By Ellen J. Staurowsky, Ed.D., Senior Writer and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College, staurows@ithaca.edu
On Monday, November 15, 2021, the National Collegiate Athletic Association (NCAA) hosted a special convention to discuss proposed changes to the first six articles in the NCAA’s manual that constitute its constitution. Following the U.S. Supreme Court’s resounding rejection of the NCAA’s principle of amateurism as a defense for business practices that would not be tolerated in any other industry in the United States in NCAA v. Alston and the enactment of state laws opening up avenues for college athletes to be able to profit from their names, images, and likenesses in the summer of 2021, the NCAA Board of Governors (BOG) announced that the time had come for a major restructuring of the organization. As former U.S. Secretary of Defense Robert Gates, an independent member of the BOG noted, “”Until we can better align the mission of the Association with its authority, the NCAA will not be able to play the role it should play in governing college sports. We cannot go on as we are” (Durham, 2021).
The NCAA’s Process Pre-Special Convention
The NCAA’s process for preparing the membership to have a discussion about a change in its governance structure began with the appointment of a 28-member Constitution Committee.[1] Proceeding on a tight timeline, the committee distributed two surveys to stakeholders ( one to college presidents, conference commissioners, athletic director, coach association executives, faculty athletics representatives, athletics health care administrators and a second to athlete leaders) to be completed during a 10-day span between August 23 and September 1, 2021. As per the Executive Summary of Findings issued by the Committee, the surveys were designed to gauge sentiment among stakeholders regarding what were referred to as “constitutional” elements that should be carried forward into the future and ideas for modernization and improvement. The Committee was charged with focusing on Articles 1-6 of the NCAA’s Constitution with an expectation that the remainder of the work on reshaping the rest of the operating bylaws (Articles 10-21) and administrative bylaws (Article 31) would be addressed by the membership, although the process for doing so was unspecified.
Based on the results, the NCAA reported that a substantial majority (over three-quarters) of respondents across the membership expressed strong or very strong agreement that six principles were “central to the future of the NCAA” including:
- Conducting national championships;
- Primacy of the academic experience in policy- and decision-making;
- Sport-specific rules for competition and participation;
- Standards for allocating national revenue;
- Standards for college athlete eligibility.; and,
- Standards for college athlete health and safety (NCAA Research Staff, 2021).
Further, results from the surveys as reported indicated that college sport leaders across all sectors (divisional affiliations) and roles (executives through athlete leaders) supported at least minimum standard requirements at the national level for health and safety, inclusion and equity, and sport-specific playing rules. The juxtaposition of those sentiments in light of the Association’s position that it does not have a legal duty to protect the safety of college athletes (Sheeley v. NCAA, 2013) nor has a legal duty to ensure the integrity of the education provided to athletes seems to leave the door open for continuing questions about what the NCAA actually does. This perception is likely not to go away given the statement on page 5 of the draft Constitution distributed to the membership by Constitution Committee chair, Robert M. Gates, on November 5, 2021. As delineated under proposed Article 2A.2.g, Organization, The Association shall
defer to other regulating bodies the investigation of and sanctions against school and school representatives’ conduct that violates other regulating body or legal standards (e.g., Title IX violations that may also violate NCAA gender equity principles or academic accreditation standards that may violate NCAA academic principles). After final determination by a regulating body or court of school and school representative misconduct, the NCAA Board of Governors or division Board of Directors or Presidents Council may issue a public censure or take disciplinary action.
The NCAA Special Convention
The NCAA Special Convention started with constituents associated with each division meeting separately to review each of the six articles before moving into an Association-wide meeting. In his welcome to the meeting, University of Georgia President Jere Morehead, who is also president of the Southeast Conference and member of the BOG, noted that “The Board of Governors made the decision this past summer to call for a new constitution. It has become increasingly clear that our current framework is not sufficient in addressing the challenges now facing the association” (NCAA Special Convention, transcript, 12:16:11). After introductory remarks from members of the Board of Governors and athlete representatives, attendees were given the opportunity to raise questions or concerns about each of the six articles. Those designated as having voting privileges were then given an opportunity to participate in a straw poll to indicate their level of support for each of the articles. In Division I, the voting was as follows (see Table 1.). The number voting fell short of the total number of members in NCAA Division I (n=358), representing approximately 60% (the number of votes varied by article). While support overall seemed strong, the pattern of votes suggests that there were still issues to be resolved with each of the articles as proposed.
| Strongly Support As Written | Somewhat Support | Do Not Support | Number Voting | |
| Article 1. Principles | 42.13% | 56.35% | 1.5% | 197 |
| Article 2. Organization- Composition, Selection, & Role of the BOG | 11.48% | 77.00% | 11.48% | 209 |
| Article 2. Organizational Structure of the Association | 19.52% | 73.81% | 6.67% | 210 |
| Article 3. Finance | 34.27% | 55.87% | 9.86% | 213 |
| Article 4. Compliance & Article 6. Institutional Control | 22.67% | 71.04% | 6.00% | 221 |
| Article 5. Amendments to the Constitution | 38.91% | 59.78% | 1.36% |
Concluding Thoughts
While the escalating legal challenges the NCAA has experienced over the past 15 years argues for the Association to change the way that it does business, the process as it has so far been unfolding seems to reflect more of a business as usual approach rather than a mindset reflective of the transformation that the NCAA has been messaging. Some journalists have noted the membership of the NCAA Constitution Committee itself was comprised of NCAA insiders for the most part, raising a question as to how transformational the process was designed to be (Brown, 2021; Christovich, 2021). Katie Lever (2021b), writing for LRT-Sports, also questioned the objectivity of the committee, noting that there were no current Division I athletes represented and that the athlete designee for Division I was Kendall Spencer, someone whose service as the head of the national athlete advisory committee ended in 2013.
