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 draft Constitution attempts to clarify the job of the NCAA President, enumerating five specific roles the President would play on a daily basis and in times of tumult or challenge for the organization and its members.
The Board of Governors will be required to conduct an annual evaluation of the president in consultation with the governing bodies of all three divisions.
Additional clarity could be needed around issues such as media contracts -- most urgently related to March Madness.
Further, clarity is needed regarding the use of "Association" versus "NCAA National Office," as the current usage muddies the distinction between what the National Office exists to manage and what member schools are responsible for.
The draft Constitution leaves unchanged the financial allocation from the overall operating revenue sources to Division II and Division III -- 4.37% and 3.18%, respectively.
A potential area for review is the current codified membership dues, levels which have not changed in several years.
The draft Constitution codifies the intention to protect innocent and uninvolved student-athletes and coaches within the Level I and II infractions' penalty process.
Ultimately, the draft Constitution attempts to create a leaner, more fuel-efficient governance structure and provide maximum autonomy to each division.
In this week's AV, we continue our look-in at the draft NCAA Constitution including student-athlete health and safety, the role of the NCAA president, Divisions II and III's allocations and the role of the FAR. As college athletics continues its real-time renaissance, the draft constitution will be a featured topic at the upcoming 2022 NCAA Convention.
Clarifying The Role of the NCAA President
In terms of the NCAA President’s role, the current NCAA Manual references the NCAA President’s role in a somewhat hodgepodge fashion. The draft Constitution attempts to consolidate the sporadic references in the current Manual in favor of enumerating five specific roles ranging from administering the national office to recommending to the Board “…measures in response to an action or statement by an institution or its representatives that materially violates a constitutional principle and undermines the interests of the Association.” During these tumultuous times, if, when, and how the NCAA President would come forward via the Board to reprimand or otherwise take action under this responsibility will be newsworthy should this come to pass.
There remain a couple of themes in the draft Constitution that may need additional clarity with respect to the NCAA President. First, the decision-making authority around the NCAA’s media contracts is referenced in different sections and, in turn, may create uncertainty. The media contracts -- especially the NCAA’s March Madness contract -- is of utmost importance to the membership’s financial vitality and the prior negotiation and sign-off of the existing March Madness broadcast agreement triggered significant criticism of the NCAA President for leaving billions of dollars on the table.
Under the NCAA President’s responsibilities, the draft Constitution states that the President shall “…approve Association contracts involving media rights and revenue producing agreements, consulting with divisional bodies.” In the Association section, though, it states that “The Association shall oversee broadcasting, communications and media rights for all NCAA conducted national championships.” Although one (Association) could encompass the other (NCAA President) -- making clear who shall be involved in the strategy and negotiations on behalf of the NCAA in its future media contracts cannot be left to conjecture or assumptions. In all likelihood, a media rights consultant will also be used in future broadcast right contracts.
Also of note: the draft Constitution places within the Board's responsibilities the duty to conduct an annual evaluation of the president, in consultation with the governing bodies of the three divisions. More accountability of the NCAA President’s performance has been a priority within membership circles in light of the Board’s surprising renewal of Mark Emmert as NCAA President last April, despite a variety of criticisms of his tenure.
As the NCAA endeavors to modernize its Constitution and its operating bylaws, it may be time to revisit the use of “Association” starting with this draft Constitution. There may be upside to include, for example, “NCAA National Office” responsibilities as a stand-alone section in this draft Constitution. The NCAA National Office is responsible for keeping statistics, coordinating NCAA championships, managing the NCAA’s intellectual property and the like. The current draft Constitution, and specifically the “Association” section, muddies the distinction between what the NCAA member schools are responsible for and what the National Office exists to manage.
Health & Safety
The sub-section specific to health and safety under the Colleges & Universities section is relatively verbose. This is a reflection of the emphasis on student-athlete well-being, protecting the autonomy of medical practitioners including team physicians to have authority over health care of student-athletes, increased awareness and education on mental health, and utilizing prevailing, consensus-based rules and policies impacting health, safety, and medicine around college athletics.
Follow the Money
The draft Constitution reaffirms that the financial allocation from the NCAA’s overall operating revenue sources to Division II and Division II will remain at 4.37% and 3.18%, respectively, -- percentages that have not changed since 1996.
Also interesting on the financial side of the draft Constitution is the intent to grant divisions the ability to “…levy assessments on their members which can be allocated to the division budget.”
For divisions that are considering an assessment on their membership, a review of their current codified membership dues ($1800 for Division I member schools) might be a good place to start. These membership dues levels have not changed in many years.
Other Notable Takeaways
The role of the Faculty Athletic Representatives (FAR) is fine-tuned with respect to serving as a reporting outlet for their student-athletes. The draft Constitution reads: “The FAR is the principal point of contact to whom student-athletes can report any action, activity or behavior by anyone associated with athletics programs inconsistent with this Constitution’s principle of student-athlete health and well-being. In this role, the FAR is a reporting contact for student-athletes independent of the institution’s athletic department, but not a legal advocate for student-athletes. The FAR, in this capacity, shall report directly to the member institution’s president or chancellor.” The clause indicating the FAR is not a legal advocate for the student-athlete reflects, in part, the misguided requests student-athletes have brought forward in asking their school’s FAR to represent their legal interests.
On the infractions front, the draft Constitution spells out that the “Division and, as appropriate, conference regulations must ensure to the greatest extent possible that penalties imposed for infractions do not punish programs or student-athletes not involved nor implicated in the infraction(s).”
This is the first time that protecting the innocent and uninvolved student-athletes and coaches within the Level I and II infractions’ penalty process has come forward in a codified way to live within the NCAA Constitution. The result of this clause could lead to muting the use of post-season ban penalties on sport programs and student-athletes who were not involved with the underlying Level I or II infraction in favor of using other significant penalties like increased fines on institutions found guilty of Level I or II infractions.
In the “Rules, Compliance and Accountability” section, the words “timely” and “consistent” were used in a couple of subsections pertaining to the investigation and adjudicatory procedures. Meanwhile, member institutions are called to comply “completely and promptly” with the rules and regulations of the division’s enforcement process.
Fuel-Efficient Governance
In the end, the draft Constitution attempts to create a leaner governance model, “decentralize” how the NCAA operates, avoid misplaced infraction penalty practices, and provide the car keys to the divisions to drive their respective fates. There are staffing, budgetary, and implementation considerations to sort. The NCAA membership has just over two weeks to assess this draft Constitution before it votes on it and becomes a reality. From there, the NCAA’s Transformation Committee, will take the baton in 2022 to further overhaul of the entire NCAA manual in alignment with the new Constitution.
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.
