NCAA Miami Problems Show Need for Federal Takeover

federal government take over the ncaaThere’s an old saying that once is happenstance, twice is coincidence, three times is a trend. When information about the Shabazz Muhammad Investigation slipped out through an investigator’s boyfriend, that could be written off as one of those things that just happen. Not even CIA agents keep everything from their spouses. And the information coming out of the Todd McNair defamation case increasingly suggests the NCAA targeted the former USC assistant and went above and beyond NCAA procedures to hang the case on him. But that was the USC case, always an outlier in recent NCAA history.

Now with the Miami investigation compromised by NCAA investigators improperly obtaining subpoena power, it is hard to not come to the conclusion that something is seriously amiss in the NCAA’s enforcement program. And to their credit, the NCAA appears to be taking this problem equally seriously. A public admission and immediate external review is as much as anyone could hope the NCAA would do if an investigation is done improperly.

The trouble is that a solution to this problem seems hard to find. The members of the NCAA have no desire to get rid of rules like amateurism or academic standards that lead to cheating which needs to be investigated and punished. The common thread linking Todd McNair, Shabazz Muhammad and Miami is intense public pressure to punish cheaters who have already been convicted in the court of public opinion. That pressure could undermine the effectiveness of measures to keep investigators in check, like farming investigations out to a third party or the creation of an “internal affairs” unit that investigates the investigators. You would just have a similar cycle of cheating, getting caught, cleaning things up, then cheating again.

We can assume a few things. First, colleges do not look willing to change some of the NCAA’s basic rules. Second, the NCAA cannot, as a private entity with lower due process requirements, be handed a general subpoena power. Third, the NCAA’s enforcement program will only ever be as strict and as well-funded as the members want it. And fourth, there are some fundamental rules about regulatory agencies that you cannot change.

Given these assumptions, there is really only one organization that can enforce the NCAA’s rules substantially better than the NCAA. There is also only one organization that can force institutions to go along with an expanded enforcement program. Luckily, it is the same organization: the federal government.

The biggest impediment to the federal government seizing control of the NCAA’s regulatory function is the Ted Stevens Amateur Sports Act, particularly this section on “restricted amateur athletic competition”:

§220526. Restricted amateur athletic competitions

(a) EXCLUSIVE JURISDICTION. —An amateur sports organization that conducts amateur athletic competition shall have exclusive jurisdiction over that competition if participation is restricted to a specific class of amateur athletes, such as high school students, college students, members of the Armed Forces, or similar groups or categories.

This is the bit of federal law which grants the NCAA, rather than the US Olympic Committee or the federal government, the jurisdiction to regulate college athletics. This section would need to removed or amended.

From there, Congress could, under its power to regulate interstate commerce, create a federal agency to regulate college athletics. For now, we will call that agency the Federal College Athletics Bureau and place it under the Department of Education. That agency would be charged with empowered to make rules and regulations governing college athletics competition and to enforce those rules. It could be funded through a tax on the revenue of college athletic departments, conferences, and associations, fees collected, or even through the general revenue of the United States.

The final step is to force universities to comply with the rules and decisions of the FCAB. That is actually rather simple: make it a requirement to receive federal student aid. Federal funding for education is already the carrot and stick used to force compliance with Title IX and the Clery Act. Congress could also steal an idea from the state of California’s student-athletes rights legislation and only require universities with athletics revenue and/or spending above a certain amount to be regulated by the FCAB.

Under this plan, the FCAB would handle the NCAA’s regulatory functions including investigating violations, punishing cheaters, granting waivers, and operating the Eligibility Center. NCAA members could still have a say in rule making as well, by appointing a Board of Directors, similar to the Board of Directors of each branch of the Federal Reserve. The NCAA would be left to run championships and distribute revenue (which would be taxed at some point to pay for the FCAB).

The pitfalls of a federal takeover of the regulation of college athletics are clear. College football and basketball become a political football, with FCAB funding possibly used as bargaining chip. It makes explicit the difficulty of public sector workers trying to investigate and regulate a richer and potentially more sophisticated private sector. And there’s always the possibility of an already bloated NCAA bureaucracy growing even more as a part of the federal government.

