As The Calendar Turns To 2022, The NCAA Is On The Cusp Of Adopting A New Constitution
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New Year, New NCAA Constitution
Executive Summary
The NCAA has released its final draft of a new Constitution, developed with feedback from members during a months-long process. The entire membership will vote on the Constitution on January 20 at the NCAA Convention.
A key component of the new Constitution includes increased autonomy for each division.
Language in the Constitution reaffirms the NCAA's position that participation in sport is a voluntary pursuit, not a mandate.
NIL rights are written into the Constitution in several ways, including a statement that Conferences must provide student-athletes with policies for licensing, marketing, sponsorship and advertising.
Still to come are conversations about the definition of "compensation" under Bylaw 12 amateurism rules.
The Constitution reduces the size of the NCAA Board of Governors from 25 members (21 with voting rights) down to nine members with voting rights.
Student-athletes will have approximately 11% of the voting power within the NCAA Board of Governors, per this draft.
As the calendar turns to 2022, the NCAA is on the cusp of adopting a new Constitution. Last month, the NCAA Constitution Committee released its final draft of the new Constitution for the NCAA membership and world to see.
Per the NCAA’s December 16, 2021, press release, the foundational document was developed in coordination with feedback from NCAA members during several steps since the summer, including at November's Special Convention and through surveys and meetings over the past several months.
The entire membership will vote on the constitution later this month (January 20) at the 2022 NCAA Convention. The formal legislative proposal will be shared with members January 7.
In a memo to NCAA member schools and conferences, Board of Governors chair and Georgetown University President Jack DeGioia wrote, "This process has been an example of how we can work together to modernize college sports and meet the needs of students engaged in intercollegiate athletics — today and for the future. The ratification of a new constitution in January will unlock the ability for the divisions to rewrite rules for each division by August that will enable us to realize the goal of transforming NCAA governance to better serve our students."
In the first of a two-part series, AV reviews the final draft the new NCAA Constitution and highlight a few takeaways and pose key questions the NCAA membership may be considering as it walks up to enacting its new Constitution.
Preamble & Principles
Although the draft reflects many new points of emphasis, one foundational piece opens in the preamble, reaffirming that the NCAA is a “voluntary, self-governing organization of four-year colleges, universities and conferences…” With the recent spree of congressional hearings, class-action lawsuits, and state-level interventions affecting college athletics in the United States, this opening clause (albeit a continuation of NCAA’s “voluntary” existence) stands out.
The draft lays out several principles which overlap many of the existing codified NCAA principles. With that said, the proposed principle “The Primacy of the Academic Experience” includes the premise that “student-athletes... choose voluntarily to participate in NCAA sports.” In the age of student-athletes’ rights, increased protections around health, safety, and scholarships, and a push by some to classify student-athletes as “employees” legally-speaking, this language presents a reaffirmation of the NCAA’s position that college athletics participation is a voluntary pursuit, not a mandate.
Name Image Likeness Emerges
The draft Constitution certainly reflects the recent sea-change regarding a student-athlete’s ability to commercialize and profit from their NIL. At various points in the draft, NIL is referenced including under obligations for Institutions and Conferences. For the Conferences section in the draft Constitution, it states that conferences “must provide to student-athletes any conference policies for its licensing, marketing, sponsorship, advertising, and other commercial agreements that may involve use of a student-athlete’s name, image or likeness.”
As NIL pertains to member institutions within the Constitution, the draft states that institutions “… shall maintain written policies for its licensing, marketing, sponsorship, advertising and other commercial agreements that may involve the use of a student-athlete’s name, image or likeness. Each institution shall provide such policies to student-athletes and make those policies publicly available.”
Although not expressly stated in the section applicable to member institutions, the currently existing requirement that NCAA member schools submit “the NCAA financial data as determined by the division detailing operating revenues, expenses and capital relating to the intercollegiate athletics program” makes no reference, yet, to revenues and expenditures tied to NIL. NCAA member schools are ramping up their NIL operations internally while also partnering with a garden-variety of NIL service providers externally. Further, as NCAA member schools evolve their licensing practices to permit student-athletes to use the university marks and logos for permissible NIL activities, the university may accrue additional revenue. How do these NIL related expenditures and revenues get captured in annual NCAA financial reporting?
