Penn State & the NCAA: Restorative Justice, not the Death Penalty

The NCAA Will Act on Penn State & Should Seek Restorative Justice not the Death Penalty

People are demanding the NCAA to act against Penn State for its moral horror show in the Sandusky affair. I think the NCAA will act but am not sure it should. But if it does, it should act to restore justice, not impose retribution.

The NCAA is a confederated membership nonprofit organization with complex bylaws that grant immense autonomy to campuses and conferences. It is not a state actor and schools have jealously limited its power.

The bylaws resolutely stick to issues around equal playing, sports governance, athlete welfare and amateurism. The bylaws define legal not moral requirements of membership. The academic institutions jealously guard local prerogatives and resist reforms that centralize power. Athletic directors and coaches along with the media hate NCAA enforcement. None of them want an ethics police.

Acting now against Penn State “for the good of intercollegiate sports” would involve an unprecedented assertion of power by the NCAA. The claim would be that Penn State as an institution and football team failed in their institutional control. Penn State failed but it is not clear it involved NCAA bylaws.

Here are the reasons for caution:

1.  1t is not clear any major NCAA bylaws were actually violated. The NCAA has no morals clauses; it does have clear moral ideals in its governing documents. Most “morals” violations such as sexual harassment or substance abuse remain at campus level and violate campus rules and state law. The NCAA seldom gets involved as an ethics politice unless it involves institutional dereliction and student welfare. Penn State is not about student welfare.
2.  Mark Emmert has pointed out the NCAA has no precedent, the actions are “unprecedented.” He has made clear the NCAA should not be bound by the past “normal” expectations. The NCAA issues thousands of punishments as regular administrative actions on minor violations such as practice or travel times violations. These rulings occur around complex rules to protect student athletes and ensure some fair play. Even major violations involve two separate issues.
1. they entail a clear and proven major violation such as impermissible benefits or agent contact or illegal recruiting. None of these activities remotely relate to ignoring or covering up the abuse of children by a former coach.
2.  the most serious infractions involve loss of institutional control and deliberate cover up. Penn State qualifies in spades. But it is not clear the leaders even worried whether these were NCAA violations. They were trying to protect their institution’s reputation, not hide from the NCAA.
3.  NCAA infractions investigators are not equipped to examine criminal actions and must defer to criminal investigations. NCAA personnel have neither training nor writ in these areas.
4.  The case involves hard issues of statute of limitations for most NCAA violations. The abuse probably began before 1977 (35 years ago) and Sandusky retired in 1999. He had a privileged Emeritus status for the last 13 years, but no formal employment relationship.
5.   Mike McQueary, a graduate assistant, reported seeing Sandusky sexually assaulting a boy in the shower room in 2002. From that point the Head Coach and senior university administrators, not just athletic personnel, covered up for decade. While the Freeh report makes clear a cover-up occurred, most of the time no one even bothered to think about it. If the NCAA has a case it exists here in the cover-up and institutional failure.

“Hard cases make bad law” is a basic maxim of American judiciary action. This is a very hard case that could make very bad law.

If the infractions committee or NCAA President acted now, they would appropriate a range of control over over ranges of moral/legal behavior that lie beyond their past competence or mandate. I think they will act simply because the actions are so despicable even if beyond any legal writ. It looks like the actions were “enabled or at least not stopped” in Mark Emmert’s words

The NCAA will act. Paradoxically they will act for the same reasons that drove the cover-up to protect the legitimacy and credibility of the NCAA and out of moral outrage.

The NCAA lawyers will concoct justifications based upon good of the sport or generalized duties of ethics and integrity in athletics. This logic will expand the authority of the NCAA and set huge precedents to regulate new areas.

The NCAA will also act because people fear that that if they don't, no one else will. They cannot rely on Penn State.

This is a school whose idea of restitution is to paint out halos over Paterno’s head and redo their bathrooms!! They finally will take the statue down. Come on! Everyone who can be fired has been, and the Regents should resign and have started but what else do we expect. Sandusky has gone to jail and other will be tried. Penn State will not fall on its sword.

The senior administrators of Penn State and their coach failed to exercise moral integrity and act against immoral and illegal behavior. They worried more about their institution and careers than the victims. This is the crux of the NCAA case of not exercising institutional control over actions occurring by non-university employees that administrators missed and ignored when revealed.

These are real criminal and civil crimes and moral failures. But it is not clear they violate NCAA bylaws.

Let’s assume the NCAA will act with a newly developed warrant asserting new powers and authority based upon moral integrity of institutional systems. Let's assume they act through Presidential action from the Board and bypass the infractions committee. Now let us assume that the program does not have a history of violations or probation that would point to long-term lack of institutional control. Multiple probations also point to an inability or unwillingness to gain control of rogue coaches, rogue agents, rogue players or rogue boosters like. At Penn State no extant history of violations or institutional hostility manifests. However the NCAA acts it must do so in a way that achieves its moral ends but also avoids Penn State litigation that might challenge this extension of power.

