Reform Fallout Creates Window for Keeping NCAA Intact with New Division

Significant organizational change usually requires powerful urgency, emerging coalitions and a window of opportunity to move against resistance to change. The last three years of uneven reform efforts by the NCAA built the reform coalition, but its failures fashioned the sense of urgency and window to change NCAA governance with a new division.

The Window of Opportunity

The paradox driving a new Division in the NCAA lies in how the reform failures created the necessary strategic window to mobilize everyone to achieve the long needed action. None of this could have happened without the NCAA Presidents efforts to reform academics, enforcement and rules of the last four years. The uneven pace and above all the Division 1 membership overrides of critical reforms finally exposed the inability of the class riven Division 1 to change it.

Remember the Presidents working with NCAA President Emmert had to go around the NCAA governance structure to pass most of the reforms. They knew real reforms would be stymied by the vetoes and pace of the Confederated NCAA. The Presidents worked through study groups and their Executive Committee that represented each conference.  In short periods of time they passed a set of strong academic, student welfare and enforcement reforms. Some of the best academic reforms and the new structure of coaching accountability along with systematized enforcement penalties go into place in August 2013.

Time and again, if the reforms cost money, the membership of Division 1 rose up and slapped down the changes. This finally revealed the class riven structural inability of the present Division 1 group to do simple justice to student athletes and reform the rulebook.

Keeping the NCAA Intact

This failed effort carved out the window to do what many have known needed to be done for the last ten years—launch a new NCAA division. Leaving the media pundits and SEC aside, most schools never favored seceding from the NCAA but wanted to create a new Division based on wealth and football status. The wealth inequalities had become too great and undermined efforts to simplify rules or get student athletes just stipends. This emerging focus, finally articulated by the super Conference Commissioners, focuses on keeping  the NCAA intact and nestling the super conferences in a different division. It represents a great success for the Presidents and Presidential control. Unlike  athletic directors and media pundits, the Presidents understand the academic dimensions of college sports and preferred to keep the NCAA and Presidential control intact.

The NCAA remains a voluntary professional membership organization with a weak presidential structure divided into three plus divisions each of which sets its own rules. The confederated structure vests power in the vote of the membership. The committees are designed with equal distribution of divisions to ensure that the common rules take into account all the diverse needs of widely diverse schools with different regions, academic and social missions as well as wealth.

Confederated structures are cumbersome and slow;

they are designed that way to elicit consensus and attend to everyone’s concerns. Masticated mush often comes out after four years of effort. But it does keep a strong focus upon student athletes and welfare across all the divisions and does a pretty good job of governing sports and running tournaments. It also does not mean that the same rules apply on all fronts to Division 1 or 3.

Keeping the NCAA intact matters. None of the Presidents and conferences wanted to rebuild the infrastructure or eliminate other sports. The organization does:

•  a great job of running tournaments; 
• a good job of managing rules of the game and adapting changes; 
• a relatively good job of distributing tournament money equitably and encouraging academic integrity; 
• a relatively good job of setting academic standards, attending to racial disparities and diversity issues; 
• an OK job of trying to manage the admissions and qualification processes as well as keeping up with the endless corruptions of the process; 
• a decent job of managing the complex international issues and Olympic and national competition issues involved in college athletics; 
• it does a really good job of day-to-day consulting and staying on top the endless array of NCAA rules and violations that keep endless consulting and conference calls between schools and NCAA on the vast majority of enforcement issues. Enforcement will always be a problem for any self-governing membership organization.

The NCAA awards championships in the following sports:

Baseball Division I Division II Division III Basketball Men's Division I Division II Division III Women's Division I Division II Division III Bowling Cross Country Men's Women's Fencing Field Hockey Football Division I (FCS) Division II Division III

Golf Men's Division I Division II Division III Women's Division I Division II Division III Gymnastics Men's Women's Ice Hockey Men's Women's Lacrosse Men's Women's Rifle Rowing Skiing Soccer Men's Women's

Softball Division I Division II Division III Swimming and Diving Men's Women's Tennis Men's Women's Track and Field Indoor Men's Women's Outdoor Men's Women's Volleyball Men's National Collegiate Division III Women's Water Polo Men's Women's Wrestling

No one has done enforcement well. Historically the NCAA ended up with enforcement because Conferences failed miserably at self-enforcement. Conferences handed it over to the NCAA because they could not successfully make and enforce their own rules without tearing themselves apart over conflict of interest and internecine battles. College athletics is too small a professional world and conferences way too small to achieve self-enforcement model without inherent conflict of interest. At the same time, serious enforcement in a confederated model will always take time and care especially without subpoena powers and when people have an incentive to lie. Whatever the rhetoric, the conferences don’t want and can’t do enforcement.

