NCAA Draft Constitution Heeds Alston’s Antitrust Warnings

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The NCAA released a draft of a new constitution on Monday. By envisioning conferences and schools as bound by fewer one-size-fits-all rules, the NCAA is acknowledging a core lesson of NCAA v. Alston: Competitors for college athletes should have more opportunities to reward athletes.

The constitution, which is expected to be ratified in January, advocates a decentralized model of NCAA governance. It notes that conferences and colleges are “of widely varying mission, size, resources and opportunities.” The constitution demands that NCAA governing rules “reflect these differences through the delegation of authorities and responsibilities to the divisions, conferences and member institutions.”

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To that end, the constitution calls for Divisions I, II and III to organize themselves as they see fit, so long as they do so “consistent” with overarching NCAA principles.

Divisions, under this plan, would: set standards for academic eligibility; develop policies on name, image and likeness; devise methods for revenue distribution to members; construct standards to investigate and punish schools for wrongdoing; and determine their own governing structure and membership. Each division would also formulate rules for conferences, who are poised to land more autonomy should their divisions adopt flexible rules. Further, the constitution foresees conferences and colleges crafting policies for the “licensing, marketing, sponsorship, advertising, and other commercial agreements that may involve” name, image and likeness.

The empowerment of conferences is consistent with Supreme Court Justice Neil Gorsuch’s admonition in Alston. “Individual conferences,” he wrote back in June, “remain free to impose whatever rules they choose.”

Gorsuch was referring to rules regarding compensation to college athletes for academic-related costs. Under Section I of the Sherman Antitrust, competing businesses are prohibited from conspiring in unreasonable ways. An individual conference that sets its own rules is not conspiring—it is acting by itself. In that same vein, Gorsuch highlighted, “individual conferences (and the schools that constitute them)” are free to “impose tighter restrictions if they wish.”

Even if divisions and conferences enjoy greater discretion, it wouldn’t extinguish potential antitrust concerns. For example, the ACC, Big Ten and the Pac-12’s recent move to align their schedules and restrict the scheduling of football games could attract antitrust challenges. The alignment might limit competition among media and broadcast companies to sponsor games in those three conferences. Still, the NCAA’s delegating authority should help it parry claims that it pushes members to restrict opportunities for athletes. The new model portrays the NCAA as less of a decider and more of an advocate.

The constitution also responds to long-standing criticisms—including those raised in federal litigations—that the athletes are excluded from the rulemaking process. As outlined, it guarantees that athletes are voting members on the NCAA’s board of governors and divisional leadership boards. In addition, it calls for each college to establish a “student-athlete advisory committee,” where athletes must comprise most members. These measures would help NCAA attorneys assert that athletes “had a say” on rules that are potentially subject to future legal challenge.

The constitution also implicitly rejects the recent denouncement of the “student-athlete” model by NLRB general counsel Jennifer Abruzzo. In a much-discussed memo, Abruzzo argued that colleges rely on the term to circumvent requirements under the National Labor Relations Act by “misclassifying” college athletes, whom she sees as “employees.” The constitution seemingly ignores Abruzzo’s position by repeatedly referring to “student-athletes” and stressing they cannot “be compensated by a member institution for participating in a sport.” The NCAA is currently a defendant in Johnson v. NCAA, which centers on whether the players contend they are employees under both state law and the Fair Labor Standards Act, a federal law that guarantees minimum wage and overtime pay.

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