On April 24, the NCAA Board of Directors is expected to approve a new governance model, including some major changes. And on April 25, Northwestern football players will vote on whether to form a union, now that they're legally employees.
Adding these to the organization's many other ongoing legal issues can make things confusing, so we're assembling this guide. We will continue to update this as needed. If you have anything you would like to see added or updated, please let us know in the comments.
Potential policy changes: Big 5 autonomy ★ Permissible vs. actionable legislation ★ Full-cost scholarships ★ Four-year scholarships ★ Educational trust ★ Countable hours ★ Long-term medical coverage ★ Benefits and agents ★ Extended due process ★ Transfer rules
Potential policy changes
The power conferences — ACC, Big 12, Big Ten, Pac-12 and SEC — are expected to gain autonomy from the rest of Division I. Essentially, this means that those conferences will be able to approve rules that only apply to themselves.
The schools in the Big 5 are richer than their smaller Division I counterparts, and therefore, they have different interests. The bigger conferences have long fought the smaller ones to be able to provide athletes with more benefits, but were unable to do so, because small schools that cannot afford these additional benefits had a larger portion of the votes.
Autonomy means ultra-rich Texas and journeyman New Mexico State won't necessarily have to agree on the same rules. Cooper Neill, Getty
Each rule approved by the Big 5 can then apply to smaller conferences in one of two ways.
Let's say the power conferences adopt a full-cost scholarship and that this counts as permissible legislation. Smaller conferences can then individually choose whether they want to adopt it. This way, no conference is forced to adopt something it doesn't think it can afford, but the bigger schools are not held back.
Actionable legislation would still have to pass a 27-conference voting majority before it applies to the smaller conferences. As John Infante explains, "actionable legislation would be where the five conference want to limit themselves and include personnel limits, time demands on athletes, transfer rules, financial aid cancellation, recruiting contact, and pre-enrollment support for prospects." The board didn't fully endorse many pieces of actionable legislation. Those are still up for discussion.
The steering committee continues to discuss other areas that could be included in the areas of autonomy, including the creation of mandatory time away from athletics for student-athletes; eliminating rules that prohibit student-athletes from pursuing careers outside of athletics while still competing (for example, making music and art or writing a book); recruiting; transfer issues; and athletics department personnel.
Athletic scholarships don’t cover the full cost of attending a university. NCAA president Mark Emmert tried to address this by proposing $2,000 stipends for athletes. However, the proposal was shot down by smaller schools, which claim they don’t have the money to do it. Autonomy for the Big 5 should be the solution.
Former Minnesota football player Kendall Gregory-McGhee recently filed a lawsuit against the NCAA and the five major conferences for capping the amount of assistance provided in a scholarship.
The NCAA does not require its membership to give incoming freshmen four-year scholarships.
Many schools do, but the ones that renew scholarships from year-to-year can give athletes the boot before they finish their eligibility and their degrees. The union movement describes this as a major concern; athletes’ scholarships are at the mercy of the schools.
It appears that larger schools will be able to vote on whether their members will be required to offer four-year scholarships, along with other things like changes in "eligibility for aid, period of award, reduction or cancellation, renewals or non-renewals."
Last summer, Big Ten commissioner Jim Delany pitched the idea for an educational trust, which would essentially allow athletes to finish their degrees on scholarship even after their athletic eligibility expires. The trust was one of the goals of the Northwestern athletes when they petitioned to unionize, and it was supported by NCAA president Mark Emmert at the 2014 Final Four.
The NCAA only allows athletes to spend 20 "countable hours" on their sports each week. However, during the unionization hearing, CAPA’s attorneys noted that athletes actually spend up to 50 hours a week on their sports. The NLRB’s regional director in Chicago agreed that the NCAA’s countable hours are, essentially, bogus.
In order to allow athletes to focus more on school, the conferences could create more stringent time demands that create "a more appropriate balance" between academics and athletics. They could also enact "athletic dead periods," which would be another way of refuting the fact that being a Division I athlete is essentially a full-time job.
While full long-term health insurance doesn’t appear to be on the table, the unionization effort highlighted the need for schools to provide long-term medical care for sport-related injuries. This could be an expensive proposition, since Title IX regulations would likely require it for all sports.
Medical coverage is largely deregulated by the NCAA, because the organization does not want to be liable for concussions and other lingering injuries that athletes sustain in college. Schools have the ability to decide how they want to cover long-term health issues.