NCAA President Mark Emmert point out this is unprecedented and NCAA precedent is not much help. I mean OK, telling a school you can’t go to a bowl game for three years or you lose 25% of your scholarships—these are serious NCAA penalties, yet they feel like a pea-shooters against a whale.

No bowl games? Fewer scholarships?  Versus 35 years of sexual abuse of children under the protective banner or Penn State or ten years of covert denial and cover-up with no remorse?

I know people are screaming for the death penalty, but to what end? The program gained no competitive advantage, violated no major rules, did not abuse student welfare, cheat on exams, not graduate students or play fast and loose with agents. It has no prior history. All the conditions under which the death penalty has been used do not comport. The death penalty would also open the NCAA ups to serious legal challenges which neither it nor Penn State want. 

I want to strongly support another approach that others have floated. Do not use the death penalty. Limit bowls or scholarship reduction if you want, but to act to connect to the moral nature of the crime.

Don’t focus upon retribution. The NCAA should aim for restorative justice.

Take the profits from football for the next five years, or take a high mandated percentage so that other sports will survive. Require Penn State to fund an independent national foundation dedicated to preventative education of child abuse. Put this money to good use. Create a real independent nonprofit foundation and have it dedicated to working with colleges and high school to provide strong education and support to stop this plague.

NCAA action will ultimately rest upon moral claims, not bylaw violations. The NCAA response should be informed by restorative justice, not retribution. Protect future victims from the depredations Penn State fostered.

NCAA versus Presidents as Reform Opposition Mounts

With all the hoopla around signing day behind us, it might be a good opportunity to take a look at the NCAA reform agenda to help their student athletes. The NCAA Presidents blinked at the NCAA convention in a stare down with their membership. The NCAA reform efforts stumbled as predictable but often silent opposition finally showed its ugly face.

Coaches resented higher academic standards and really resent having to give four-year scholarships; less well off schools resented higher costs; many schools resented and feared having to give women higher cost equal scholarships; and athletic directors opposed higher costs, higher penalties and greater demands for accountability. In classic NCAA fashion, they are crying “slow down” and work on “details.” In the NCAA reality, slowing down means killing the reforms. The Presidents need to hold the line.

To understand this Byzantine process, remember the NCAA is a membership organization. All major reforms must ultimately be voted upon by the membership. These reforms focus upon Division I. NCAA President Mark Emmert and the reforming presidents have invoked a fast track method where the Presidential Board can pass legislation directly.

However, the membership has checks and balances. If a certain number of schools sign a petition, this small number can force the presidents to review the legislation. This happened at the last NCAA convention over the permission to allow conferences to permit increased grants in aid to cover cost of attendance and to permit conferences to award four year scholarships.

The Presidents reaffirmed the reform. The second check now allows schools to launch another petition to overthrow the legislation. If appeal gains 20% of the membership’s signatures, a vote to override will come up at the next NCAA convention. Design to permit maximum deliberation, this process has enabled an alliance between less well off football schools and very underfunded basketball only schools to stop change for years.

The Presidents’ reform agenda expands across many areas. The issues of relations with agents and restructuring compliance rules and enforcement lie ahead. But the reforming Presidents focused first upon student welfare. They pushed on increasing incentives for academic success and simple justice for providing athletes the cost of attendance and four year scholarships.

A number of reforms such as limiting schools with low graduation rates from NCAA tournaments and bowls or mandating a year of academic readiness for very at risk students buttress the education and student aspect of college athletes. They are both proceeding to implementation. They may be weakened in details, but surprisingly they are moving ahead.

Why the opposition to actions that would increase justice and academic success? Basically everyone in Division I but the ultra-elite 14-22 schools loses money, lots of money on all sports including football. The chasm between relatively well off football schools of the FBC and the weaker football FCS schools and basketball only schools drive many votes. Huge media contracts with the top conferences exacerbate the inequality. The less well off schools militantly oppose any cost increases. In addition the almost 200 non-football schools often support very small and underfunded programs. They virulently oppose any efforts that would increase costs whether justified by academics or justice. As an example, efforts to require summer school for at risk basketball players were soundly defeated on a class vote. Yet all the information suggested that mandated summer school would increase graduation rates.

The opposing schools claim that increased costs give a decided benefit in recruitment to the already well off conferences. They believe, correctly that the “permissive” legislation to allow schools to pay full cost of attendance will be picked up by most BCS conferences. To their mind this will further put them at a disadvantage. Schools mutter about “stockpiling,” and all fear having to pay the extra costs to the mandated equity of women’s sports.