Back in the Principles section of the draft Constitution, “The Collegiate Student-Athlete Model” principle states, in part, that “...student-athletes may not be compensated by a member institution for participating in a sport, but may receive educational and other benefits in accordance with guidelines established by their NCAA division.”
How the NCAA evolves and refines its definition of “compensation” under Bylaw 12 amateurism rules and “recruiting inducement” under Bylaw 13 recruiting rules will be a critical policy development in light of recent references to significant compensation being provided to student-athletes to induce transferring and for “their hard work” under the guise of authentic NIL activities.
Re-Organizing the Association, the Board, and the Divisions
Under Article 2 of the draft NCAA Constitution, a slew of changes to the composition and responsibilities of the Association, the NCAA Board of Governors, and even the duties of the NCAA President are enumerated.
In terms of the NCAA Board of Governors-- functionally the highest-ranking body within the entire NCAA governance structure-- its composition would be significantly reduced from 25 members, 21 of which had voting rights, down to 9 members with voting rights. This reduction in the Board’s size reflects the membership’s appetite for increased nimbleness at the top and, in turn, an attempt to reduce bureaucracy.
Interestingly, of the nine individuals designated for the Board under the draft Constitution, one student-athlete will be given full voting rights and two other student-athletes will serve as non-voting ex officio members. These student-athletes must have graduated and be nominated by a divisional Student-Athlete Advisory Committee.
By comparison, no student-athlete has voting rights under the current iteration of the Board of Governors. Mathematically speaking, student-athletes would now have approximately 11% of the voting power within the NCAA’s highest-ranking body per this draft.
Among the other proposed non-voting ex officio members to be added to the Board of Governors, a president from one Historically Black College and University (HBCU) is designated per the draft Constitution.
Term lengths for the Board, per the draft, have been consolidated and slightly adjusted from the current range of three to four years, depending on whether you were an independent Board member or an FBS or FCS designated Board member, down to two-year terms with opportunity for a renewable two years.
The Board’s scope of responsibilities remains fairly aligned with its existing codified responsibilities in terms of Association budget oversight, employment of NCAA President, and developing legal and policy strategy and related risk management. Two acute areas of responsibility currently codified for the Board’s oversight -- reviewing and coordinating the catastrophic-injury and professional career insurance (disabling injury/ illness) programs and compiling the names of those individuals associated with intercollegiate athletics who died during the year immediately preceding the annual Convention -- would be removed from the Board’s direct role and oversight per the draft.
The Divisions section in the draft Constitution reflects one of the most important overarching themes coming out of this draft – granting more autonomy and responsibility to each NCAA division to manage its affairs.
The opening line of this section in the draft states: “Each division shall have independent authority to organize itself, consistent with principles of the Association.” This means Division I, for example, could decide independently from the other divisions to create a fourth NCAA division provided the new division is “… self-funded by the originating division.” This provides a clearer runway for rumors (like the Power-5 schools breaking away) to become a reality one day.
The increased autonomy granted to the divisions could invite a needed-revamping of the criteria for being a member conference in light of the recent flood of Division I schools changing conference affiliations. This instability in terms of conference affiliations may also portend impacts on the automatic-qualifications standards (for accessing NCAA tournaments) granted to existing conferences as conference compositions will look different in the coming years.
Divisions will also be positioned to have more direct influence on the structure and policies for enforcement protocols and infractions proceedings. Specifically, the draft Constitution specifies that “each division shall establish policies and procedures for enforcement of Association and division rules and regulations…” This portends more direct management by Division I members including conference commissioners in the future enforcement implementations.
That concludes part one of our review of the draft NCAA Constitution. Next week, we will highlight how the draft NCAA Constitution captures a more precise outline of the NCAA President's role, clarifies the FAR's role as a student-athlete advocate, re-affirms the percentage-allocations from the NCAA operating revenue sources granted to Divisions II and III, and how the Constitution weighs in on student-athlete health safety.
Athletics Veritas is presented for information purposes only and should not be considered advice or counsel on NCAA compliance matters. For guidance on NCAA rules and processes, always consult your university’s athletics compliance office, conference office, and/or the NCAA.