The new enforcement reforms clarify violation levels and expected punishments for rules violations makes huge progress. Most importantly it should limit discretion for most violations and make penalties more consistent and reliable.  Nothing will eliminate the need for careful, slow and slogging investigations and judgments on major messes. 

The NCAA has and will struggle, as do all self-governing organizations, to create a strong and independent and timely enforcement structure. These challenges will never go away and admit no easy solutions. It is important to remember that without subpoena power and facing incentives to lie, NCAA enforcement will take time and require accountability. The NCAA must get a more professionalized enforcement structure. But no self-governing professional association ever gets it right and will always be adapting and changing over time.

Class Divisions Paralyze Present Division 1

The real issue lies not in tension among divisions but the rift within Division 1. Here football super conference schools benefit from the modern media contracts, even though most still lose money. The five power conferences uneasily coexist with two other groups. The other football schools, usually lumped as mid-majors, do not have great media contracts and will never get them. They hemorrhage money. Even bleeding money, these schools desperately cling to football for reasons of prestige and visibility. They hope to sneak one representative into the major bowls or go to a minor a bowl where they will lose more money. The third Division 1 group encompasses the basketball only schools that fight to be in Division 1 to get access to the NCAA tournament.

Bob Bowlsby, the Commissioner of Big 12 and superb athletic director at Stanford and Iowa, pointed out that the NCAA had made it too easy to get into Division 1. Schools that can barely afford it clamor for the prestige and the NCAA tournaments and bowl access. This increase in size of Division 1 results in a fundamental rift between the super conference football schools—the BCS—and the rest. This rift is directly responsible for the incomplete reforms.

The mid major football schools and most basketball only schools oppose reforms and innovations that would cost more money. Reform efforts to mandate summer school and transition programs for at risk athletes were voted down because of cost consideration but glossed as academic freedom. One of the straws that broke the camel’s back lay in the override vote on class lines Division 1 that voted down the simple justice of providing cost of attendance stipends to college athletes. People pretended it was about  academic freedom issues and complaints about not having worked out all the glitches with Pell Grants, it really resulted in straight up class warfare where the have-nots and barely haves resist all student welfare and many academic reforms that would cost money and increase their perpetual deficits. The obsession with limiting cost and equalizing the playing field paralyze real reform for student welfare or rule simplification.

The second logic of this class split plays out in an obsession with rules designed to equalize the playing field. The excess of NCAA rules grows from two sources. First, many seek to avoid the grotesque special treatments that coaches pushed to recruit student athletes such as private jet rides, lavish gifts, clubbing, girls or banquets that undermined a legitimate and ongoing attempt to emphasize the student, not just the athlete. These will remain and as schools deregulate, they will return.

The other driver to proliferate minutiae rules comes from a fixation by less well off schools to minimize the advantages in recruiting student athletes by the richer schools. These can range from limits on meal expenditures, to limits on travel or to rein in boosters—remember in the fifties boosters just paid for students tuition and board on their own—to limits upon the amount of paper and size of books. Even attempts to deregulate communication with high school athletes failed here. The arcane and minute rules about level playing fields resulted from salutary desire to minimize arms race costs, but mainly to protect some chance to compete for student athletes by less rich schools.

This lead to the endless proliferation of rules; some make sense such as limits on gifts or booster access; some are just crazy such as communication limits. The reality is that great student athletes go to the top programs to win and compete. They follow the best coaches and the best chances to compete at highest level, get media exposure and win championships and in some cases prepare to become professional athletes. No amount of minutia tying up phone call limits will change these realities.  Yet this attempt to tie down the giants, as results in endless rules, more cost and fails as Gulliver’s Lilliputians learned.

