Where the Constitution Committee Could Focus in Reassessing Values & Principles Around College Athletics and Proposing a New Governance Model
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The NCAA Makeover: Increasing Transparency and Accountability at the Top of NCAA Pyramid and Pursuing Intentional Collaboration with Government Agencies
Executive Summary
AV continues its multi-part series identifying key issues and potential solutions for reimagining the future of college sports and how its governed.
The NCAA announced a 28-member Constitution Committee comprised of current and former university presidents, Commissioners, Athletic Directors, Faculty Athletic Representatives and Student-Athletes from all three divisions to steward change
AV explores this week how the roles and performance of the NCAA President and NCAA Board of Governors need increased transparency, checks and balances, and accountability
AV offers specific measures for improving the independent voice within the Board of Governors as well as improving accountability and transparency around the NCAA president position including exploring term limits and 360-degree feedback for the NCAA president.
AV looks into the benefits of exploring the NCAA’s cross-governance collaboration and alignment with the U.S. Department of Education & other federal, state, and local agencies.
Increased collaboration and coordination could improve management and adjudication of matters tied to assaults and abuse on campus; reconciling the tensions between Title IX and sport sponsorship decisions; and navigating international student-athlete visa issues, among others.
In Part I of the NCAA Makeover, we discussed how the NCAA’s amateurism rule needed a simpler brush for painting a “clear line of demarcation.” We also explored why front-line administrators at campus, conference, and NCAA national office levels would be impactful additions to the newly formed NCAA Constitution Committee. These administrators could serve as subject matter experts and help reverse engineer problems produced by the current NCAA governance structure.
In Part II of the NCAA Makeover series, we outline how the roles and performance of the NCAA president and NCAA Board of Governors need more independent quality control as well as checks and balances. We also highlight the need for a future version of the NCAA to more intently and formally collaborate with key departments and agencies at the federal, state, and local levels.
The Roles and Performance of the NCAA President and NCAA Board of Governors Need Increased Transparency, Checks and Balances, and Accountability
One of the enumerated responsibilities of the NCAA Board of Governors, according to NCAA Constitution 4.1.2, is for the Board to “serve as the final authority for the selection of and additional duties assigned to independent members of the Board of Governors.” In one respect, this shows a legislated attempt to infuse independence in to the Board’s dialogue and governance. In fairness, there is an open call for nominees for these independent slots on the Board, a closer look shows that this provision grants the Board, the top authority within the NCAA governance structure, the power to decide who its own independent members will actually be serving on the Board.
This policy presents a conflict of interest and may invite cronyism at the presidential level. The attempt toward incorporating an independent voice at the college athletics’ head table is commendable, but the actual embedded conflict of interest is emblematic of the need for truly independent governance around the NCAA governance structure.
Whether adding a truly independent, congressionally-appointed oversight committee to serve as in an ombudsman-like role over the Board or, alternatively, granting Congress or federal agencies like the Department of Education the right to appoint individuals as the independent members of the Board or even securing a seat at the table for college athletics advisory groups and think tanks, enhancing the genuine independence and checks and balances around the Board’s composition could be a productive pivot.
Another of the NCAA Board of Governors' roles, as written into the NCAA constitution, is to "employ the NCAA President, who shall be administratively responsible to the Board of Governors and who shall be authorized to employ such other persons as may be necessary to conduct efficiently the business of the Association.”
In an effort to enhance the NCAA membership and general public’s understanding of the NCAA President’s responsibilities and performance, the Board could publish its position description for the NCAA president and the priorities for the coming year in a way that articulates more tangible expectations and not just qualitative principles and philosophies. Further, the NCAA President’s annual performance review should include a 360-degree feedback mechanism to allow national office, conference, and campus level stakeholders the opportunity to provide feedback about the President directly to the Board in a transparent and constructive way. For example, a CEO of a nonprofit described the value of a 360-degree feedback process this way: “Knowing that the feedback reflected the voices of junior and senior staff, non-board and board members, and external stakeholders made a lasting impression on me. Thanks to the 360 process, I was provided with a refreshing opportunity to step back and look at my overall performance in a new light.”
The role of NCAA president is a demanding and visible role. The NCAA president’s position is more than just simply being accountable to a presidentially-led Board. The NCAA President is the lead administrator for the most powerful, broad-based college athletics enterprise in the United States. Beyond the vested interests of current student-athletes, coaches, faculty and athletics staff at NCAA member institutions, the NCAA President, as the voice for college athletics in higher education, can also impact high school students and their families, former student-athletes, teachers, coaches, and other stakeholders in sport and education at all levels. Performance assessment and correlated decisions on extending an NCAA President’s employment should come with increased transparency and opportunity for input from all levels.
Another theme around the NCAA president position worth exploring is term limits. Members of the NCAA Board of Governors, the Division I Board of Directors and the Division I Council have term limits – in most cases four-year terms. The NCAA president has no term limits. Without term limits, cronyism and a void of accountability to the broader membership could pervade. Term-limits for an NCAA president should be considered.
At the Board of Governors level, another small step toward enhancing transparency and communication from the Board would be to have the Board Chair or other members of the Board available to the media after each Board meeting to speak to the issues before the Board. The resulting media engagement recording should then be made available to the NCAA membership.
