By Nathan Martin
At this year’s Sports Lawyers Association (SLA) Conference, a panel of invited speakers discussed the future of the National Collegiate Athletic Association (NCAA).
Moderated by Glenn Wong, Distinguished Professor of Practice at Arizona State University’s Sandra Day O-Connor College of Law, the panel comprised Len Elmore, former NCAA basketball star and current basketball analyst for ESPN and CBS Sports; Lynn Holzman, Commissioner of the West Coast Conference; Oliver Luck, Executive Vice President of Regulatory Affairs for the NCAA; and Larry Scott, Commissioner of the Pac-12 Conference.
Professor Wong first provided introductions, a brief history of the NCAA, a summary of the current literature on and litigation landscape for the NCAA, and the recent changes to the NCAA in response to the litigation (e.g. scholarships for full cost of attendance such as travel and childcare, more autonomy to Power 5 conferences, allowing students to borrow against future earnings to pay for loss-of-value insurance, etc.). He then laid the foundation for the panel’s discussion. Focusing specifically on regulation and the NCAA’s reaction to it, he asked the panel how they view the litigation facing the NCAA.
Luck’s perspective was through that of a regulatory lens, whereby he and his staff were focusing on enforcement and planning/preparing for the mechanical implications of the new regulations instituted by the NCAA in response to the litigation. He described the example of how to enforce the cost of attendance regulation. Because of the complexity of determining cost of attendance at diverse and unique institutions across the country, an NCAA-level analysis would be overly burdensome, so alternative options must be considered.
Scott’s comments focused on the effects of autonomy granted to the Power 5 conferences like the Pac-12. He stated that this new regulation would add to the NCAA’s stability as well as significantly improve the lives and conditions for student athletes. This relieved the tension and friction that existed before between the Power 5 conferences and the other conferences, and implemented robust changes around flexibility and transparency specific to concerns like time demands on student-athletes. Furthermore, he mentioned that the increased role of student-athletes in the process was a long time coming.
Holzman’s thoughts summarized the challenges of making changes in a large, diverse, and thus complex organization like the NCAA. Because of this diversity of perspective, determining the organization’s highest priorities is difficult, and gets more so due to the exposure and debate of issues in the public forum. She also mentioned the shifting from equity-based to fairness-based competitive regulations (i.e. natural advantages exist between campuses that cannot, and should not, be regulated) will have a positive effect on the athletes’ experience.
Elmore Sees Problems with Pay for Play
Professor Wong then referenced an article written by Henry Bienen and Elmore entitled Save College Sports Before It’s Too Late, and asked Elmore what the article might look like today, approximately 18 months later. Elmore stated that it wouldn’t be much different, other than the recent regulation changes including scholarships for full cost of attendance, the ability for student-athletes to return to finish their degree, elements that better address the health, safety, and well-being of the student-athletes, and the continued focus on academics. Elmore then highlighted his article when he reiterated the problems of a potential pay-for-play outcome that the NCAA might be forced to enact. He stated that since only 25 percent of Power 5 conference institutions operated in the black, a free market recruiting system would have a negative impact on the viability college athletics. He suggested that much of the present challenges have been self-inflicted, and if stripped of further controls, it would not be progressive because the result would be chaos among ungoverned institutions. Elmore believes that governance can save the NCAA from the lack of trust between individual institutions so that it does not die a death of 1000 cuts (of litigation). In fact, he supports an NCAA anti-trust exemption so that it can more effectively govern college athletics.
Luck further elaborated on the recent regulation changes specific to the health, safety, and well-being of student athletes by listing six area of concern that the NCAA had prioritized. They were concussions, mental health, cardiac arrest, sleep and nutrition, sexual violence, and substance abuse.
Scott responded with his opinion that the NCAA is being much more progressive and proactive with student-athlete welfare, and provided examples to support this opinion such as the appointment of a Chief Medical Officer (CMO). The CMO leads the newly created Sport Science Institute, which focuses on research, education, collaboration, policy development and best practice guidelines benefit the safety, excellence and wellness of the student-athlete. He also noted the development of a Student-athlete Health Initiative that provides grants for research on student-athlete welfare concerns.
Professor Wong then posed his final question for the panel before turning it over to SLA members in the audience. He asked the panel to respond to EPSN College Basketball Analyst Jay Bilas’s late-2015 claim that college athletes should be paid because, among other things, college athletics is a multi-billion commercial enterprise.