But the benefits are just as evident. The regulators of college athletics would have subpoena power, but would also be bound by a higher set of due process standards. The conflicts of interest would be lessened, with fewer decisions being made by the same people who will be affected by those decisions. A federal agency could also compel the things the NCAA is only prepared to permit, like better medical care, more food, and larger scholarships.

The NCAA is left to do what it does best: run championships, as well as regulate Divisions II and III, which would more or less be excluded from regulation by the FCAB. Division I institutions not willing or able to abide by FCAB regulations would need to drop down and cut spending. Smaller schools that become successful would be forced to make a more considered decision about jumping up to Division I.

The only unknown would be to what extent the FCAB could be evaded. Much like questions about Title IX, could universities avoid regulation by licensing their name and logo and renting facilities to a minor league team of players that happen to be students? But if that minor league no longer enforces amateurism, is there really a problem if it is not governed by this agency?

Part of the problem in thinking about how the NCAA can solve its issues in enforcement is the assumption that the NCAA is and must remain a private, voluntary organization. Many people, including at one time four Supreme Court justices took the other view, that the NCAA is performing a government function and should be treated like an arm of the government. If that is the case, the best move is to simply make the regulatory part of the NCAA part of the government.

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Posted on by John Infante
This entry was posted in Bylaw Blog, Bylaws, NCAA Investigations. Bookmark the permalink.

10 Responses to NCAA Miami Problems Show Need for Federal Takeover

  1. DrWolfVet says:

    Yeah cause the federal government does a great job with everything else they’re in charge of, need to spend more money on another agency, and more government to babysit us is exactly what most americans want. Give me a break.

  2. Publius says:

    I disagree for several reasons, some of which you identify. First, the political entanglements would inevitably lead to corruption on a potentially massive scale; imagine allegations that President Obama intervened in Penn State’s sanctions to appeal to swing state voters, etc.? Imagine Alabama senators vote-trading to get investigators to look the other way from Auburn? Or Kentucky fans “punishing” a Congressman for failing to get a favorable NCAA ruling on a recruit? What if the NCAA took on new enforcement priorities that clearly went against the will of the members and SAs, just to show a politician was “doing something” about a problem? It would never end. Second, converting NCAA action to federal action would mean that every enforcement decision, perhaps even very minor ones, would be loaded up with constitutionally required due process, and ensuing litigation. Third, there is no reason to believe a gaggle of federal civil service workers would be more ethical or efficient than the current NCAA.
    As a practical matter, the chances of this happening politically are slim. The public universities don’t want to hand over their influence, and the politicians probably don’t want to have to take on another set of constituent headaches that could prove disastrous politically. A sustained effort by the member schools for a reformed NCAA is a better move.

  3. Rob says:

    lol, just no, Gov’t does not belong in sports, they have a hard enough time dealing with their own crap

  4. Norman Gunther says:

    The NCAA needs to practice the integrity they expect from the schools.

  5. CommonSense says:

    John, your third point: Third, the NCAA’s enforcement program will only ever be as strict and as well-funded as the members want it.
    Has a timely rebuttal and response. The “NCAA” could gain a windfall of $500+ million dollars annually, if they took over the new football Playoffs (as they do the NCAA BBall tourney), if they wanted.
    $500+ million dollars a year, could fund, staff, and operate a robust compliance office on the staff of every single Division-1 institution; thereby making the compliance office accountable, reportable, and answerable to the NCAA, not themselves (see Learfield and IMG as examples of how this exact set-up is currently implemented within collegiately athletic departments).
    An entire compliance office on every campus operating without the conflict of interest to “self-report” (a premise fundamentally flawed on many levels), would do wonders for the NCAA’s entire compliance and enforcement programs, and take those positions off the books for Athletic Directors to staff and fund and “keep-up” with as their programs grow.

    Instead of distributing this Playoff money to institutions to do with as they “see fit” maybe the NCAA should step up and use the money to fund and staff the compliance offices they already rely on.