It doesn't look like much will change, likely because the NCAA does not want to be liable. The proposal says that "the five conferences and their 65-member institutions will have autonomy in this area to maintain the current institutional freedom to support student-athletes' needs, and the responsibility to lead on these issues, providing the opportunity for all Division I members to follow and act in a manner appropriate to their schools, teams and resources."
That's a lot of buzzwords to say nothing. This is why unionization will likely be the best route for players to seek improved medical coverage. There isn't much negotiating that can be done at the NCAA level.
However, some smaller changes were made by the NCAA this April. Schools are required to provide more and better-trained medical and training personnel during all physical activity, and there must now be at least three hours of rest between practices.
It's clear that the NCAA is still against athletes marketing themselves, which could end up being its downfall from an antitrust standpoint. Still, the organization is prepared to enact some common sense rules that allow players to receive additional benefits.
Meet the Bag Man
Meet the Bag Man
The benefits permissive to everyone could include allowing schools to pay for travel for families to postseason games and expenses for practice, like parking passes. The new rules would allow for families to get loans for "loss-of-value insurance," which is a policy star athletes can take out to protect against career-ending injuries sustained in college that would affect their future earnings.
They could also allow schools to pull some restrictions on rules governing agents (which SEC commissioner Mike Slive has lobbied for) and allow athletes to make money in non-athletic endeavors.
Actionable benefits could include allowing schools to pay for pre-enrollment expenses, like athletes' medical procedures the summer before they enroll and transportation to campus.
Right now, players can appeal to the NCAA if they’re punished for violations. The College Athletes Players Associtaion (CAPA) is asking for a better appeals system and for the punishments to be consistent throughout the organization. The latter has been an issue in recent years, as sanctions for schools and players have varied wildly (see Penn State, Miami, and USC).
The NCAA has already started redefining the differences between institutional and individual failure when it comes to academic fraud. It will also give athletes a small voice in the legislative process, though that might not be enough to dissuade athletes from unionizing to ensure a legal voice in the process.
As it stands, players must sit out one year when transferring if they don’t receive a waiver from the NCAA. The lone exception is the graduate transfer rule, which allows players to be eligible immediately if they have already graduated and are pursuing degrees that their schools don't offer.
However, the NCAA is seeking to make its waiver process more streamlined. Instead of allowing players to receive a waiver to play immediately when they transfer, they can get a year of eligibility tacked onto the end of their scholarship because of that hardship.
Even by enacting that change, the transfer rules could give the NCAA trouble in court. The schools and the NCAA have been criticized for the current rules, because coaches can restrict which schools players transfer to. Essentially, it's like a non-compete clause in a contract, which hurts the universities' argument that its athletes aren't employees.
The new model of autonomy allows for the power conferences to change the transfer rules when players transfer among the Big 5. They would not affect smaller conferences without their approval.
At one point in 2013, Oklahoma State coaches removed 37 schools from quarterback Wes Lunt's potential transfer destinations. Christian Petersen, Getty
CAPA stands for the College Athletes Players Association. It’s the union hoping to represent revenue-sport athletes at, for now, private schools. When the Northwestern football players petitioned to unionize, the petition was filed by CAPA on their behalf.
CAPA is funded by the United Steelworkers and hopes to help players collectively bargain with their universities to improve their benefits. If the Northwestern players vote to unionize, former Northwestern quarterback and CAPA leader Kain Colter said the union does not plan to ask for benefits that are prohibited by NCAA rules, though it will lobby for reform.
Some things that CAPA wants: Expanded medical coverage, better concussion technology, graduation trust, due process rights.
What CAPA isn’t asking for: Athletes to be paid. Part of CAPA’s argument in proving athletes are employees is that they’re already paid in the form of a scholarship.
Not about pay-for-play
The regional director of the National Labor Relations Board in Chicago ruled in March that the Northwestern players are employees. Northwestern has appealed the decision to the national board in Washington, D.C. On April 25, the players will vote on whether they want to unionize, though the votes will be impounded until the appeal is complete.
It's important to note that the vote is not about whether the players are employees. Even if they vote against the union, they're still employees if the NLRB upholds the ruling.