Honestly, these arguments are disingenuous. Most elite players do and will continue to choose a FBS over a FCS school and a BCS school if possible. These schools already possess better coaching, facilities, competition and exposure. The proposed reforms for four-year scholarships and cost of living might aggravate but will not create this distinction. The “stockpiling” of players already happens, but most modern players will not be stockpiled and quickly transfer.

NCAA President Emmert and the pro-reform Presidents have fought this inertia by speed and aggressive proposals. At the last meeting Mark Emmert argued that this is not about “confrontation.” 

Well it is about confrontation, and only relentless pressure will get anything done. Even the schools who will benefit from these reforms are piling on to clear up the “details.”  The opponents will be back and have a chance next year to vote to overturn it all. But things are changing at the grass roots level. Conferences are already facing parents and athletes who want four-year scholarships and push them toward offering the cost of attendance levels.

Despite the opposition, the reform movement has garnered successes. The denial of tournament entry is sticking. No one had the courage to oppose it, even if they hate it. The public support of the Secretary of Education has helped. Emmert and NCAA staff has moved ahead with modifying penalties and the Enforcement Committee has generally taken its cue from him going after schools aggressively such as the USC and the Ohio State penalties. The higher penalties need to be rationalized but stand as a bulwark long needed.

The “year of academic readiness” for at risk student athletes is making steady progress in implementation. In one of its great unsung successes, the NCAA has steadily increased the level of high school core course preparation required This change has helped higher graduation rates and lead to many better prepared student athletes.

These academic reforms are far more important in the long run for doing justice to the academic promise of student athletics. But still, enough student athletes cannot function at college when they arrive. Yet schools ask these grossly unprepared students to start on their teams immediately, carry a full academic load and not get full cost of attendance.

This whole approach is patently unjust to students and violates the promise of college sports. Many of us would return to freshman ineligibility to remedy this but it won’t happen. However, the plan to let underprepared student athletes have a year of academic readiness is critical. It limits practice time; builds on full time students; prohibits travel and helps underprepared student athletes focus upon becoming viable college students.  Yet unlike past attempts, this approach keeps four years of eligibility. It does not penalize low income or minority athletes like partial qualifiers or Prop 48.

It costs money and it means that many teams will not be able to immediately use freshmen to save themselves especially in basketball. So you get opposition from the predictable sources and a fair degree of worry and confusion, but at least the ADs have enough shame to largely stay quiet. They let it ride and will fight to modify the rules so the minimum number of athletes will have their year of academic readiness.

The membership forced the Presidents to blink. Athletic directors and coaches are hectoring the Presidents at home. More than a few presidents caved to let the schools sign the petition. Now the Presidents have to take control of their athletic directors and coaches.

The membership will continue to balk. This time the Presidents have to tell their athletic directors and coaches to support the reform rather than letting their athletic directors and coaches run the university.

NCAA Reform: Great Start & the Battle Has Just Begun

Last week the NCAA Presidents on the Board of Directors passed some of the most significant athletic reforms in thirty years. The NCAA Presidents confirmed their initial start at their retreat and expanded their work. Prodded by scandals, their own desire to reform and Mark Emmert’s relentless leadership, they acted on four major changes.

The reforms cluster in two related but vital areas. All are designed to improve student welfare and improve student athlete academic performance and they will face stiff resistance from many coaches and athletic directors.

•  They authorized Conferences to permit schools to raise the full grant in aid to student athletes by 2000 dollars over the existing room, board, books and tuition. This attempt to achieve real “cost of attendance” and give student athletes enough money to pay for transportation, snacks, movies and normal living of being a student. This emulates common scholarship offers to top academic students.
• They prohibited school teams who do not graduate their student athletes at a rate of at least fifty percent from participating in NCAA tournaments or NCAA certified bowl games. This technically covers schools that do not achieve what is called an APR of 930. This is an algorithm that measures the rate at which players on a team stay in school and stay eligible. This decision builds on an early decision to raise the minimum APR requirement to 930. The original APR number had accreted so many exceptions that it no longer measured a fifty percent graduation rate. Like all major changes it will have a three to four year vesting period.
•   They put new limits upon the qualifications that student athlete freshman must meet to be eligible. Unlike past attempts to raise qualifications, this does not take away a year of eligibility. The new approach permits a student athlete to keep four years of eligibility but forces them to have restricted practice and devote more time to academics during their first year in college.
• They authorized schools to award grant in aids as four year blocks rather than on a year-to-year basis. This gives schools the option to do this and will put immense pressure upon everyone to do this since if one school does it, it becomes a considerable recruiting advantage.

The first point to remember is that this was not easy. Reformers and faculty have been pushing for cost of attendance for decades. The reforms have been stopped by the death by a thousand cut process of the NCAA and by the virulent opposition of the midrange football schools and many basketball schools who do not want to spend the money and fear it will only reinforce the have and have not world. Basketball coaches will be up in arms over their inability to play freshman immediately under the new academic eligibility rules.

