The format of this episode is a bit unusual. When I initially recorded (November 8th), the NCAA had not released its draft constitution. However, before going live with the episode, the NCAA released its draft constitution. My original episode was a discussion of the composition and purpose of the Constitution Committee and recorded with the assumption that the Committee would not release its work product until November 15th. After reading the draft constitution, I decided that my “set up” episode was relevant. I discuss the composition of the Committee and its purpose. I use a September 10th interview that Bob Gates gave to an NCAA podcast as the launchpad for my analysis. This episode is a predicate for an analysis of the draft constitution.

The NCAA’s vaguely defined “Constitution Committee” is due to announce the terms of its “transformative” overhaul of the NCAA constitution to align NCAA “responsibilities” with NCAA “authorities.” According to NCAA Board of Governors member Bob Gates—the committee chair—the NCAA is in an existential battle for “relevance” as a national regulatory authority in college sports. One pathway to national relevance (in addition to the federalization of the NIL marketplace through preemption) is the NCAA infractions and enforcement apparatus. Gates’ alignment theory suggests the importance of the NCAA police state at the national level. There appears to be some internal disagreement on that point. Independent of the NCAA Board of Governors and the Constitutional Committee, the NCAA Division I Board of Directors recently announced the formation of a “Transformation Committee”—with similarly vague objectives. Both committees are comprised of NCAA/Power 5 insiders and adhere to big-time college sports’ code of omerta. The family feud appears to pit the interests of the haves (Power 5) and have nots (lower-level Division I and all of Divisions II and III) under the NCAA umbrella. At the heart of the conflict is the future of the NCAA national office administrative state. By aligning its interests with the direct beneficiaries of March Madness money in Divisions II and III, the NCAA seeks an insurance policy to justify its national office bureaucracy supported solely by the CBS/Turner March Madness contract. The plot thickened on November 2 when Tennessee House member David Kustoff introduced the “NCAA Accountability Act” in Congress, substantially limiting the NCAA’s infractions and enforcement authority and jurisdiction. This episode sets the table to analyze the evolving behind-the-scenes skirmish between the NCAA national office and Power 5 football interests.

On September 30th, 2021, Mark Emmert made his fourth appearance in Congress over twenty months to plead for federal protections and immunities to protect the NCAA from itself. Like the high-powered NCAA lobbyists that orchestrated the hearing, Emmert knew no shame in pumping propaganda that should now be irrelevant. In late 2019 and throughout 2020, the NCAA’s built its Senate campaign around obtaining complete antitrust immunity, the nullification of any state law or regulation that overrode NCAA’s amateurism-based compensation limits. The NCAA pitched these extraordinary federal protections and immunities as essential preconditions to the existence of any name, image, and likeness opportunities for athletes. Using decades-old scare tactics, the NCAA predicted that if state NIL laws went into effect on July 1st, 2021, then college sports would be brought to a fatal collapse. With the nascent NIL market taking shape, the NCAA is desperate to slow or reverse market momentum. This episode analyzes the NCAA’s motives in its re-engagement with Congress and discusses the testimony of four witnesses.