New DI Governance Proposal --The Wrong Fix for What Definitely Needs Fixing

Josephine (Jo) R. Potuto, Richard H. Larson Professor of Constitutional Law and Faculty Athletic Representative, University of Nebraska

            The NCAA Division I Steering Committee has proposed a new Division I governance structure.  It retains an all-D I governance part and adds an autonomous part for 5 Conferences (ACC, B1G, Big 12, Pac 12, SEC).  One thing the Steering Committee got right.  It acknowledges that the 5 Conferences need autonomy, particularly to use our resources to enhance the treatment of student-athletes.  After that, there is not much positive to say.   Remarkably, the proposal would institute a governance structure that may be worse than what we have now. 

            First, autonomy apparently doesn’t mean autonomy.  The 5 Conferences had a plan for autonomous governance.  In important ways the Steering Committee shot it down. 

            The Steering Committee lists specific subject areas for autonomy, leaving little room for the 5 Conferences to respond to issues not currently anticipated.  It accepted the 5 Conference voting model:  one vote for each of the 5 Conference schools and also student-athlete voters.   But it proposes a supermajority vote to adopt policy or bylaws (2/3 of all voters and a vote in favor of 4 of the 5 conferences).  That makes it difficult, if not impossible, to get much of real substance done.  And if we do?  The CEOs from the 5 Conferences on the DI Board can vote a bylaw down if it has an undue impact on competitive equity for everyone else.  Competitive equity for schools with lesser resources always translates into limits on what can be done to benefit student-athletes.  Restricting this override to CEOs from the 5 Conferences is better than having the full Division I Board weigh in.  Nonetheless.  The mantra of competitive equity is the very reason why autonomy is needed.  And, yet, here it is again.  Another major constraint is that it appears that the 5 Conferences will have neither the authority to interpret the bylaws we adopt nor to grant waivers from them.  

            The combined DI governance side is no better.  The CEOS no longer will be an operational board.  Certainly the right move.  On their own campuses they oversee the medical school.  But they likely would not presume to act as dean and they certainly would not try their hands at surgery. 

            There will be a new Council to do the heavy lifting.  Again, the right move, at least in theory.  The plan is a Council of 38 members, with 60% ADs.   Do ADs need to be more involved and have more influence?  Absolutely.  They  need to have substantial input in the development of the rules by which they operate.  But 60 percent is too much, especially as Council seats also are reserved for other athletic administrators.  The end result may be fewer than five Faculty Athletic Representatives on the Council and perhaps none from the 5 Conferences.  No issue is exclusively athletic or campus/academic.  Optimum policy results from full vetting with all perspectives at the table, something that will be missing from the new Council.

            By my count, the NCAA and 5 Conferences are facing three antitrust lawsuits, the Keller/O’Bannon litigation, concussion lawsuits, and the Northwestern student-athlete union effort.  In one way or the other, all of these claim the collegiate model is a sham.  The Steering Committee proposal is an extraordinary governance solution for an NCAA and universities attempting to confront the perception and embody the reality that intercollegiate athletics are different in kind from professional sports because we embody a COLLEGE model. 

            I believe it was Winston Churchill who said that you should never waste a good crisis.  Unfortunately, it looks like that’s exactly what DI is about to do.

New DI Governance Proposal – Where is the Faculty in COLLEGE Athletics Governance?

Josephine (Jo) R. Potuto, Richard H. Larson Professor of Constitutional Law and Faculty Athletic Representative, University of Nebraska

            The NCAA Division I Steering Committee proposal for a new governance structure has an all-Division I part that will have a Council of 38 members to do the heavy lifting in policy articulation and bylaw adoption.   The Council will have 60 percent ADs plus other campus and Conference athletic administrators.   That leaves very little room for Faculty Athletic Representatives (FARs). 

           

            Ever since Adam and Eve ate that apple, we humans have lost the opportunity to do perfect.   If we’re thoughtful, diligent – and lucky – we achieve optimum policy.  To get to optimum, we need to be clear what our policy goals are and then do our best job to identify consequences, pros and cons.  We do that best by having different perspectives at the policy-development table.  Faculty, by training and often by inclination, ask a lot of questions and seek data before acting.  (I have not looked, but I doubt there were FARs on the Football Committee that attempted to prohibit offenses from snapping the ball until 29 seconds are left on the 40-second play clock on the claim that this would decrease the incidence of injuries.)  These are important foundations for the development of policy. 

            The Big 5 Conferences (ACC, B1G, Big 12, PAC 12, SEC) will have a representative from each Conference in the new DI governance structure.  They will have weighted voting, equal to about 38 percent of the total DI vote.  The 1A FAR Board of Directors (representing FARs from each of the ten FBS conferences and 125 FBS institutions) urged the Steering Committee to include 2 members from each of the 5 Conferences, one AD and one FAR.  This would substitute for weighted voting.  It would assure a substantial faculty voice and enhance overall discussion.  The presidents and chancellors of the Big Ten conference unanimously supported this plan.  The DI Steering Committee, however, said no.  Apparently for two reasons.

            First, it believed that a Council of 43 rather than 38 was too large and unwieldy for effective discussion.  Here I simply disagree.  From my experience, the change in tenor, level of participation, and breadth of discussion happens when a group exceeds 20 or 25.  The difference between 38 and 43 is negligible. 

           

            Second, it appears that the Steering Committee believed that ten members from the 5 Conferences would have too much influence on discussion even though their voting weight would be the same, or even a little less.  If true, this means the Steering Committee is comfortable with a much smaller faculty voice and less faculty impact on the scope and substance of policy.  If true, it also is a remarkable claim in a democracy.  Translated, it means you should not have as much influence as your voting weight gives you.  On this theory, we should decrease the numbers in the delegations from Texas (36) New York (27) and California (53) to the US House of Representatives because Alaska, Delaware, Montana, South Dakota, North Dakota, Vermont, and Wyoming  are disadvantaged by only having one vote apiece.