The whole process could still falter. The NCAA is a membership organization and Emmert’s strategy has depended upon using the Presidents and the Board to get things accomplished. This bypasses the paralyzed and cumbersome process that takes 2-3 years and kills most good ideas. If enough membership schools can get a petition, they will seek an override vote. First they can send legislation back to the Board and then seek a full membership vote. Membership votes have  killed many good ideas in the past where the midrange schools and basketball schools ally and stop “expensive” reforms. Already coaches and athletic directors are mobilizing to stop it. It is also where coaches have great sway given their input with athletic directors.

For me the increase in awards are about simple justice. The average elite student athletes now works 20-40 hours a week for nine months a year on their teams. Even in off-season they work on conditioning, tape watching and skill development as well as informal scrimmages. These student athletes have no time to hold outside jobs given their commitment to the team and the implicit conditions of their scholarships.

In addition a high percentage of athletes in the revenue producing football and men’s basketball teams come from poor backgrounds. They have very little money and scrape by with no way to call parents, return home on holidays or spend funds on small things like movies or hanging out with friends. During the breaks between dorms and apartments, they live a precarious life sleeping on the floors of friends or spending holidays with a few caring parents. Another strong hope is that actually giving them enough to live rather than scrape by at penury will lesson the incentive to take small sums of money from agents and runners or sell their paraphernalia for pocket change. This won’t stop all of it but a surprising number of the cases of money from agents or selling paraphernalia involves very small amounts doled out to help students live.

This is not a perfect solution but much better than what we have now. Most of us who have fought for this would much prefer $3200 that is the best estimate we have of the real cost differential.

Quite frankly, all the schools have gotten away with grant in aids that are too low and should have to pay the real cost for their student athletes. These schools have held the NCAA and student athletes hostage for years. This makes strong sense for reasons of justice and fairness to the student athletes. All the BCS conferences will do this and reluctantly the other conferences will follow suite. The nice part about this is that once one conference does it, everyone else will have to do this for competitive reasons. That is what the Presidents and Emmert are relying on.

Coaches and athletic directors hate the next reform that permits schools to award grant in aid for four years subject to meeting basic academic progress. The Presidents insisted on this one, and it is important. Right now all grant in aids are given for one year at a time. The coaches and athletic directors believe four-year grants will lose them leverage over problem players. They will be forced to keep players whom they regard as poisonous or disruptive or ones who do not try and hurt the team.

 

To be honest most schools do their best to make an award a four-year award. First, it is good policy because if you run players off, others will counter recruit against you. Second, most coaches accept that they must be willing to live with their mistakes on talent. If a player brings effort and commitment but may not be as talented or develop as high as coaches hoped, the vast majority of schools live up to the implicit bargain of making a one year grant a four year grant. Most schools, if a player really does not match the school for talent or academics, will help the student athlete find a better fit school and transfer in good standing.

Most schools is not good enough. The real crunch times occur when new coaches come in under pressure to win fast and want their kids to match their system. It also happens when a sitting coach is under pressure and needs to win quickly and wants to change their talent level. It is not unusual for such coaches to try and run student athletes off or use informal and even abusive tactics to get students to leave. The Presidents are clearly aware of these dangers and cases like South Carolina make it clear that given the pressure coaches are under, these abuses could continue. Even though I believe most schools treat these boundary carefully and do not abuse it; enough examples exist to make what the Presidents do make sense.

The Presidents also believe that the much larger financial commitment of a four year award—200,000+ at a private or 120,000 for out of state public—will help silence critics who claim schools exploit student athletes with limited return. This is the Presidents voting no confidence in their athletic administrators and coaches. Expect athletic directors and coaches to fight a guerilla war on this on a school-by-school and case-by case-basis.

The last reforms pump up the APR and culminate a decade long growth in reform that began with Myles Brand and the Presidents. The press rigidly ignores the steady increase in graduation rates among student athletes over the last decade. They also ignore the success in the most at risk and money driven teams of men’s basketball and football. Even the rates of minority graduation have gone up.

The key driver to all this has been the APR rate. This rate monitors retention, staying eligible and meeting required benchmarks. Fear of losing scholarships and worse drives this success. If a team or school does not graduate their athletes at a fifty percent rate as predicted by the APR, they lost scholarships and access to NCAA championships.

This changes everything. Suddenly the coaches’ self interest aligns with academic performance. Coaching jobs depend upon talent on the field. This depends upon recruiting and if they lose scholarships, they lose competitive advantage.

For those who work in the trenches of academic support, the transformation has been amazing. Now coaches willingly meet weekly with athletic support to follow each student’s progress. When coaches evince intense focus on academics student athletes pay attention in a way they never could quite take from the blandishments of academic support staff.