Further, the ideas that have been identified in crafting a future for college sport appear more reactive to the moment rather than strategic in vision. As a case in point, the fact that there was still support within the membership by administrators for “maintaining a model that focuses on amateurism” seems to suggest that the leadership has not yet come to terms with the implications of the U.S. Supreme Court’s ruling in NCAA v. Alston (2021). Justice Kavanaugh’s opinion could not have been clearer that the NCAA’s use of amateurism to justify its business practices is deeply problematic. He wrote, “Specifically, the NCAA says that colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid. In my view, that argument is circular and unpersuasive. The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America” (Kavanaugh, 2021, p. 3).
The NCAA’s “modernizing” efforts were punctuated with an old vocabulary, namely prohibitions against paying athletes and the continued use of the term “student-athlete”. In the 18 ½ page draft of the “new” constitution, the term appears 44 times. In the 150 minutes that transpired during the NCAA Division I meeting at the Special Convention, the term was used 96 times. The NCAA appeared to be a doubling down on the term following a memo issued in September of 2021 by Jennifer Abruzzo, General Counsel, National Labor Relations Board, cautioning that private institutions that used the term to misclassify college athletes could have a chilling effect on college athletes exercising their rights as employees. When asked at a post-convention press conference about the repeated use of the term, NCAA President Mark Emmert seemed to suggest that there was nothing to be done, that it was the athletes themselves who insisted on the language. Notably, the athletes selected to serve on the NCAA’s Constitution Committee are athletes who have never sued the Association. The athlete voice might sound very different if athletes who felt compelled to sue the NCAA or protest against it like Sedona Prince, Shawne Alston, Jeremy Bloom, Ed O’Bannon, or myriad others (Kain Colter, for example) were on the NCAA Constitution Committee.
There is also the very real question of whether the membership at large fully understands or has time to consider the changes that are being proposed. While the NCAA reported that the Special Convention drew 2500 attendees to the virtual event, the number voting in the straw polls was considerably less.
Further, Lever (2021a) raised some methodological issues associated with the Committee’s data gathering process, noting that the timing of the survey at the start of an academic year likely affected response rates as well as the time and attention stakeholders could devote to completing it. The shift in language within the survey is also noticeable, where the term “primacy” as a value is placed before the principle regarding academic experience while none of the other principles respondents were asked to consider had a similar descriptor included in the principle being evaluated.
The next steps following the Convention include the distribution of a survey between November 16-20 to all identified voting delegates to provide feedback; results from that survey are expected to be reviewed by the Committee between November 21-December 5 and based on those results modifications may be made to the draft constitution; and a series of meetings with various constituents is expected to be done between December 6-11. The submission of a final draft of the “new” constitution to the NCAA Board of Governors is expected by December 15, 2021 and an expected vote on the document at the January 2022 NCAA Convention.
References
Brown, M. (2021, August). Come help us hold our own NCAA Constitutional Convention. Extrapointsmb.com. Retrieved from https://www.extrapointsmb.com/ncaa-reform-college-sports-constitution-survey/
Christovich, A. (2021, October 15). Constitutional Convention timeline. Front Office Sports. Retrieved from https://frontofficesports.com/constitutional-conventions-timeline/
Durham, M. (2021, July 20). NCAA Board of Governors to convene constitutional convention. NCAA.org. Retrieved from https://www.ncaa.org/about/resources/media-center/news/general-ncaa-board-of-governors-to-convene-constitutional-convention
Gates, R. M. (2021, November 5). Memorandum to NCAA membership regarding draft of the new NCAA Constitution. NCAA.org. Retrieved from https://ncaaorg.s3.amazonaws.com/governance/ncaa/constitution/NCAAGov_DraftConstitution.pdf
Kavanaugh, B. (2021, June 21). National Collegiate Athletic Association v. Alston, concurring opinion. Washington, DC: United States Supreme Court. Retrieved from https://www.supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf
Lever, K. (2021, October 26). Constitutional Convention Central: What Changes Do Stakeholders Want to See in College Sports? Lrt-sports.com. https://www.lrt-sports.com/blog/constitutional-convention-central-what-changes-do-stakeholders-want-to-see-in-college-sports/
NCAA Research Staff. (2021). NCAA Constitution Committee Survey: Comprehensive findings – September 2021. NCAA.org. Retrieved from https://ncaaorg.s3.amazonaws.com/committees/ncaa/const/Sep2021ConCom_ComprehensiveSurveyFindings.pdf
NCAA Staff. (2021). Constitution committee charter. NCAA.org. Retrieved from https://www.ncaa.org/constitution-review-committee-charter
Osburn, S. (2021, August 10). Board announces Constitution Committee members. NCAA.org. Retrieved from https://www.ncaa.org/about/resources/media-center/news/general-board-announces-constitution-committee-members
[1] In the NCAA Conference Committee Charge, the committee was to have been comprised of 28 members (NCAA Staff, 2021). In July of 2021, the number of members on the committee was to have been 22 (Durham, 2021). In the announcement of the committee roster on August 10, 2021, the committee had 23 members (Osburn, 2021).
