There’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.