A frequent critic of those in charge of collegiate athletics, Richard Karcher is no shrinking violet when it comes to offering his opinion.
That, and his insightful analysis, are the main reasons we reached out to the Eastern Michigan University sports law professor, attorney and FAR (at EMU), for the following interview.
Question: Tell us about your history as an athlete?
Answer: I played football, basketball and baseball in high school and then continued on playing baseball. Freshman year I was redshirted at Indiana University, transferred to a JUCO, and then played in the Atlanta Braves system for three seasons. Then I decided to hang up the cleats at the end of spring training when I was told that they were sending me back to A ball, which was the Durham Bulls back then. So, I came back home to Michigan and quickly got my bachelor’s and law degrees.
Q: What led to your start in higher ed?
A: As a law student, I actually began to enjoy scholarly research and writing and participated on law review as a managing editor. When I was a corporate/transactional lawyer at Honigman in Detroit, I started representing athletes and also co-taught a sports law course as an adjunct at Michigan State. The exceptional lawyers at Honigman trained me to be an excellent writer and I liked the teaching experience so much that I decided to pursue it as a career after I made partner. We packed up the family and moved to Jacksonville, Florida so I could teach torts and corporate taxation as a visiting law professor at Florida Coastal. That’s where I met two fabulous sports law colleagues, Peter Goplerud and Nancy Hogshead. I was then offered a full professor position there and regularly taught sports law courses as well as torts and business organizations. A sports law curriculum was obviously a natural fit for us, so we developed a sports law center, and I took over as director of the program. But my family needed to get back to Michigan so, in 2014, I accepted a tenure-track position at EMU where I would be able to teach a variety of graduate and undergraduate sport management courses: sport governance and regulation, sport ethics, NCAA compliance, sport management research, and international sport.
Q: Has there always been an interest in NCAA governance, or is that a more recent phenomenon?
A: I once represented a D-I college football player who was listed on the school’s roster and in the school’s football media publications as having junior eligibility for the entire football season and then the following spring he was informed by his coach that he actually had senior eligibility and was all done playing college football. So, his school thought he had another year of eligibility, but he actually didn’t, and he was a really good player and an NFL prospect. We sued the school and settled but the question is, how is this possible? When I entered academia my first law journal article highlighted all of the problems associated with the NCAA’s “no agent” rule in baseball, including its arbitrary enforcement within an industry where every high school and college MLB draft prospect has an agent cloaked as an “advisor” in order to appease the NCAA.
A couple years later I get a call from a lawyer who was representing a top MLB draft prospect suspended by his university because NCAA enforcement staff was informed by someone that he had an agent back when he was drafted out of high school (the “someone” was actually that former agent). That lawsuit, known to all sports lawyers as the Andy Oliver case, ended with a substantial monetary settlement with the NCAA being able to keep its “no agent” rule. Now, that case got a lot of attention and what happens with lawsuits against the NCAA is the public discourse primarily revolves around the unfairness or unreasonableness of the amateur or eligibility rules and how the rules should be changed, eliminated, struck down, etc., but at its core any lawsuit is really about NCAA governance principles.
Using the Oliver case as an example, the only reason there was even a lawsuit to begin with is that the university has an obligation under NCAA bylaws to investigate, report violations, and withhold an ineligible athlete from competition, and then it can seek reinstatement of his eligibility. In individual athlete lawsuits this “obligation of institutional control” under NCAA bylaws pits the university and the NCAA against each other because, at the preliminary injunction hearing, the judge is listening to the hometown university’s lawyer saying the school is obligated to sit the player and to the NCAA’s lawyer saying the member universities create the rules including that obligation. That’s all about governance, not the underlying eligibility rule, so if the judge thinks the athlete’s challenge to the eligibility rule is likely to succeed and grants the preliminary injunction, that order doesn’t make the school put the athlete back on the field/court and it also doesn’t strike down or invalidate either the eligibility rule or the university’s institutional control obligation.
