By: Carlo Ballesteros-Flores
Following years of backdoor payments to athletes and multiple deaths on the field of play, the National Collegiate Athletic Association (“NCAA”) was established in 1906 to regulate college sports. The NCAA’s objective was to protect the health and safety of college football players and to serve as a regulator as athletes increasingly received under-the-table payments in exchange for their athletic performance. However, the NCAA truly began to develop its power over its member institutions in 1951 under the stewardship of Walter Byers. Unfortunately, the NCAA forgot what its mission was along the way.
The NCAA is governed by different decision-making bodies such as the Board of Governors, Divisional Councils, and Safety Council, with each being comprised of individual member institutions (colleges and universities). However, the NCAA, as an organization, has been more powerful than any individual institution and has micromanaged nearly every aspect of college athletics for over 100 years. Last year, the NCAA’s structure succumbed to “attack” from state legislatures, student-athletes, advertisers, and even the Supreme Court. The “attack” came in the form of the Supreme Court deciding that the NCAA was in violation of antitrust laws in NCAA v. Alston. Nine days later, various name, image, and likeness (“NIL”) state laws came into effect, invalidating a key part of the NCAA’s compensation rules which did not allow student-athletes to earn compensation in exchange for use of their name, image, and likeness. And most recently, as a means for “fighting back,” the NCAA approved a new NCAA Constitution (“Constitution”) on Jan. 20, 2022.
The Constitution is a clear response to the passage of NIL laws and NCAA v. Alston. It formally recognizes student-athletes’ rights to profit from their own name, image, and likeness. Overall, the Constitution seeks to divest power from the central decision-making bodies within the NCAA to the three divisions that make up the NCAA. By empowering the divisions—granting them greater authority to make decisions for member institutions—the NCAA seeks to be in compliance with antitrust laws as decisions are made more consistently in a bottom-up manner. Under the structure, the divisions will have enforcement powers over NCAA rule violations rather than an association-wide enforcement scheme. Additionally, the Constitution leaves NIL rules up to the divisions.
The divestiture does not end with empowering the divisions through decision making and enforcement—it further grants independence at the conference and institutional level. The divestiture narrows the number of institutions impacted by a rule passed in contrast to association-wide rules. This is important as a key part of antitrust litigation is first determining if the defendant or defendants have enough market share that it will affect consumers. In Alstonthe Court found that the NCAA did violate the Sherman Act by solely looking at Division I as the relevant market. Furthermore, the brevity (twenty pages) of the Constitution leaves many key questions unanswered nor does it bring the NCAA structure into compliance with antitrust laws.
A key phrase of the Constitution is that any and all decisions made by the divisions, conferences, and institutions must be “consistent with the principles of the Association.” On its face, this is fairly innocuous language as it creates unity among the different entities that make up the NCAA. However, the language of Alston does not grant the NCAA much room for interpretation which may cause anti-competitive outcomes. By including this phrase throughout the Constitution, the NCAA is pushing divisions, conferences, and individual member institutions to act in concert with each other in a way that will likely meet the conspiracy element of the Sherman Act.
Article I of the Constitution establishes the eight guiding principles of the NCAA, it commands that any decisions made at the association, division, conference, and institutional level shall be consistent with these principles. A spotlight will be placed on the second principle. The second principle is “[s]tudent-athletes may not be compensated by a member institution for participating in a sport.” The recent matter of Johnson v. NCAAsignaled that this second principle violates both antitrust and employment laws at the state and federal level.
The Constitution leaves many areas open to interpretation like when is it necessary for the NCAA to step to promote and maintain the Association’s core principles. This represents artful construction of the Constitution to maintain control with the appearance of divesting power. Additionally, the Alston opinion sought clarity from the NCAA because “nowhere [does it] define the nature of the amateurism they claim consumers insist upon.” There is no mention of amateurism in the Constitution.
In his concurrence in Alston, Justice Brett Kavanaugh opined that “the NCAA is not above the law.” With that in mind, it can be accepted that the Constitution represents some progress from the draconian power of the NCAA by enshrining the NIL rights of student-athletes, empowering individual institutions, and acknowledging the need for further review of college athletics. Unfortunately for the NCAA, it is not enough to win the war. Instead, the Constitution galvanizes its opponents to continue pushing for change and filing suits.
Carlo Ballesteros-Flores is second-year law student at Wake Forest University School of Law and worked for the Wake Forest NCAA Compliance office in 2021. He graduated from Wake Forest University with a Bachelor’s in Philosophy and Political Science. Carlo intends to practice Sports and Entertainment Law.