Former Northwestern quarterback Kain Colter, union movement leader. Eric Francis, Getty
Former UCLA basketball player Ed O’Bannon originally brought a case against the NCAA for what he says is an illegal use of players’ likeness. Early on, it was combined with a suit over the use of athletes' likeness in video games (Keller suit) and included Electronic Arts (EA) and the Collegiate Licensing Company (CLC). However, EA settled and also announced that it will no longer be making college football video games, meaning the focus is now on TV money.
The NCAA hoped to have the cases tried together and delayed, but Judge Claudia Wilken officially severed the cases and said the O'Bannon trial will start as scheduled on June 9, while the Keller trial will be in March 2015. She also denied the NCAA's request to keep evidence from the video games trial out of the O'Bannon case, which is another blow to the NCAA's case.
The O’Bannon plaintiffs were seeking damages and injunctive relief for the use of players’ likeness. Judge Claudia Wilken denied class status to the damages part of the suit, but did allow class-action status to the injunction part of the suit. This means that the players could still have a claim to some of the TV revenue the NCAA and its conferences bring in each year. The plaintiffs had been seeking individual damages, but dropped that portion of the case in order to have a bench trial, rather than a jury trial.
The players are asking for group licensing, meaning they would be the ones licensing their own likeness. In other words, they would collectively negotiate — possibly in a union — for a piece of the TV revenue that would then be distributed equally among them. The money could theoretically be distributed immediately or put in a trust fund for once players graduate.
Four years of O'Bannon coverage
This could significantly damage the NCAA, and smaller athletic departments argue that they would be forced to cut non-revenue sports. However, the counterargument is that schools funded non-revenue sports long before TV contracts were so lucrative. That’s even more true for bigger schools. For example, Big Ten schools could be bringing in $43 million in TV revenue each year by 2017.
Wilken refused to side with either party before the case goes to trial on June 9. She rejected the plaintiffs’ notion that broadcasts of games are commercial speech, but also disagreed with the NCAA, which claimed it has a First Amendment right to broadcast games without paying players. According to Al.com’s Jon Solomon, she came to that decision because the athletes have not "validly transferred" their broadcast rights to the NCAA. Moreover, Wilken will not allow the NCAA to contend that paying players will lead to non-revenue sports being cut, since it could mandate that schools allocate more of their football resources to these sports.
A potential witness list has been released, and it includes Mark Emmert, plaintiff Bill Russell, the UNC scandal whistleblower, numerous conferences commissioners and athletic directors, NCAA critic Taylor Branch and two EA executives, among others. The plaintiffs have objected to NCAA critic and former shoe marketing exec Sonny Vaccaro testifying, while the NCAA has objected to the Northwestern unionization case's findings being included in the filings.
The NCAA claims that while schools have a legal duty to protect their athletes, the oversight organization itself does not. This theory has been important recently, as the NCAA has faced a number of lawsuits that it has not properly protected athletes against concussions.
What's at stake
What's at stake
Ten concussion lawsuits were recently consolidated into one in a case that will be heard in Illinois. The ruling will determine whether the NCAA’s claim that it is not a responsible party is credible.
However, expect to see some more basic concussion protection from the schools, and possibly from NCAA mandates, since it seems likely that the NCAA is at least partially liable. Some teams have started wearing new helmets to combat the concussion problem, and one of CAPA’s goals is for schools to put concussion experts on the sidelines.
The Kessler lawsuit is unique in that it isn’t about getting damages for all college players. Rather, it’s an anti-trust lawsuit that argues the NCAA and the major conferences have engaged in price-fixing by not allowing athletes to receive anything more than a scholarship in order to play. The suit is seeking and injunction, and only the four players named in the suit are seeking damages.
The NCAA will likely respond to this lawsuit by saying athletes don’t have to play college sports if they don’t want to. But the Kessler suit alleges that there are no reasonable alternatives to a player hoping to play professionally. Basically, the NCAA and the power conferences control too much of the market for there to be viable alternatives for players, and they are intentionally keeping compensation low so they can get rich. In the past, the NCAA has said that responsibility falls on the NBA and NFL in particular for not creating better minor league systems.
The NCAA's five biggest threats
According to Solomon, a judicial panel is considering whether to combine the suit with one filed by former West Virginia running back Shawne Alston, which is seeking both damages and an injunction. According to Solomon, Alston’s attorneys favor both suites being combined, while the Kessler attorneys do not. This makes sense from Kessler’s side, since the damages portion of the O’Bannon suit was shot down.