In other words, the order essentially gives the university a choice to make – it can allow the athlete to play, or it can comply with its institutional control obligation. Schools used to make the latter choice and continue to sit the athlete, but today schools are allowing the athlete to play. However, nobody thinks about or discusses any judge’s order in this manner, not even most people who work in NCAA compliance. I guess all of that was a long-winded answer to your original question that my interest in NCAA governance is not a recent phenomenon.
Q: You have been critical of the NCAA in the past? Has the performance of the association gotten better or worse through the years?
A: I don’t view it as either better or worse. What we’re witnessing today is an evolving membership apathy with NCAA governance and, in particular, D-I governance principles. In my view, it really took a turn starting five years ago in the fall of 2020 when the membership was considering changes to the “no endorsement” rule in the manner the legislative process as set forth in the D-I Manual contemplates and requires. In other words, the way revisions to NCAA eligibility rules had always been made. A 20-plus page document was circulated to the D-I membership showing all the proposed changes and additions to the “no endorsement” rule, including the rationale for the suggested revisions, and the D-I membership would then vote on that proposal at the NCAA Convention (along with any other proposals for changes to other bylaws). And then right before the Convention, the NCAA president suddenly announces that the membership would not be voting on that proposal due to “uncertainty” surrounding the pending Alston case, which is not only irrelevant to the legislative process, but the case also wasn’t even challenging the “no endorsement” rule. So, you had a situation here where the NCAA president actually had no legal authority to withdraw the proposal from a membership vote and the D-I membership taking the view, who cares? And then six months later, right after the Supreme Court ruling, the D-I Board announced revisions to the no endorsement rule and, again, the D-I membership takes the view, who cares?
That’s where we are today with NCAA governance. Some person, committee, or board wants to do something and very few people question their authority to do it. And if you think about it, the governance process right now doesn’t even make logical sense. The enforcement of the House Settlement requires all D-I members to agree to the enforcement rules by signing a contract, but the House Settlement itself didn’t require that agreement or even a member vote. Who decided the enforcement process now requires some signed contract and where does that authority exist? And a so called “rescission” of changes made to sports betting rules requires a member vote, but the changes themselves didn’t require a member vote? This ending of membership creation of the rules has given new impetus for schools to question, and even not comply with, their institutional control obligation.
Q: What do you like most about being the FAR?
A: I have a great relationship with our president and he’s retiring at the end of this academic year. I like that he has an “open door policy” with me. And the same goes for our AD. They both always respond to my inquiries within minutes, and I think that’s vital to the FAR role. I always thought the role would be a natural fit with my background and experience as well as my involvement as a sport management professor working with student-athletes and grad assistants working in athletics at EMU. I enjoy working with the other FARs in the MAC and developing policy at the conference level. We meet as a group in Cleveland once each semester and they’ll listen to my diatribes about the problems with NCAA governance.
Q: What is the nature of your relationship with compliance professionals at the school?
A: Our compliance director is a lawyer and so we’re able to talk about “sports law” stuff. As the FAR, I have to review and sign all of our waiver requests and any self-reporting of violations. Given that I have a sufficient understanding of NCAA rules and our compliance director is on top of everything, I don’t have questions or concerns very often but he’s very responsive whenever I do. I have gotten involved in a couple of matters since I became FAR four years ago.
Q: What advice would you give compliance professionals in these difficult times?
A: I don’t know, they’re hired to make sure their coaches, student-athletes, and athletic department staff follow the rules. Their job isn’t to be complaining and making waves about NCAA governance. Having said that, I do think they need to be somewhat concerned about the larger question of “institutional control” and to what extent that obligation actually has any teeth. I mean, there are schools right now that are cooperating with, and even helping to fund, their own student-athletes’ lawsuits against the NCAA.
Ironically, if you’re working in compliance today you can’t help but to be asking yourself, why should I report this to the NCAA and what do I gain by doing that? And what happens right now if I don’t? Now, these are natural questions for them to be asking given the “higher ups” who are showing they are less concerned with the institutional control obligation.
