Proposed NCAA Legislation/Autonomy Round 2

On November 9, 2015, in NCAA, Vince Nicastro, by Nina Friel
Photo credit:

Photo credit:

By Vince Nicastro*

Recent Division I Governance Changes

In July 2014, the NCAA DI Board approved a new Division I governance structure.  The net result of which provides more influence and voting rights for the so-called Power 5 (“P5”) conferences.  More specifically, the new governance model allows for “autonomous rules” – legislation in specific categories that can essentially be unilaterally adopted by the Power 5 conferences (with no input from the rest of Division I).

The new structure, and accelerating shift in influence toward the higher resourced conferences, is the result of years of discussion and debate pertaining to their desire to have greater control of policy issues in college athletics.  The Power 5 have even gone as far as to use veiled threats of a possible “split” from the rest of DI.  As a result, the Division I membership did accede to the new structure, which allows for some degree of autonomy in rules and policy matters by the P5.

Round 1 of Autonomy – Cost of Attendance Focus

In the first round of autonomous activity last year, several new pieces of legislation were adopted.  The most impactful being the ability to extend the scholarship definition to cover the “full cost of attendance.”  This was clearly an attempt to pre-empt a number of high profile legal challenges being made regarding the NCAA’s historical cap on the value of a scholarship.  As a result, all 351 members in Division I (effective 2015-16 academic year) now have the opportunity to offer a cost of attendance stipend on top of the traditional scholarship.  Depending on the school’s specific COA figure (it varies from school to school based on a formula) and their application of the rule, the additional cost per institution could exceed $1M annually.  Real money, even for those schools at the top of the P5 group.

As the new governance structure was being debated, there was palpable anxiety from non-P5 school Athletic Directors.  The fear was that the autonomy afforded the Power 5 would pose a significant threat from a competitive and financial perspective and that the P5 conferences would quickly propose and adopt rules that lower resourced schools simply couldn’t afford.  The Machiavellian result would be a further separation of the P5 schools from the rest of Division I – and a possible break off of that group.

Round 2 – Modest Changes

We are starting to see the second wave of autonomy proposals, which were recently distributed to the membership for comment.  At first glance, there appears to be nothing seismic here.  And this hopefully allays some of the initial anxiety from the Division I membership.  In fact, the tenor of the 14 autonomy proposals is decidedly focused upon improving student-athlete conditions, safety, and welfare.   Obviously, these issues have been scrutinized as well, not only in the litigation, but as a key element of the Northwestern unionization effort.

Some of the new proposals include assignment of an independent medical director which would insure unchallengeable authority relating to injury assessment and return to play decisions (i.e. removing coach or other influence).  Another would permit a student-athlete to own and promote their own business activity – provided it’s not athletically related.  A win for the young entrepreneurs.

There are three important proposals related to time demands.  It has been well-documented (and reinforced in the Northwestern case) that the time commitment required of student-athletes is significant – and often out of balance.  Remember the “20-hour rule” and mandatory one day off each week?  Neither have really helped alleviate the time pressures on student-athletes, their impact having been watered down by outright lack of compliance and technicalities, like “voluntary activities.”

The three current proposals include a travel day not counting as a day off, a 3-week period of no countable activity at the end of each sport’s season, and a 9pm to 6am prohibition from activity.  All of these sound fair in principle, but can be difficult to implement, as nuances exist around each sport.  Assuming that the 9pm to 6am prohibition passes, there will certainly continue to be NCAA tournament games that start after 10pm.  Not great optics for the governing body.

One of the more intriguing proposals relates to agents in the sport of baseball.  The proposed rule would permit baseball players (prior to fulltime enrollment) to retain agents to represent them during contract negotiations with pro teams (with some qualifications).  Could this softening of the membership’s attitude toward agents become the first step toward allowing formal agent relationships in other sports?  That would clearly be a major philosophical change.

Net Effect of Round 2

The disparity in resources across Division I has existed for many years, with total annual athletic budgets ranging from a few million dollars to well over $150M.  That disparity seems to have been exacerbated in recent years as the Power 5 have become flush with cash, primarily as a result of lucrative media rights agreements.

To be sure, the cost of attendance and other recent rule changes (unlimited meals, for instance) has impacted the P5 budgets significantly, leaving some amongst them questioning the prudence of such action.  Remember, disparity of resources also exists within the P5 conferences (Ohio State vs. Purdue, Oregon vs. Washington State, Florida State vs. Wake Forest) – which generally means there is not unanimity on every policy issue.  In fact, Boston College broke ranks and voted against the cost of attendance proposal last year.

The second year of the autonomous rules environment seems to be focused less on legislation that will impact the budget and more on qualitative issues related to student-athlete welfare.  Time will tell how autonomy will impact the Division I membership, particularly below the P5.  But, in the second wave of autonomous rulemaking, it seems like the fear of being priced out of the market has been temporarily averted.


* Vince Nicastro is the former Athletic Director for Villanova University, and currently serves as Associate Director for the Jeffrey S. Moorad Center for the Study of Sports Law.


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