the BigAmateurism monologues

In this episode, I offer some closing thoughts on Coach K’s last game in Cameron Indoor Stadium and then return to the byzantine world of the business of college sports.

The entire NCAA bureaucracy, notably its infractions and enforcement processes, is funded by the Division I men’s basketball tournament (March Madness). An elite core of black basketball players is the lifeblood of the tournament. Without these world-class athletes, March Madness would have little commercial value. The NCAA takes billions of dollars generated by these black athletes and diverts it to downstream stakeholder-beneficiaries who are overwhelmingly white and comparatively well-off. This episode analyzes the true value of these high-value men’s basketball players and highlights the unconscionable, regressive diversion of wealth upon which the entire college sports business model rests. These are the very athletes that are now in the crosshairs of the NCAA infractions and enforcement process.

On April 8, 2020, NC State responded to Carol Cartwright’s February 14, 2020, referral letter. NC State’s response—presented by three prominent national law firms and distinguished individual advocates—lays the foundation for a potential legal challenge to the NCAA’s conduct in its infractions and enforcement case. The response points out the egregious procedural irregularities in the NCAA’s handling of the case and the entire Independent Accountability Resolution Process (IARP). According to NC State, that process bears little resemblance to the recommendations of the Commission on College Basketball from which the IARP originated. As NC State accurately argues, the “new” the NCAA infused into the IARP the very conflicts of interest and NCAA insider influence that the CCB’s recommendations tried to mitigate. NC State also makes a compelling case that it fully cooperated in all aspects of the investigation into the allegations giving rise to the criminal case in the Southern District of New York. NC State cooperated with federal prosecutors, the court, and the NCAA (including its enforcement staff and outside lawyers). NC State’s Senior Associate Athletics Director for Compliance was a star witness for the prosecution in the SDNY criminal case and testified to NC State’s “extensive systems that are in place to detect, deter, and report NCAA violations.” NC State’s portrayal of its cooperation with all aspects of the criminal case flies in the face of Cartwright’s claims in her referral letter that NC State’s conduct in the infractions and enforcement process amounted to “adversarial posturing.” This episode analyzes NC State’s response memo in the context of the changed circumstances in college between April 2020 and the Independent Resolution Panel’s hearing just last month. In those sixteen months, the world of college sports changed forever. The hearing panel’s decision may provide a window into how the NCAA has absorbed these fundamental changes and the extent to which it stands by its conceptualization of amateurism—the primary principle upon which the entire infractions and enforcement apparatus rests.

NCAA Bylaw 19.01.3 (Public Disclosure) prohibits the public disclosure of infractions and enforcement information. This prohibition applies to both the NCAA and those the subject of an NCAA investigation. In May and June of 2019¬—before the NCAA served Notices of Allegations on NC State and former NC State basketball coach Mark Gottfried on July 9, 2019—NCAA national office executives made public comments to ESPN and CBS Sports about the basketball-related cases. These comments were infused with bias and prejudgment. After the NCAA sent out the NOAs on July 9, Gottfried’s attorney publicly questioned the NCAA’s interpretation of its new Importation Rule, and NC State released investigative materials in response to a public records request. These public disclosures were the subject of two referral criteria: “Actual or Perceived Misconduct by the Involved Parties” and “Breaches of Confidentiality.” Cartwright defended the NCAA’s public comments as appropriate without referencing or citing Bylaw 19.01.3. However, for NC State and Gottfried, the NCAA specifically cited Bylaw 19.01.3 and alleged violations of that bylaw. This episode discusses the remainder of Cartwright’s referral letter and the NCAA’s obsession with its public image under Mark Emmert’s leadership.

On February 14, 2020, Carol Cartwright referred the NC State infractions and enforcement case from the old Committee on Infractions to the new Independent Accountability Resolution Process (IARP). The IARP was the product of the Commission on College Basketball’s (CCB) recommendation that “high stakes” cases such as NC State should be removed from the old “broken” system and adjudicated by truly independent decision-makers. The referral occurred after the entire case was adjudicated through the old process. The IARP was excluded from the process up to the time of referral. As Cartwright herself repeatedly emphasizes in her referral letter, the NCAA formed the IARP to investigate and adjudicate this very type of case. Cartwright’s justification for the timing of the referral doesn’t pass the blush test. She accused NC State of “adversarial posturing” when it disagreed with the NCAA’s interpretation and application of a newly acquired, powerful adjudicatory tool (“Importation of Facts”) used for the first time in an NCAA infractions case. The circumstances of the referral resulted in NC State losing substantial due process rights. Ironically, Cartwright’s combative tone and prejudgment of the case are textbook examples of “adversarial posturing.”

To understand the dysfunction in intercollegiate athletics, it is important to understand the way in-system stakeholders/ beneficiaries think about the relationship between revenue-producing sports and higher education. This is particularly true for university presidents who have primary responsibility for the conduct and control of intercollegiate athletics. This episode discusses the irreconcilable tension between the value systems of many university presidents—including Carol Cartwright— and the realities of the big-time college sports marketplace. Cartwright’s February 14, 2020, referral letter in the NC State infractions and enforcement case exemplifies the hypocrisy in university presidents’ quixotic quest for “academic integrity” in the relationship between the academy and big-time college sports. In 1991, the Knight Commission on Intercollegiate Athletics recommended presidential control of, and responsibility for, college sports as the magic bullet to preserve the “integrity” of higher education. As a prelude to analyzing Cartwright’s referral letter, this episode explores how university presidents have enabled the very corrupting influences they claim to stand against.