Now the Presidents have upped the ante again. After a four year phase in which makes perfect sense given how hard it will be to change behavior, failed APR teams will not get to the tournaments or bowls. The entire post-season world changes.

This may matter most for the basketball schools that already graduate a paltry number of minority athletes. They, however, depend heavily upon post-season participation in the NCAA tournament and March Madness. Being in the tournament brings them the visibility and stature they crave.

The overwhelming purpose for most schools to invest in sports at this level pays off through the tournament or going to a bowl. Now academic failure immediately eliminates the raison d’être of the team. This change amplifies and powers up the pressure to get academic achievement not just from coaches but to push schools to invest in the level of academic support athletes need. If it really works, it will drive schools to invest more money in academic support to help their underprepared athletes become real college student athletes.

This brings us to the last reform and a very vital one. Most elite football and basketball programs bring in a number of superb athletes who are not academically or culturally prepared for college. Not that they cannot succeed at college but for reasons of situation and talent, they are far behind their compatriots in academic preparation and socialization. They enter college very underprepared often at reading and math levels in the mid or high grade school level. With intense support and commitment, these underprepared student athletes can develop into qualified students, but it takes time.

To be blunt, bringing in an underprepared student athlete who identifies as an athlete not a student and is asked to practice 40 hours a week and compete in a full season and then be a student is too much. Given several lost lawsuits, the NCAA has been paralyzed about raising academic aptitude standards around SAT and ACT tests. They rely heavily upon grade point average that can be a very powerful indicator but often distorts real level given the uneven quality of high schools.

For fifteen years the NCAA has moved to increase the requirements at the high school level to increase student athlete preparation. It has helped slowly but steadily. But it is not enough and too many underprepared and “at risk” student athletes come in and are overwhelmed trying to compete in the first year as students and athletes. This is especially the case in basketball where teams rely heavily upon freshmen.

This new rule, which will depend heavily upon the exact standards set, now permits seriously at risk student athletes to enter college and keep four years of eligibility. But it limits their practice time and will not let them compete there first year. It represents a modified return to freshman ineligibility that no one can afford but most coaches and faculty would love to see returned.

This year of “academic readiness” hopefully will help acclimate the young players who most need it to the culture shock of attending college and learn to be a college student. It gives them a respite to learn to be a student and preserves their future as athletes. But expect huge push back on this. The basketball only schools will be incensed that they actually have to educate their players and many elite coaches who live off of one and done players will oppose this. For basketball more than any other sport, freshman players provide quick fixes and the coaches will be loathe to give this up. They will lobby their athletic directors and Presidents to nullify this rule. 

If done right, it can also address another embarrassment, the one and out basketball players. Most incoming highly recruited basketball players who plan to be one and done are not academic balls of fire. The hope here is that if they are not academically prepared and know they will have to sit a year, they will forgo college and go right to the pros or Europe, but not come to college to sit for a year. It also means that coaches will have to think hard before they go this route and also push student athletes harder to get a better high school preparation.

This is the second installment; a lot more needs to be done. The athletic directors and coaches will fight back one rule at a time, and the Presidents have to stay involved at the campus level. The moral cesspools of recruiting and agents still remains, but in six months the Presidents and Mark Emmert have broken a twenty-year logjam. It is a good start but the effort cannot slack. .

Membership of the NCAA Board

Division	Committee Positions	Title	Name & Institution	Conference	Term Expiration
FBS	Member	President	Harris Pastides   University of South Carolina, Columbia	Southeastern Conference	APR 2015
FBS	Member	President	John G. Peters   Northern Illinois University	Mid-American Conference	APR 2013
FBS	Member	President	Lou Anna Simon   Michigan State University	Big Ten Conference	APR 2014
FBS	Member	President	Nathan O. Hatch   Wake Forest University	Atlantic Coast Conference	APR 2014
FBS	Member	President	Sidney McPhee   Middle Tennessee State University	Sun Belt Conference	APR 2014
FBS	Member	President	Stan L. Albrecht   Utah State University	Western Athletic Conference	APR 2014
FBS	Member	President, President	David Schmidly   University of New Mexico	Mountain West Conference	APR 2012
FBS	Member	President, President	Edward Ray   Oregon State University	Pac-12 Conference	APR 2012
FBS	Member	President, President	Guy H. Bailey   Texas Tech University	Big 12 Conference	APR 2014
FBS	Chair	President, President	Judy Genshaft   University of South Florida	Big East Conference	APR 2013
FBS	Member	President, President	Steadman Upham   University of Tulsa	Conference USA	APR 2014
FCS	Member	President	David J. Skorton   Cornell University	The Ivy League	APR 2015
FCS	Member	President	F. Ann Millner   Weber State University	Big Sky Conference	APR 2012
FCS	Member	President	William R. Harvey   Hampton University	Mid-Eastern Athletic Conf.	APR 2013
FCS	Member	President, President	William A. Meehan   Jacksonville State University	Ohio Valley Conference	APR 2013
DI	Member	Chancellor	Timothy P. White   University of California, Riverside	Big West Conference	APR 2015
DI	Member	President	E. William Beauchamp, C.S.C   University of Portland	West Coast Conference	APR 2012
DI	Member	President, President	David R. Hopkins   Wright State University	Horizon League	APR 2015

