reason: presidents know (or suspect) their counterparts are going to keep on spending and gaining a competitive advantage, and no president is going to risk crippling their athletic programs and alienating the alumni base.

But what if there was an NCAA rule which capped the amount of money you could spend each year?  Or perhaps a luxury tax imposed on those who spend over the cap?

A policy like this would allow presidents to put athletics spending on a more sustainable path, without the risk that competitors are going to exploit it and surge past their teams on the field.  It would help address the concerns faculty and other constituents have about spending at the expense of academics, including the public relations problem of increased athletic spending at a time of shrinking state appropriations and rising tuition for students.  Capping spending also means more schools would have the opportunity to compete for championships.  This is a big one.  Our country’s most popular sport by far, the NFL, has a hard salary cap to help provide all its teams with a realistic shot at taking home the trophy.  Even Major League Baseball, which doesn’t have a salary cap, has a luxury tax that teams must pay if they go over the spending threshold.

But why should the University of Texas be prevented from or penalized for spending as much on its athletic programs as its leadership and alumni please?  This is America after all!  Read its leaderships’ comments on this issue here.  They’re going to spend as much as they can and don’t see a problem with it.  But there is a problem.  Texas, Ohio State and others aren’t operating independently.  They are voluntary members of a conference and an association, with other institutions, upon which they depend for competition as well as the revenue they love to spend.  And the large majority of these institutions can’t and shouldn’t keep up.  Texas President William Powers said you don’t tell Albert Pujols he can’t hit in the 9th inning because it’s unfair to the other team; but that isn’t the analogy that applies here.  More on point would be the Angels can’t stack their lineup with nine Albert Pujolses without paying a hefty luxury tax.  In the NFL, you don’t get a backfield with three Adrian Petersons because you literally won’t be able to field a team and stay under the hard salary cap.  In leagues of athletic teams, rules are crafted to foster competition for the betterment of the league over and above the betterment of individual members.  A spending cap is precisely this type of rule.

An issue that would need to be resolved simultaneously with something like a spending cap or luxury tax is the Division I membership, which simply has too many schools which cannot compete at the highest levels.  I would not advocate for a system which tried to bring Texas football and Louisiana-Monroe football to a similar place in the financial “middle.”  In 2010 for example, Texas spent $25M on football; Louisiana-Monroe spent just under $3M.  They are both playing for the same championship.  That’s a joke and needs to be rectified with a split into more divisions.  But certainly you could do something with the top 50 or 60 (financial) football schools.  Michigan, Miami and Nebraska each spent $18M on football in 2010.  You think those schools are operating on the cheap?  Is there any need for those guys to spend more money?  Of course not, except for the fact Texas is outspending them by nearly 40%.

Whether it’s a hard spending cap or a luxury tax, there are controls that should and could be put into place to control spending in college athletics.  However, they will only happen if the presidents collectively decide it’s something they want to do.  Otherwise Mr. Powers and company at Texas will continue circling the Monopoly board, collecting properties, and charging obscene rent to the rest of the college athletics world.

Follow Daniel on Twitter: @DanielHare.

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.

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