A guide to the key legal reforms considered at the NCAA's 2016 Convention
Published 28 January 2016 By: John Wolohan
What a difference a year (and two court victories – see below) makes. Based on last year’s historic National Collegiate Athletics Association (NCAA) convention, some people assumed that this year the “Power 5” schools (see below) would submit a number of new proposals aimed at granting athletes greater rights and benefits and rebalancing the time they spend on athletics and academics. For the most part, however, the 2016 conference, which took place in San Antonio, Texas on January 14 – 16, failed to live up to that expectation.
This blog recaps key points from 2015, before examining some specific proposals from 2016’s convention.
Recap of 2015
Last year, at its annual conference, NCAA member schools voted to give the Atlantic Coast (ACC), Big Ten, Big 12, Pac-12 and Southeastern conferences (the Power 5) autonomy to create their own rules.1
The Power 5 had been increasing frustrated at their inability to enact legislation to provide students with extra benefits. Last year, however, faced with the threat that the Power 5 could actually break away from the NCAA, and lawsuits challenging the employment status of scholarship athletes ( NCAA v. Northwestern2) and the right of those athletes profit off of their images, names and likenesses (O'Bannon v NCAA3), the other members of the NCAA caved in an allowed the Power 5 schools to create their own rules.
The NCAA and the Power 5 schools would eventually win these two cases when the National Labor Relations Board unanimously refused to accept jurisdiction in the Northwestern case;4 and the Federal Ninth Circuit Court of Appeals ruled in O’Bannon5 that even though the NCAA rules governing athlete compensation and image rights was a restraint of trade, in violation of the antitrust laws, schools did not need to compensate the athletes any more than the existing academic scholarship. Anything more, the court held, would strip the athletes of the amateur status and change the nature of college sports.
With their new authority, the Power 5 last year voted to give scholarship athletes a stipend ranging from $6,000 to $2,000 per year depending on the actual cost of the school the student attends to cover the full cost of attending the school above and beyond what their scholarship covers.
It is important to note that while the Power 5 have the autonomy to create their own rules, any Division I conference not in the Power 5 Conferences has the right to adopt the same rules for its member schools. However, since the Power 5 Conferences are made up of the 65 schools that generate the most revenue via athletics, it can be difficult for schools to keep up with Power 5 schools.
Key proposals from 2016’s Convention
The author will give short review of specific proposals that stood out at the 2016 convention.
Proposal No. 2015-81 - New Rule Concerning Conference Championship Games in Football
In perhaps the most important vote of the convention, the NCAA voted to approve a proposal by the Big 12 Conference to allow conferences to conduct conference championship football games with only 10 teams.
Under the old rule, NCAA Bylaw6 126.96.36.199.1 conferences could only stage a conference championship football game if the conference had at least 12 members divided into two divisions of six and played a round-robin schedule. Since the Big 12 Conference has had only 10 teams for the last five years, it has been the only Power 5 Conference unable to stage a championship football game and has lost tens of millions of dollars annually under the rule.
In addition, the Big 12 Conference was also worried that not having their league champion play a thirteenth game might have a negative impact on their teams getting into the College Football Championship.
Therefore, if the Big 12’s proposal failed, it was believed that the conference would have been forced to consider expanding by at least two teams which would have set in motion another round of expansion.
Proposal Nos. 2015-25/26/27 – reductions to the amount of time athletes are required to spend on athletics
In addition to allowing the Big 12 to host a championship football game, the Power 5 Conferences in a special “Autonomy Business Session” debated a series of other proposals. For more information on all the proposals considered by the Power 5 schools, most of which were designed to go into effect by August 2016, see the 2016 NCAA Division I Autonomy Official Notice.7
The first series of proposals, which the Power 5 schools voted to table until the 2017 convention, were three proposals that would have reduced the amount of time athletes are required to spend on athletics. These were:
- Proposal No. 2015-25 - which would have required athletes to take a day off each week during the season;
- Proposal No. 2015-26 - which called for a three-week discretionary period following the championship segment of a season, during which only voluntary athletics activities may take place; and
- Proposal No. 2015-27 – which sought to create a continuous eight-hour free period, which would have prohibited any athletically related activities, other than competition between 9 p.m. and 6 a.m.
The proposal which were in response to the NCAA’s 2015 Growth, Opportunities, Aspirations and Learning of Students in College (NCAA GOALS Study8), which found that a majority of athletes indicated that they were spending too much time of athletics at the expense of their academics.
As a result, many athletes wanted an additional time off during and right after the end of a season. In that same study, however, more than 40 percent of male Division I athletes reported they would prefer to spend more time on athletics, not less.
Proposal No. 2015-19 – Athlete use of name, image and likeness
The Power 5 Conferences tabled a proposal that would have given athletes the right to use his or her name, picture or likeness to promote his or her own business, provided the business is not athletically related and the promotion does not include any reference to the individual's status as a student-athlete or affiliation with the institution's department of athletics.