The NCAA Presidents Stage a Governance Coup

The NCAA retreat of last week created immediate results and serious momentum towards major reforms. Most commentators have been pleasantly surprised or astounding by the progress made. I want to highlight one very important aspect—the NCAA Presidents staged a coup in the NCAA governance structure.

I agree with their decision and use the word “coup” specifically. Their actions bypass the existing elaborate governance structure to achieve immediate action. I want to emphasize their actions are totally within the constitution of the NCAA; but their approach reflects a lack of confidence in the existing governance structure.

Larry Scott the Commissioner of the Pac 10/12 stated it well; the NCAA governance structure creates “death by incrementalism.” As one who has participated in the structure, I agree. Often this is not a bad thing because bad ideas can fail and good ideas refined, but the process does not foster quick response or serious reform.

The NCAA is a member organization. 1400+ members participate at has three levels—Division I, II and III, and each level has its own voting procedures and laws. NCAA legislation and initiatives pass through a Byzantine system. Most legislation begins with schools or conferences and proceeds to subject area Cabinets where each conference is represented. Cabinet business proceeds at a very very slow rate. Each conference, each division has its own concerns and these tend to slow down and often halt progress on major issues.

Because of adverse court decisions, the NCAA is wedded to proceeding only where it has clear data suggesting that new policies are supported by data; this slows things down  even more and creates a huge and powerful knowledge bureaucracy. Finally even after the Cabinets deliberate, often for two to three years and carefully cull data, the proposed legislation goes out to all the conferences for comments, then it goes to the Legislative Council for refinement and often is sent back out to the collective body for further refinement and voting. Finally, the legislation goes out for a vote to the entire membership.

This process takes two to four years and discourages significant change. Death by a thousand cuts normally occurs.

I have worked for three years on pieces of legislation that go through endless vetting only to see it defeated and this is not uncommon. The process also invites immense focus upon picayuane issues such as the size of letters sent recruits.

However another avenue exists where the Board of Directors made of Presidents from each conference can pass directly pass. This is normally reserved for issues requiring immediate attention and seldom used. But even then, the Board decsions can be blocked by an override process where a limited number of schools can petition to have the legislation revisited. In the last three years the Board of Directors has passed good reform legislation only to have it stopped by override votes.

Past NCAA President Myles Brand grew to distrust the system and grew very impatient. His solution had been to create outside ad hoc committees populated by some Presidents, Athletic Directors, Senior Athletic Directors, as many relevant coach groups as possible and one or two faculty. These groups met and generated legislative packages that went directly to the Board of Directors after a pro-forma review by the system. In the case of Baseball and Football reform, it lead to significant and good changes, in the case of basketball, the committee results were DOA. This process got results but generated a lot of resistance and resentment from the 1400 member institutions and especially the 350+ 1A basketball and football members.

The organization has faced this dilemma for years. Glacial and unsatisfactory process creates reactive legislation loaded with nuance and minutia.

President Emmert is risking a different model. He has used this window of opportunity and near universal dissatisfaction with the NCAA as a chance to move the Presidents forward. The retreat tested Presidential support and courage, built some consensus. The immediate passage the APR legislation resembled a blood pact to stay together. Immense covert and overt opposition from many athletic directors and have not schools will oppose good reforms that cost money. To make this work the Presidents have to stay together and they have to ride herd on their athletic directors.

NCAA President Mark Emmert and the Board convinced the Presidents to take control and act now and quickly. A few short time line committees are charged to generate specific legislation on very fast time lines.

To announce their seriousness and will, he Board of Directors passed unanimously and proudly new APR limits that will prohibit teams that do not meet APR minimum—an APR of 930 projects to a 50 percent graduation rate—from going to NCAA championships or NCAA certified bowl games. This matters affects every team and every championship.

This is a great piece of legislation. It never would have passed through the cumbersome cabinet, review, and Legislative Council process. The legislation also severely limits appeals, another bane of the NCAA that draws out the endless processes. In addition, the Presidents struck a blow for sanity and against ESPN and Texas by prohibiting university affiliated sports stations from televising high school games.

The Presidents have asserted control of the organization. By law and constitution, they have this right. In less troubled times, the endless complexifying process may be barely tolerable, but it makes significant and timely reform impossible.

The biggest untold story here is that the Presidents have declared their control. The reforms are the byproduct of this and will only work if the Presidents stay together.