  6. Truth_is_Out_There says:

    How funny, USC is the outlier. Please explain. Shouldn’t USC be the precedent? In particular, since Paul Dee, the Athletic Director of Miami during two major cheating scandals, chaired USC’s COI, shouldn’t it be imperative that Miami be held to at least the same standard, if not more stringent ones.
    Remind me, why did Paul Dee keep open the USC investigation for 4.5 years? Wasn’t he waiting for sworn testimony by someone in a civil case?
    In any event, please explain how USC is the outlier, and it is okay to just say that in a passing nature. For anyone who has examined the situation remotely closely, it is clear that the NCAA was not looking for truth or justice. This was an abuse of discretion of one of the highest orders.
    Release the McNair files! Let’s read all about the corrupt organization.

    • maestrovoci says:

      Open-minded sports fans of collegiate football will be shocked to read what is in those sequestered emails in the NCAA vs. Todd McNair file, Sooner or later, those emails and other documents will be made public, and national perception of the University of Southern California and Reggie Bush will have to change. Meanwhile, 30 young men will have been deprived of a fine college education and degree due to the mean-spirited sanctions levied against USC by Paul Dee (may he stink forever), who was the Athletic Director of the University of Miami, where actual corruption flourished over several years. NCAA must go pertaining to college football, to be replaced by four 16-team super conferences of Division I schools. But for pity sake, keep the federal government out other than to strip NCAA of its nonprofit status, which it has so clearly abused.

  7. LA Liberty says:

    Yes, because the federal government is free from corruption and ineptitude.

    This isn’t just a horrible idea, it’s incredibly stupid and naive.

    The solution is not more centralization, it is less.

  8. Terry Wynn says:

    Mr.Infante,

    I have long read your blog and respect your expertise. However, you come from a career of treating NCAA regulations as pseudo-laws. I therefore both think this would never happen and would be a bad thing, even worse than the present NCAA.

    It would be different though. Federal prosecution means federal authoring of the regulations. It means due process for the students, including (probably) fifth amendment protections. Although regulatory administrative law has different restrictions than criminal law, it would be interesting.

    However the real power in College Football is in the Conferences, and they would not stand for it. As it is now, the Conferences have the power and the money, and sluffed the responsibility and the PR hit onto the NCAA. With Federal Regulation would come a great loss of that Conference Power.

    What the public both wants, and truly expects, is a League for D1 College Athletics. The NCAA has been able to avoid much of the responsibility of a league, while the Conferences and the NCAA have kept much of the power.

    With a FBAC would come a Federal League, doing normal league functions, such as scheduling, regulatory authoring and compliance, standardized rules, incoming player drafts, level playing fields, PED testing, collusion, et al.

    Remember that a coach in the NFL can’t go from one team to another during a contract, because the NFL is a league.

    Remember that a League will have great pressure to Unionize the players. Won’t that be fun?

    Remember that a League will want to create a level playing field, so an incoming player draft will be instituted. What happens when Eastern Michigan has as many first round picks as Michigan?

    Remember that a League makes balanced schedules, or at least as balanced as can be with 12 games.

    Remember that a League is the Producer of Playoffs, Championships, and Exhibition Games.

    Almost all sports fans think the NCAA or it’s replacement should be the NFL for College. You know and I know it is far from it. However, since the NCAA allowed that misconception to take root, they will not be able to resist the creation of an actual League, once they cede regulatory inforcement to someone else.

    Regulatory enforcement is actually the only job the NCAA actually DOES for College Football. All other sports are inconsequential. March Madness is only an NCAA production at the largesse of the BCS. Giving away Regulatory Enforcement means that they should close their doors.

    Which is actually what I think should happen. Then maybe an organization which IS a league could result.

  9. dwlion says:

    I believe many of the political and funding issues could be resolved by setting this up as a quasi-federal agency (corporation) similar to the FDIC. The FDIC is funded by premiums paid for by banks and thrifts. Similarly, member universities would pay for the “Federal Collegiate Sports Corp” – that could be set up relative to the size of the athletic program and regulated to prevent taxpayer dollars to be used. There are no politically appointed positions in the FDIC either.

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