On August 3rd, 2021, the outside law firm—Kaplan, Heckler, and Fink—hired by the NCAA in March to conduct an external review of gender-based discrepancies between the Division I women’s and men’s basketball tournaments issued its first report. While Kaplan identified troubling inequities, most of its recommendations are warmed over from prior, failed reform efforts. Importantly, these recommendations leave to the NCAA the discretion of whether to adopt them. In short, Kaplan’s work presumes and preserves the essential dysfunction in college sports: NCAA regulatory authority. This episode begins an analysis of the report, including its scope and purpose. The NCAA’s dishonest virtue-signaling on gender equity as a primary institutional value provides valuable and timely insight into its disingenuous campaign for name, image, and likeness “compensation” during the perfect storm of 2019 – present. Is it time for the NCAA Board of Governors to cut its losses and fire Mark Emmert?

By executive order dated June 24th, 2021, Kentucky Governor Andy Beshear issued temporary name, image, and likeness regulations that provide athletes in Kentucky NIL rights. With a NIL law pending in the Kentucky legislature, Beshear acted preemptively to ensure that Kentucky schools are not left at a competitive disadvantage in the ever-important talent acquisition market. Beshear’s executive order offers a new pathway for states who do not have NIL laws to preserve their competitive interests. Beshears order leaves to the universities broad discretion to define specific NIL rules and the NIL marketplace. This pathway makes a mockery of the NCAA’s campaign for absolute “uniformity” in NIL regulation. Now, rather than 50 different NIL standards, there could theoretically be 1,100 different standards. It remains to be seen whether other governors in states that have no NIL law set to go into effect on July 1st will follow Kentucky’s lead. I also preview another huge event on June 24th: a federal court order from Judge Claudia Wilken—the same judge who presided over O’Bannon and Alston—that paves the way for a new legal theory in athlete challenges to NCAA compensation limits. Buckle up. It’s going to be a wild ride!

The NCAA’s infractions and enforcement action against NC State arising from the basketball-related criminal cases in the Southern District of New York makes a mockery of basic principles of due process. From its inception, the NCAA Committee on Infractions (COI) relied upon newly created investigative and adjudicatory principles adopted in August 2018 by the NCAA’s Commission on College Basketball (CCB) recommendations. The CCB never intended these new tools to be utilized in the “old” COI process. Instead, the CCB recommended that these tools be available only to independent adjudicators in high-stakes NCAA infractions cases. Indeed, the very purpose of the CCB’s recommendations for a fundamental overhaul of the old infractions system to include a new, separate, independent track for adjudications of high-stakes cases was to mitigate obvious conflicts of interests in the old COI process. NCAA insiders control the old process, including the COI pool of adjudicators and in-house NCAA enforcement staff. In the NC State case, the NCAA ran the entire case through the old process while relying on the evidentiary shortcuts intended for the new process. Then, just a week before a COI panel was projected to hear the case, the COI administrator responsible for managing all infractions cases arising from the basketball-related criminal cases referred the NC State case to the new, ostensibly independent process. NC State reluctantly acceded to the referral but protested substantial due process irregularities. This episode provides a timeline of relevant events in the NC State case, from the beginning of the FBI’s investigation in 2015 on the criminal side, through the NCAA infractions process, and a hearing conducted last month by an Independent Accountability Resolution Panel (IARP). The NC State case is the first-ever to be heard by an IARP. The panel will issue a public opinion at some point. This infractions case has important implications beyond the due process concerns raised by NC State. The NC State case was substantially complete before (1) the US Supreme Court’s Alston decision; (2) the NCAA’s failed attempts in Congress to obtain federal protections and immunities from liability or scrutiny in its exercise of regulatory authority; and (3) the NCAA’s self-inflicted name, image, and likeness debacle. The predicate for the entire NCAA infraction and enforcement process is the principle of amateurism. That principle is now in existential jeopardy. The NC State decision will provide important insight into how the NCAA views the viability of amateurism and whether it can use amateurism as the basis for penalizing alleged violations of amateurism-based NCAA rules.

From the beginning of the early 20th century, one central question has plagued the voluntary regulation of college sports: who is in charge? If you were to pose that question to twenty in-system stakeholders/decision-makers, you might y get twenty different answers. The NCAA regulatory and decision-making process is notoriously opaque. Its defining feature is a lack of clear accountability. After the Commission on College Basketball’s report in April 2018, Commission chair Condoleezza Rice lamented that college sports decision-making resembled a circular firing squad where no one is accountable. Yet a careful examination of the composition of the NCAA’s most consequential governing boards and committees reveals that a small handful of NCAA insiders wield extraordinary power. These decision-makers operate as an invisible star chamber with influence across the board/committee spectrum. While this dysfunctional component of the college sports regulatory model is nothing new, the current star chamber suggests an imbalance of power among the Power 5 conferences. This episode looks at the composition of the current—post-Alston, post-NCAA constitutional makeover, post-NIL market—NCAA governance structure and identifies five key decision-makers and their crucial roles.