These recommended steps to improve transparency and accountability at the top would help address concerns raised by many college athletics stakeholders in recent months. According to multiple media reports, the consensus around the country is that the NCAA Board of Governors has demonstrated a disconnect to what’s happening in college sports on their campuses and misstepped in their oversight of the current NCAA president.
As the New York Times reported, President Mark Emmert’s contract extension was “mind boggling,” according to a commissioner of a Division I conference, who spoke on the condition of anonymity to avoid rupturing the conference’s relationship with the NCAA and concluded “presidents seem hopelessly out of touch."
“Definitely a little shocked on the timing because of some of the recent issues, but nothing surprises me anymore out of Indianapolis,” wrote an anonymous Power 5 athletic director, who also added the shrugging man emoji as emphasis.
If more transparency and accountability at the executive level of the NCAA governance structure were infused, trust and connectivity with the membership could improve.
The NCAA needs to establish and formalize cross-governance collaboration and alignment with the U.S. Department of Education & Other Federal, State, and Local Agencies.
Around many corners of NCAA-related policy and transactional decision-making are concurrent impacts tied to federal laws such as Title IX, student visas and immigration, federal student aid including Pell Grants, and similar policies under the jurisdiction of the federal government.
At the most visible level, the NCAA has found itself in no-man’s land when it comes to determining whether it is the right entity to adjudicate serious allegations of assault, pedophilia, and other abuse. The NCAA has also found itself muted when it comes to defining its role, if any, in addressing lapses in the reporting of such misconduct and bungled investigations at the campus level around criminal assault matters that have some nexus to college sports. The Baylor University infractions case is the latest example. Other examples include the slate of Big Ten Schools that have had varying incidents of abuse arising from their athletic programs spanning decades.
The NCAA Board of Governors, with very valid intentions, adopted the NCAA’s Policy on Campus Sexual Violence in August 2017. Beginning in the 2017-18 academic year, NCAA schools have attested their compliance with the NCAA policy. Per the NCAA’s website, the annual attestation period runs from March 1 to May 15. If a school is not able to attest their compliance with the NCAA policy, it will be prohibited from hosting any NCAA championship competitions for the next applicable academic year.
In establishing this policy, though, is the NCAA then projecting that it would hold schools accountable, through its infractions process, for failing to follow through on the campus level policies that the NCAA Board mandated schools submit to the NCAA? Or is that a district attorney's call? Or if so pervasive, is this a matter for the Office of the Attorney General?
This is where a tangled web of campus and national policies, misdirected optics, and highly visible inaction through the infractions process begins to create problems for the NCAA.
Put simply, a critical object of this NCAA Makeover revolves around developing more clearly-defined roles for the NCAA and local, state and federal agencies pertaining to adjudicating criminal matters involving serious misconduct emanating from college athletics. Mapping out a more deliberate, visible plan and agency coordination to adjudicate these matters tied to both athletics and higher education in general would be a major success for the Constitution Committee and NCAA membership.
The number of policy issues that do not live in an NCAA vacuum are numerous and usually complex. It is not only the NCAA’s responsibility to clarify its role with such matters that impact the well-being and safety of student-athletes and others, it is also on federal and state agencies, criminal courts, and regional accrediting bodies to step forward in the name of responsiveness, accountability, and enforcement.
Another example where the NCAA’s role and federal agencies could benefit from more coordinated management and monitoring would be regarding institutional decisions to drop sports that have clear Title IX implications. Title IX compliance, and more broadly gender equity, is certainly a deeply-held value of the NCAA; however, the application and enforcement of that federal law is the responsibility of the Office of Civil Rights (OCR). Yet OCR isn’t exclusively addressing college athletics issues, either. Having someone from the relevant federal agency (like OCR) at the proverbial NCAA governance table to assist in policy development, enforcement and accountability for situations that implicate both NCAA policy and federal law would be worth exploring. Perhaps adding individuals from OCR as ex officio members of the NCAA Division I Olympic Sports Liaison Committee is a reasonable value-add.
The advent of NIL also presents a need for NCAA and federal agency collaboration. Increased dialogue between the NCAA and U.S. Department of Homeland Security (DHS) could help in navigating whether an international student-athlete can pursue NIL activities without jeopardizing their student-visa – an issue under the jurisdiction of DHS. Student-athletes earning NIL income are also being reminded of their obligation to pay taxes on this income. This presents an opportunity for the U.S. Department of Treasury to collaborate with the NCAA in developing student-athlete centered and accessible educational materials and on-line modules about taxes, relevant tax forms, and the like.
As has been chronicled, the NCAA backed off its amateurism rules to greenlight NIL opportunities for college athletes, yet a key segment of the student-athlete population has been left in the lurch between the patchwork of state laws, the lifting of certain amateurism rules, and a federal agency not prepared to provide guidance to international student-athletes on whether NIL-generated income jeopardizes their student visa status.
The relevant federal agencies could have ex officio members serve within a future NCAA governance structure to enhance and inform NCAA policy-making. Alternatively, an inter-organizational entity comprised of federal agency and college athletics representatives could be established to address these crossover issues and be more responsive to issues including matters affecting student-athlete well-being– further collaboration and cohesion between federal agencies and the NCAA is overdue.
In next week’s AV, Part III of the NCAA Makeover will explore different concepts that could help spark improved faith, timeliness, and accountability from the much-maligned NCAA infractions process.
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.