The Business of College Sports versus Student Athletes

“The business of college athletics”  describes how athletic directors and college Presidents refer to the college athletic enterprise. Entire programs and degrees are now dedicated to the business model of sports. My conference, the Pacific 12, one of the few conferences left that can actually count its actual membership, just signed a massive multi-media deal that can be worth 3 billion dollars over the next 12 years. Yes 3 billion dollars! The sheer amount of money involved certainly points to the word business. I distrust the phrase and remember a conversation with Mark Emmert of the NCAA when he talked about how much he dislikes and worries about it when athletic directors talk about "the business" of college athletics. We worry because the business model undervalues education ans students.

Language matters; it sinks in and shapes how we think about and perceive reality. The mania about "paying athletes" is driven not only by ignorance of the economic realities of sports and by the ignorance of what student athlete life is actually like, but by the belief that players are employees of large corporations who are exploited them. “Paying” athletes only makes sense if  business explains and justified the enterprise.

The metaphor and concepts have sunk deep into the consciousness of college sports. For one, college sports is expensive and in this time of budget cuts, programs are being pushed to generate revenue streams and minimize the internal subsidy that central university funds must provide for them. Any athletic director worth his or her salt is obsessed with generating maximum revenue and as they will tell you in business speak, to garner revenue, they must "deliver a good product" or provide "a great customer experience at the games."

The average elite college program employs more marketing and fund raising and ticket folks than non-football coaches. Schools redesign mascots to raise revenue streams from paraphernalia and do focus groups to create children's mascots that might not scare kids. Tradition, community and identity matter far less than consultants and TV and T-shirt friendly logos.

Remember the colleges themselves push this model when they demand that athletic programs become economically self-sufficient. This drives the fund raising; this drives the demand for stadiums; this drives the obsession with recruiting to get winning teams. Winning teams "fill the stands" and generate demand for "eyeballs" for television windows. It also drives much of the dynamic behind expansion or movement among conferences as conferences seek to lock up markets and geographic areas or "trophy" teams that draw national attention.

So athletic directors goaded by Presidents and Boards of Regents and local pride and fund raising and marketing imperatives push coaches to put "great product" on the field to deliver bodies and eyeballs.  I witnessed an athletic director fire a coach who had just returned from the NCAA's for the fifth time in seven years and graduated all her players for seven years. Why? The AD wanted more "sizzle" and a more "entertaining" brand of sports. Winning is not enough, coaches must win and entertain.

The real problem with this set of metaphors and language lies in what it does to student athletes. First, the "business" model has no room for students; the business model downgrades the mission of education. The ideal of a student becomes a "transaction" cost of winning. Schools need to keep the athletes in school and eligible, but only for the purpose of winning to generate revenue.

Second, the business model not only degrades the student ideal and reality, it transforms the student-athlete’s life. Students spend thirty hours a week on athletics when not in season. Second seasons flourish and 40,000 people fill spring football stadiums for intra-squad scrimmages. Athletic demands now fill their entire year and studying is devalued even as it is marketed and trumpeted.

Third, the business model transforms student athletes into commodities. The athletes and their teams are products produced to generate revenue. In most elite programs the football and basketball programs consume everyone’s time and focus because they generate the revenue; the Olympic sports become an afterthought or the only place where the ideal of student athletes can still exist. Student athletes reduce to commodities produced and marketed and sold to generate revenue and reputation and visibility for the university. No wonder some elite athletes in revenue sport mutter about being paid leaving aside the rather good life they have. No wonder these athletes wonder why the continued use of their likeness after they graduate should be the “property” of the school.

But this is the point, isn't it. College sports should be about student athletes, it should have student athlete welfare at its moral core. The ideal of college athletics and the reality for the vast majority of college student athletes, including the 99 percent of elite football and basketball athletes, who will not be professional athletes, should celebrate and attend to their achievement, welfare, teams, health and competition.

If you go to banquets of college teams, you experience this reality, not the business outcomes. Win or lose, the players remember and celebrate each other, "I luv you guys" gets repeated by men and women's teams. They give awards to each other and coaches tell stories of victory and defeat and honor the young men and women. The good teams celebrate the students who will graduate. The parents and students cry remembering that college athletes are students, not commodities.

"Pay the Players" Misses it All

NCAA President Mark Emmert made emphatically clear that he categorically rejects the claim that college athletes should be "paid." "Student athletes will never be paid as long as I am President of the NCAA." He is absolutely right.

Football announcers and sports commentators often  complain that college athletes should be paid to play. Usually this is done in the context of watching some full stadium of D1A elite schools and muttering about all the "profit" from the games. The idea might come up expressed as an the illusory wish that somehow paying players would eliminate the scandals surrounding agents. The idea possesses a sort of populist sense and makes good press, but it makes no sense.

