NCAA announces revisions to its proposed constitution

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On December 7, 2021, the National Collegiate Athletic Association’s (NCAA) constitution committee released the latest draft of a proposed new constitution. Though the process continues over the next several weeks, with a goal of culminating in late January 2022, the draft is now at a point where it’s fair to say that intercollegiate athletics may look considerably different over the next several years – or, at least how it’s governed. All of this comes in the shadows of the U.S. Supreme Court’s decision in Alston, in which the court unanimously ruled that the NCAA’s limitations on athlete compensation for academic-related costs violate the Sherman Antitrust Act. So, keep Alston in mind while reviewing the constitution committee’s proposed changes.   

The draft, which builds on the initial version released in early November 2021, clarifies a number of proposals and is largely the result of feedback received by NCAA members.  Overall, the most recent draft shifts closer to the NCAA’s stated goals of allowing each division to govern itself and to allow athletes a greater role in the decision-making process. This latter point is somewhat overshadowed by the fact that the second draft of a proposed new constitution still does not include specifics regarding non-discrimination.   

As it currently stands, the draft constitution scales back the role of the NCAA’s Board of Governors and shifts much of that authority to the divisions, stating that “[e]ach division shall have independent authority to organize itself, consistent with the principles of the Association.” This raises a number of questions around what “consistent with the principles” means and whether the divisions can truly operate autonomously from the NCAA. Although the concept is not entirely new – autonomous conferences (or, the Power 5) have possessed the authority to pass their own legislation since 2014. These questions could become more important as each division may be inclined to create more sub-divisions or new divisions with their own membership eligibility. 

Continuing with the power shifting theme, the draft constitution would solidify an athlete’s ability to be compensated for their name, image and likeness (NIL), though it would leave it to each division to establish NIL guidelines for athletes “to prevent exploitation of student-athletes or abuses by individuals or organizations not subject to the authority of the student-athlete’s school.” It would also require conferences and institutions to provide athletes with policies for the “licensing, marketing, sponsorship, advertising and other commercial agreements that may involve the use” of an athlete’s NIL. This also raises issues with respect to how NIL policy making will be operationalized. Recall that the NCAA’s compensation rules, and its rule-making process, were the recipient of heavy scrutiny in Supreme Court Justice Brett Kavanaugh’s Alston concurrence. To that end, there remains an open question as to whether shifting policy making down to the divisions will satisfy the antitrust concerns that Justice Kavanaugh raised. 

While there is plenty more to pick apart in the most recent draft, one noteworthy takeaway is that the constitution committee did not shy away from using the phrase “student-athlete.” In fact, by our count, the phrase appears some 44 times. While the word “amateur” has been removed in its entirety (compared to the current constitution, where it appears numerous times), the committee was apparently loathe to shift away from “student-athlete.” The current draft of the constitution opens with “The Primacy of the Academic Experience,” noting that the institution bears responsibility for ensuring that “a student-athlete’s activities are conducted with the appropriate primary emphasis on the student-athlete’s academic experience.” For those that have been following along, this puts the document at loggerheads with the National Labor Relations Board’s memo about the use of the phrase “student-athletes.” 

For now, the draft heads to the Board of Governors on December 15, 2021, with a goal of having a new constitution by the end of January 2022.    

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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