Creating a new division will not solve all these issues. There will exist the cleavage between the superrich—Ohio State and Texas—the rich Michigan, North Carolina, USC—and the not really rich, Mississippi State, Washington State. But all the schools will have a reasonable chance to compete given the lifeline of TV football contracts.

New Division and Presidential Control

Keeping it in the NCAA also keeps the Presidents in charge. In the last two years, athletic directors using media contacts have waged a covert campaign to paint Presidents as too far away and out of it. Sometimes this is the case, but Presidents are actually responsible for educational institutions and keeping an educational component alive in sports; athletic directors only do so if driven by Presidents. The Presidents will keep control, hire and fire athletic directors, and attempt to keep an academic component in the world of athletics. Student athletes enter as students and the greatest long-term obligation of schools is to educate the 90,000 who graduate each year and do not become professional athletes not just focus about the 450 possible professionals the media cares about.

I want to make one point clear. The college presidents drive reforms, not the athletic directors. No major academic reforms and no major reform movements ever came from athletic directors. It is not they are bad guys, most are honorable and hard working, but they labor under intense short terms pressures to make money and create winners. They are not hired as educators and their incentives undermine that mission. Even when committed to student welfare and education, any reform that adds to complexity, requires more investment and means more accountability will be questioned. For some the academic component feels like a bother.

The paradox of the present moment of change lies in how the window of opportunity grew from both the successes—academic standards, graduation rates and higher penalties for lower graduation rates—and failures that manifest the intractable intransigence of the Division 1 have-nots. This window exposes the present form of Division 1 as a failed government approach. It needs to be reconfigured with a new division to transcend the class resistance to academic and simple justice reforms. If the NCAA membership as a whole does not respond to the legitimate concerns of the power conferences and the Presidents, it will fail as an institution.

NCAA Enforcement & Dilemmas of Self-Regulation

The recent mistakes the NCAA made in its Miami investigation called forth a predictable firestorm from the media mavens who make a career out of attacking the NCAA. I think it is overblown and think we should examine the Miami case in a wider context of the issues facing any self-governing professional association. This means we can admit the mistakes but also see why they occur, how they can be corrected. This approach does not require NCAA conspiracy or corruption. The report that NCAA commissioned from an outside law firm does a good job assessing the legal and institutional issues. The report reveals the NCAA as a reasonably competent, harried and generally effective self-governing group.

The wedding of sports and universities occurred as a philosophical plan and historical accident. 19^th century universities saw athletics as a natural extension of a classical education. Student athletes ran the early college teams. Very quickly teams took on outsize importance for alumni and school identity. By the 1870s teams were hiring ringers and nonstudents to play. Football ended up such a violent and important sport that when 13 athletes died in one year, President Roosevelt threatened national intervention. Colleges resorted to the classic American solution of a self-governing association to oversee sports. The NCAA grew slowly and awkwardly into a membership association with 1066 members trying to control the unwieldy and volatile world they inherited, spend money on, benefit from and barely control.

Self-regulating membership associations like the NCAA establish jurisdictional control over standards, membership and accreditation. Engineering, social work, medicine, law, construction and thousands of American enterprises depend upon professionals setting standards for membership and enforcing their existence.

The irony is that the media seldom worries about when doctors kill patients or or engineers design flawed buildings. The stakes in these self-governing professions are far higher than sports but largely ignored. These associations have elaborate systems of self-governance to ensure competent performance and reasonable competition. Professional associations police their own and have investigative and adjudicative procedures for sanctions.

American self-governing professionalism developed as a counterpoint to government control. Education remains no different with colleges subject to review by certifying professional organizations. When professional regulation fails, decisions may end up in the courts or before legislatures.

My point is the NCAA successes and failures are not unusual and reflect normal American practice with voluntary associations setting and enforcing standards.

Successful self-regulation requires member organizations internalize regulated standards. Most professional institutions will have inside compliance staff to help avoid pitfalls and keep standards. In major cases, the organizations might call in outside counsel or compliance experts.

The NCAA reflects this practice where local college compliance staffs work daily with central NCAA enforcement staff. As a professional association NCAA members have strong “affirmative obligations” to internally police and self-report violations.