This idea is based upon profound misunderstanding of the nature of college sports and the nature of college economic realities. I think we would all be better off if we realize that college athletics is about investment in people, not paying players.

You have to start from a baseline. Where would the young players be if college sport did not exist. The vast vast majority of them, 95 percent, would not be playing sport, and many of them would not be in college. In fact women's athletics would not exist at all since it involves almost universal structural deficits of between 4-10 million dollars. So athletes in all sports but a few basketball and football programs play on money losing teams--the revenue generated does not cover the costs.

In a true life baseline, a trace element of teenage athletes might be playing pro sports or participating in professional tracks like in Europe. So none of the arguments make any sense until you calibrate the baseline. Without college sport, the players would not be playing, would not be in college, would not be getting an education. This is the default for the vast majority of the 400,000 NCAA athletes.

Now we can think about what it might mean to "pay the players."

The "profits" don't exist. Only two college sport categories ever make any money--men's basketball and football. The money comes from TV exposures and not the revenue generated by seats. The rest of college sport teams lose money at tremendous rates. In fact, 98 percent of college football teams lose money and do not cover the basic expenses. Well over 94 percent of college men's basketball teams also lose money. With the rare exception of about maybe 20 programs, the revenue generated by by college football and basketball games never cover costs. What money is left over almost always goes to funding other money losing sports like soccer, swimming, volleyball, water polo, lacrosse, the list goes on. They all are subsidized by either football revenue (rarely) but mainly by fundraising and internal transfers or student fees.


Second, the commentators pontificate  as if the athletes are not receiving anything in return for playing. This is rubbish. At the moral core of college athletics, the athletes  are playing a sport they enjoy and love. Unlike the vast majority of the young men and women around the world who must give up the sports at age 15, college student athletes still play and pursue their passions. A microscopic few might have brief careers in the pros, but for the 1400 schools in the NCAA and the approximately 140 D1A football schools, this is the last time the young men and women will play in a supported organized way. Most of them play from passion and love.  Playing on an supported team provides the students with community of fellow team members who create a support group that so many young college students do not possess in the mega-universities of today. The cultural critics and media commentators miss all this because they don't know the students.


Along with pursuing their passion, the young men and women gain a college education. Here is the crux of the whole issue. Education matters. They provide a huge benefit; the scholarships cover the cost of education or enable a student to get into a school he or she may not have been able to attend without athletics. This investment can range from 12,000 to 50,000 per year upfront. Being in college and afterwards  college education can improve the quality of a person's life.

This means that colleges must make sure student athletes get educated, not just eligible. But a college education can furnish immense economic, personal and social value. It's tells you alot about those who make money off and comment on college sport that they forget that the athletes are actually going to class, or they have grown so cynical that they believe the schools are pretending to educate the athletes stuffing them in remedial classes and useless majors. This group of commentators  fixates on following ultra elite  football or basketball and ignore all the other sports where most athletes live and play----an average college degree increases lifetime earnings by a million dollars right now.

Along with the satisfaction of continuing their passion and getting an education for the future, student athletes receive immense support while  in school. The university provides trainers, medical care, conditioning and facilities to support their growth. The student athletes often have academic support that  helps ensure that the education has real value given their immense workloads.

These support systems do not come cheap. Infrastructure costs for facilities, people and the ancillary media, marketing and support groups as well as fund raisers create a high but not absurd overhead for the units.  Despite their absurd levels in football, coaching costs have remained constant at around 18 percent of costs as have administrative costs. Since the programs are all nonprofit and associated with education, what "profits" exist must be reinvested, even if too often in football salaries.

Aside from the glamorous few in the top very rich programs, 98 percent of schools lose money on football but provide an arena for athletes to pursue excellence and passion past a time when most of them would have that opportunity. They make available an education that has immense personal and economic values for those students to take advantage of.

The gut reality is that the average cost invested in any student athlete at a major college is over 78,000 dollars per year. With the exception of maybe 14 teams, all college sports lose money. Providing women's teams involves structural deficits of 4  to 10 million per year. All men's teams with rare exceptions in football and basketball lose money. Most football programs and basketball programs lose money. So the "profit" or "surplus" does not exist except for a very few ultra elite programs.

The one area where the athletic issue of being paid makes strong sense, as Emmert mentioned, is to raise the reimbursement permitted for college athletes to cost of attendance. Right now scholarship calculations cover focus on books, tuition and meals, but has no room for actual living expenses. The formulas systematically underestimate the real live cost of attendance. A number of groups are pushing the NCAA to mandate this as the baseline for scholarships, but  face immense resistance from programs. The poorer programs especially resist this as making it further difficult to complete since they barely survive and must subsidize their programs with student fees, transfers and fund raising as it is. The NCAA should change here because student welfare demands it.

The next time you hear the claim "pay the players," remember this is not about pay, it is about investment and life.