Elmore was the first to respond, and stated that the critical difference was that of advancing the educational mission of an institution. More specifically, he posited that we ought to view the relationship between the student-athlete and the institution as benefactor-beneficiary rather than employer-employee, and as such paying student-athletes per se doesn’t make sense. He suggested that it is a values argument about the privilege of participating in college athletics.
Professor Wong interjected with an additional question that although 95 percent of student-athletes say that the arrangement is a good deal, should there something different for the other 5 percent?
Scott clarified that it’s closer to 98 percent, and that the other 2 percent have alternatives. These individuals can become an employee through other opportunities in Major League Baseball and the National Basketball Association. Although playing football in the National Football League (NFL) is different (one must wait three years before eligible based on NFL and NFL Players Association collective bargaining agreements), these outliers do have choices.
Examining the Real Beneficiary in the Athlete/Institution Relationship
The first question from the audience was posed by Robert Wallace of Thompson Coburn, LLP. He asked: Who the benefactor and beneficiary was in the current student-athlete/institution relationship? How are student-athletes who are often away from campus for a significant period of time actually getting the full education from such an experience? Shouldn’t the current time demand of 20 hours/week also include travel, compliance meetings, etc.?
Luck responded that academic advising advising/support is unprecedented, and with technology student-athletes can do homework, get tutoring, and take courses online. He suggested, though, that technology might be working too well as in some cases it’s leading to academic fraud.
Holzman added that the pendulum has swung too far in the wrong direction, as the pressures on student-athletes today are much higher (e.g. expectations for training year round). She agreed that changes have to be made and are coming regarding in-season, out-of-season, and summer time-demands; student-athletes are often overscheduling to the point of bad decisions. However, she noted that this might be an opportunity to learn about decision making for these student-athletes.
Elmore noted that the benefactor/beneficiary relationship begins with the agreement between the parties. If student-athletes maintain their side, the benefactor ought to maintain the benefits.
A second audience member, Len Simon of Robbins, Geller, Rudman & Dowd LLP and the University of San Diego School of Law, posited that many of the wounds suffered by the NCAA have been self-inflicted because the NCAA is slow to act/react. He asked: why can’t the NCAA act more quickly? Is there a change of governance structure and reactions/Public Relations planned? Is improvement coming? He concluded that “whatever the opposite of lean and mean is, that’s where you’re (the NCAA) at.”
Luck stated that the governance reform of the autonomous group of five power conferences will create a nimbler component of the organization.
Scott noted that the complex, multi-division elements of the NCAA make it a different animal than the professional ranks and it really is an unfair comparison to make regarding the agility of the organization.
Another question was posed, which sought feedback on a scenario, which could be described simply as unleashing the NCAA’s members from themselves, whereby there were no rules or governance to constrain members.
Holzman cautioned that Federal Department of Education regulations on students (including student-athletes) regarding grant-in-aid do apply, and if/when a student’s aid passes the threshold “above” assistance, a host of new issues/concerns is triggered.
Elmore prefaced that his response was an emotional one, and that such an unleashing would place the burden of failure disproportionally on student-athletes of color. He characterized these student-athletes’ perspective as most often not on education, but on money and how they often ask how “can I get mine.” He was worried that the majority of those student-athletes who think they’re prodigies, but actually are not prodigies, will suffer the consequences of failure more acutely if a system of rules and regulations like the NCAA’s and member institutions’ does not exist.
A final question was posed from the audience about the NCAA modifying existing rules to allow high school baseball players, who are drafted to the MLB but have not yet signed a professional contract, to now hire agents to negotiate contracts. She asked how the NCAA is going to reconcile this with other sport athletes, particularly in the context of the recent lawsuit filed by high-profile sports labor attorney Jeffrey Kessler.
Luck identified that the reason why rules and the approach enforcing them has softened is simply because the student-athletes need better advice. The baseball example along with the NBA rule on attending the combine and trying-out for an NBA team allow for the student-athletes to get a more realistic perspective. He added that a similar rule is possible for football and the NFL.
Scott commented that they were wrestling how to get student-athletes more educated. Since so many student-athletes have unrealistic expectations of playing professionally, education is critical before making significant, life-altering decision. He mentioned that he would love to see the baseball model applied to other sports, and that they were considering an NBA pre-draft to show basketball student-athletes their potential draft positions as an educational outcome.
Martin is the Executive Director at Aquatic Center at California State University, Northridge. He has also taught sports law at the University of Memphis.