 The reality of NCAA compliance, then, occurs in hundreds of weekly interactions between colleges and the NCAA staff. College compliance staff self-report, discuss and negotiate over thousands of major and minor issues to prevent, anticipate or creatively solve rules’ challenges. This quotidian reality of compliance and consultation works reasonable well.

The NCAA makes its fair of mistakes. I have direct experience of how UW and NCAA lost a major case against Rick Neuheisel when the NCAA forgot to follow new protocols. They are not perfect, but not fundamentally different from most self-regulating associations hampered by lack of subpoena power and facing incentives to hide information.

The report by Cadwalader Taft report on the NCAA performance in the Miami case exposes a reasonably competent and committed professionals. The report highlights the tensions between field investigation and internal legal accountability. The mistakes reflect the strain between the push to get the information and the legal constraints upon any investigation.

The NCAA faces the same problem all nongovernmental self-regulating groups face—not having subpoena power. Its members legislate rules, and members accept an affirmative obligation to report violations and cooperate with investigations. The vast majority of schools honor this obligation. Affirmative obligation and mutual trust are fundamental to self-governing professional associations such as the NCAA.

However, people lie.

Let me repeat, people lie, withhold information and misdirect.

People with high career stakes have incentives to lie. Miami coaches lied, mislead or withheld. Ohio State lied. North Carolina lied. Florida State lied. Michigan mislead. USC withheld and mislead. Head coaches claim convenient ignorance of the activities of their assistant coaches. New NCAA laws impose absolute accountability on head coaches so they could not slough off responsibility on assistants while benefitting from cheating.

The Miami report reveals that the NCAA investigators often piggy-back on other investigations to maximize capacity to get information. The NCAA investigators have limited budgets and need standard bureaucratic approval. Doubling up extends budgets and helps the NCAA get information they cannot find for lack of subpoena power.

All professional associations double up with formal investigations if they can. The Miami report explained that the NCAA had strong internal limitations upon how it can acquire information. Investigators are prohibited from sting operations or lying to elicit testimony. These are court-sanctioned activities but report makes clear that the NCAA takes limits seriously.

The NCAA internal process worked to a point. The investigator Mr. Ameen Najeer found third parties would not talk with him and hit upon what he regarded as an ingenious solution. He could double up on depositions taken by Mr. Shapiro’s defense lawyer over bankruptcy.

Mr. Najeer reported the idea to his superiors. They discussed it with the Executive Vice President Jim Isch to get authorization for budgets. The need for budgetary approval flows through the report emphasizing the NCAA like everyone else has resource limits and accountability issues. The compliance leaders also sought legal clearance.

This request for a legal opinion should reinforce confidence in the internal process and integrity. The head lawyer mentioned two basic issues. First, the use of outside counsel required approval and reporting to legal office. Second, the legal counsel argued that Najeer’s approach violated internal rules. Counsel opinion nixed the approach. The investigator’s superiors supported this and refused the request.

Up to this point the organization functioned on point. Najeer, however, developed a “work around,” but did not inform his superiors nor get budget authorization. This meant that Perez did conduct depositions for bankruptcy that she shared with the Najeer. This information helped shaped the NCAA bill of charges.

The report correctly faults the internal leadership for not following up on the investigator’s actions and not monitoring more tightly. When the NCAA discovered what Najeer had done, it eliminated the “tainted” information, notified Miami and revised the charges.

The report illuminates how hard investigations are without subpoena and when people with affirmative obligations choose to lie and withhold. We should not forget, that Miami President Shalala’s protestations aside, Miami has created a failed athletic culture with three major implosions in 15 years. The report makes clear how vital confidentiality remains during an investigation.

Good self-regulation requires internal legitimacy, affirmative obligations to cooperate, a responsible rule making process, and strong compliance and consulting programs. These need to be reinforced by a system of investigation and adjudication that is both professional, legally accountable and adjudicators that possess peer legitimacy and expertise but also have some claim to impartiality and fairness.

I think the NCAA process is basically intact and responsible especially in its daily work. It’s major investigations reveal the need for a more professionalized and accountable investigative arm. Moreover, the NCAA faces serious issues with excessive rule making as well as issues of how to ensure consistency across decisions made by the compliance committees. This is not conspiracy or corruption, it is the reality of self-regulation.