Under current rule, 188.8.131.52,9 athletes cannot be compensated for the value of their athletic reputation (name, image or likeness) to promote products, although the schools can use the athletes’ rights.
In tabling the proposal, the Power 5 Conferences claimed that there was no need for new legislation since the NCAA’s current rule allows athletes to petition for a waiver of the existing rule.
Proposal No. 2015-15 – Medical procedure for suspected concussions
Also noteworthy was the Power 5 proposal that created an independent reporting line for medical staff.
Under the new rule, 184.108.40.206, member schools must establish an administrative structure that provides independent medical care and affirms the unchallengeable autonomous authority of primary athletics health care providers (team physicians and athletic trainers) to determine medical management and return-to-play decisions related to student-athletes. In addition, schools need to designate a director of medical services to oversee the institution's athletic health care administration and delivery.
Proposal No. 2015-18 - Rule Allowing High School Baseball Draftees to Hire Agents
Under Proposal No. 2015-18, NCAA members agreed to modify the current rules regulating agents and high school baseball players.
Under the current rule, Article 12.3.1 [A]10 high school students drafted in the Major League Baseball (MLB) amateur draft lost their college eligibility once they agreed (orally or in writing) to be represented by an agent for the purpose of marketing his or her athletics ability or reputation in that sport, even if they could not successfully negotiate a contract.
Under the old rules, Article 220.127.116.11 the key was having the agent in the room during discussions of a contract offer with a professional organization or have any direct contact (in person, by telephone or by mail) with a professional sports organization on behalf of the athlete. As a result, the athlete and his parents were required to make life-changing decisions about whether to go to college or take the money and turn pro without the help of an agent / lawyer.
Under the new rule, 18.104.22.168, prior to full-time collegiate enrollment, a high school baseball players recruited by schools in the Power 5 Conferences who is drafted by a professional baseball team may be represented by an agent or attorney during contract negotiations without losing their college eligibility.
However, in order to retain their eligibility to play in college, the athlete must not sign with the professional team and the athlete pay the agent his standard fee for the negotiating services.
In addition, the athlete cannot receive any other benefits from the agent beyond negotiating services and if he decides to retain his college eligibility, he must sever all ties with the agent before formally enrolling and beginning his college academic and athletic experience.
Proposal No. 2015-21 - Paid recruiting visits for up to four family members
Under Proposal No. 2015-21, the NCAA approved allowing schools to pay for up to four family members during recruiting visits. While this proposal increases the recruiting costs for colleges, and put greater financial pressure on non-Power 5 schools who want to offer the same benefit, the new rule actually is a common sense change to the current rule.
Under the current rules 13.6.4 – 13.6.7, the only expenses that the school can pay for during an official visit are transportation to and from the college for the athlete being recruited, lodging and three meals per day for the athlete and his or her parents or guardians, as well as reasonable entertainment expenses.
By allowing the schools to pay for the parents’ transportation, it is more likely that the athlete’s parents will now be part of the recruiting process.
While the NCAA’s 2016 Convention may not have broken any new ground by granting college athletes greater rights and freedoms, when people look back there are a few things worth noting.
First, by allowing the Big 12 Conference to host a football championship with only 10 teams, the conference has no need to actively recruit schools and expand. While some of the schools in the Big 12 may want to expand anyway, for recruiting and television markets, the financial pressure to expand has been reduced.
In addition, some of the proposal that passed, show that while the NCAA as a whole may be slow to make common-sense changes, the Power 5 Conferences are willing to act alone when it comes to improving the welfare of athletes.
What was disturbing however was their willingness to table the various proposals designed to provide athletes a better balance between athletics and school. The NCAA and the Power 5 Conferences claim that they care about the athlete’s education, not just what he or she can do on the field or court.
However, when they are seen as unwilling to make reasonable changes to the demands placed on athletes, and to protect the educational opportunities of athletes, it becomes difficult to believe that they are not simply renewing their exploitation of college athletes.
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- Tags: American Football | Baseball | Basketball | Governance | National Collegiate Athletic Association (NCAA) | National Labour Relations Board | NCAA Bylaws | Regulation | United States of America (USA)
- Will restructuring the NCAA change the balance of power?
- The NCAA cases: is it losing its hold on college sports in the United States?
- A full review of the O’Bannon v. NCAA judgment
- College Athletes Players Association v. Northwestern University
- A full review of the National Labor Relations Board’s decision in NCAA v. Northwestern
About the Author
John Wolohan is an Attorney and Professor of Sports Law in the Syracuse University Sport Management program and an Adjunct Professor in the Syracuse University College of Law. In addition to being one of the lead editors of the book "Law for Recreation and Sport Managers" by Cotten and Wolohan, John has been teaching and working in the fields of doping, antitrust, gaming law, and sports media rights for over 25 years.