On August 11th, an NCAA Committee on Infractions (COI) panel issued its decision on Baylor University’s failure to report a series of alleged violent acts against women by Baylor football players. The COI found no NCAA rules violations despite the institutional acknowledgment of a “colossal operational failure” and universal condemnation of Baylor’s conduct by numerous outside investigatory bodies. Rather than look to provisions of the NCAA constitution that bombastically promote gender equity and safe campus environments, the COI instead tried to hammer Baylor’s misconduct into an NCAA bylaw (Bylaw 16, “Awards, Benefits and Expenses for Enrolled Student-Athletes”) that generally prohibits “extra benefits” such as free car rides, free meals, and complimentary game tickets. The COI attempted to avoid addressing the absurdity of reliance on Bylaw 16 by claiming it was up to the “collective membership” to determine whether that bylaw covered the conduct at issue in the case. The Baylor decision shines a bright light on two crucial elements of the NCAA’s regulatory house of cards: (1) the absence of any NCAA legislation that specifically protects the lofty principles contained in the NCAA constitution; and (2) the actual focus of NCAA legislation on issues that relate almost exclusively to protecting the NCAA’s business model and revenue streams, namely rules that enforce the NCAA’s conceptualization of amateurism. This glaring hypocrisy begs the question of why the NCAA so aggressively promotes and markets for public relations purposes constitutional principles it has no intention of standing behind. This episode analyzes the Baylor decision and offers thoughts on what it says about the NCAA and new-found quest through its Constitutional Committee to “align responsibilities with authorities.”

The NCAA constitutional committee has begun its campaign to “align responsibilities with authorities.” Through “independent” Board of Governors member Robert Gates, the NCAA has framed this alignment to suggest that the NCAA has too much responsibility and too little authority. The opposite is true. In the last episode, we looked at how little responsibility and accountability the NCAA actually has. This episode examines the NCAA’s audacious claim that it has little authority as well as its covert attempts to expand its powers. We also explore the basic contours of the NCAA’s infractions and enforcement process, emphasizing its coercive elements. We also look at the infractions/enforcement process through the lens of the Commission on College Basketball’s which recommended in 2018 a “prompt, radical transformation of the NCAA’s investigative and enforcement process.” In 2019, the NCAA quietly attempted to intervene in a criminal case—United States v Gatto— arising from the 2017 college basketball scandal to obtain investigatory “materials” (FBI wiretap transcripts, text messages, emails, correspondence interviews with witnesses) so offensive and unreliable to the court that they were excluded from evidence and placed under seal. The materials were infused with hearsay, gossip, innuendo, and unverifiable allegations. The NCAA intended to use these materials in their infractions and enforcement process to identify, charge, and prosecute “bad actors.” Both the prosecution and the defense opposed the NCAA’s request, and the judge denied it. The NCAA also seeks subpoena power through Senator Jerry Moran’s (R-KS) February 2021 bill—the “Amateur Athletes Protection and Compensation Act of 2021.” Under Moran’s proposal, the NCAA would have the authority to request subpoenas to compel the production of documents and testimony for use in its enforcement and infractions process. Far from having “little authority,” as the NCAA and Gates claim, the NCAA acts as a rogue administrative state with breathtaking authority and power.

On August 11th, 2021, the NCAA Committee on Infractions issued its non-decision in the Baylor case. The COI concluded the central allegations relating to an out-of-control, corrupt football program and culture were beyond the reach of existing NCAA enforcement jurisdiction. The COI reached the correct conclusion legally, but it begs the question of why the NCAA yet again finds itself defending non-action in a case that screams for prompt, aggressive reprisals. The answer lies in the fundamental disconnect between the NCAA’s claimed values expressed in the NCAA constitution and its persistent refusal to honor them. This tension is the basis for the NCAA’s newfound emphasis on “aligning its responsibilities with its authorities.” This tagline is the NCAA’s new propagandist coup and forms the justification for a constitutional convention tasked to redraw NCAA principles and governance. In fact, the NCAA has very little responsibility and significant, unchecked authority. This episode focuses on how the NCAA has built a legal firewall from any meaningful responsibility and accountability for the lofty principles found in Article 2 of its constitution. The NCAA has cynically commodified and sold these empty promises that have enormous market value to the highest bidder.

As state legislatures in Washington and California began deliberations on name, image, and likeness legislation in late 2018 and early 2019, Congressman Mark Walker (R-NC) devised then introduced on March 14, 2019, a bill in House that would have stripped the NCAA of its tax-exempt status unless it permitted NCAA athletes to be “reasonably compensated” for the commercial use of their NIL. Titled the “Student-Athlete Equity Act,” Walker’s bill prohibited the NCAA from “substantially restricting” athletes’ use of NIL in transactions with third-party contractors. Cedric Richmond (D-LA) signed on as co-sponsor. Seven more congressmen (three Republicans and four Democrats) would later join in. Three of the nine are African American. Importantly, all nine co-sponsors represent(ed) states with substantial Power 5 interests (CA, FL, KY, LA, NC, PA, and TX). While the bill was thin on substance—the operative provision was a mere fifty-five words—its’ group of sponsors posed a material threat to the NCAA’s and Power 5’s burgeoning campaign in the Senate to eliminate external regulatory threats to the big-time college sports business model. Walker’s bill never made it out of committee. Still, it was a substantial contributing factor in pushing the NCAA and Power 5 into an aggressive, multi-pronged quest for the Iron Throne of college sports regulation. The Walker bill was an inflection point in the NCAA’s consequential shift from defense to offense in its audacious and historic regulatory power grab.