The O’Bannon plaintiffs and CAPA’s representatives probably wouldn’t care all that much if the NCAA disappeared, but their lawsuits aren’t flat-out threatening the organization’s pillar of amateurism. The Kessler lawsuit wants to get an injunction that forces the NCAA to allow players to be compensated at market value beyond a traditional scholarship.
An injunction means a person or organization has to stop doing a certain thing. For example, in the O’Bannon case this would mean the NCAA would have to end its current broadcast model and allow players to bargain to receive a cut of broadcast revenue.
Damages are just what they sound like. In this case, the NCAA would be forced to repay athletes for the use of their likeness in the past. That part of the O’Bannon case was dismissed. In all of these suits, the players seem more likely to get injunctive relief than damages.
Title IX has a number of different sections, but when applied to sports, it forces schools to provide an equal number of scholarships and generally equal experiences to men's and women's sports. The scholarship rule is well-known, but schools are also not allowed to provide men's sports with better facilities than women's sports.
The Athlete Advocate
The Athlete Advocate
It's a fairly ambiguous law -- there are cases where you can't say, "this move is definitely a Title IX violation" -- and one that has been used to defend the way the NCAA does business. For instance, Title IX could potentially make it difficult to pay football players a salary if all athletes aren't paid.
The NCAA and Northwestern have claimed that they cannot negotiate with football players because of Title IX. While negotiating is not a Title IX violation, there are instances in which the players might ask for things that would violate Title IX if they weren't given to athletes in all sports. The school would need to act accordingly.
Although they are not the same thing, Title IX is often linked to non-revenue sports. As long as it still follows the scholarship guidelines, cutting sports is not a Title IX violation. However, cutting non-revenue sports to spend more on football is generally seen as bad practice.
The NCAA has long said that splitting television revenue with players would cause non-revenue sports to disappear, but the judge in the O'Bannon case said that is not a legitimate excuse, since the NCAA could mandate that schools have stricter revenue-sharing policies to save these sports.
Former Florida football player and current Minnesota Viking Sharrif Floyd is part of a group of athletes suing the NCAA and the other FBS conferences for capping scholarships below the cost of attendance, which they say is a violation of antitrust law.
The NCAA is already facing a number of antitrust lawsuits, but this one is different because it includes a women's basketball player — former Kennesaw State Owl Ashley Holliday — and is seeking damages and an injunction for football and men's and women's basketball players.
Another difference: Other antitrust suits have just covered the NCAA and the Big 5 conferences — ACC, Big Ten, Big 12, Pac-12 and SEC — but this one also includes the American, the Atlantic Sun, Conference USA, the MAC, the Mountain West and the Sun Belt.
With the Big 5 conferences already planning to start giving cost-of-attendance scholarships anyways, a suit against them wouldn't have been as groundbreaking. However, the inclusion of the smaller conferences is interesting, since many of them have claimed that their schools cannot afford to give full-cost scholarships. In fact, that was one of the reasons for the switch to the new model.
Former Arizona State and Nebraska player Sam Keller sued the NCAA, Electronic Arts (EA) and the Collegiate Licensing Company (CLC) for inappropriate use of athletes' likeness in the EA college football video games. He said that Arizona State's "QB #9" had far too many of his characteristics to really be a coincidence and not be based off of him.
The NCAA and EA had gotten around the likeness issues before by not using player names and claiming the players were chosen randomly. However, almost all the players in the game had similarities to their real-life counterparts, and it turned out that EA had actually hidden the real player names in the game, and the NCAA knew about it.
The Keller suit started out separate from the O'Bannon trial, but they were combined in January 2010. They quickly grew synonymous, but that changed last September when EA and the CLC, recognizing the writing on the wall, settled with the plaintiffs for $40 million, which was to be distributed among 125,000 former football and basketball players. EA also announced it wouldn't make any more video games.
The NCAA did not settle, and the suits remained together. The NCAA preferred that they remain together in order to delay the June 9 O'Bannon trial until 2015. However, Judge Claudia Wilken did not allow that, and set the Keller trial for March 23, 2015, while keeping the O'Bannon trial on schedule for June 9 of this year. She also denied the NCAA's motion to not allow documents from the Keller trial to be used at the O'Bannon trial. The NCAA had argued that it violates the Seventh Amendment — which does not allowed for facts of similar cases to have different decisions in different trials — but Wilken disagreed.