"Relative to the legislative process, we are very much at a point now where we can't get anything that's transformative through the system," Big XII commissioner Bob Bowlsby said earlier this month, helping kick off football media day season with fireworks. "I think that's particularly felt by seven or eight conferences and the five major conferences in particular. It is just very difficult to do anything that would benefit our student athletes or our institutions that doesn't get voted down by the larger majority."
What's the real story behind the NCAA legislative process - what's the showdown really all about? And why is this important?
The talk of seismic change returned this week. Multiple conference commissioners hinted at media days that major changes in the way the NCAA is run are inevitable, including a new division made up of the schools which produce the most revenue.
Pointed comments by SEC commissioner Mike Slive last week toward the NCAA -- "there are important questions that must be answered" -- began the drumbeat. Big 12 commissioner Bob Bowlsby and ACC commissioner John Swofford spoke openly about "transformative change" and "some kind of reconfiguration of how we govern."
This week SI.com spoke with numerous high-level college sports officials, and there was a clear feeling among them that there would be many changes at the highest levels of college sports within the next year. The so-called Big 5 conferences -- Pac-12, Big Ten, Big 12, SEC and ACC -- have been commiserating for months and there's a consensus that significant change is needed.
"I think there's such momentum at this point," said one prominent college official. "This wasn't an accident that you're getting this series of media day comments. The train is moving."
Pete Thamel, along with fellow Sports Illustrated writer Andy Staples, reported discussions that something big is coming down the lane in terms of collegiate athletics.
How did we get here?
It's worth a very revealing look at an Inside Higher Ed piece that just came out last year, which details the battle lines - and shows that the "Big 5" is no stranger to eroding the representation of their smaller members.
You could put it this way: it's what they do.
With representation on the governing bodies that control the NCAA’s direction skewed toward the biggest, wealthiest athletic programs that make up the 120-institution Football Bowl Subdivision, the rest of the association’s members – the 122 colleges in the Football Championship Subdivision and the remaining “non-football schools” – have for years had less say on the Division I Board of Directors and the NCAA Executive Committee, which oversees the entire association.
In 1997, as the big-time programs argued that their more numerous programs and athletes warranted more power in governance, the NCAA moved away from its structure of one institution, one vote, in which each college (at least in theory) had equal say on the issues. That was replaced with a federated system that put college presidents more clearly in charge of the association's governance and gave divisions more independence, with the aim of increasing efficiencies. Smaller committees were created to deal with individual items, leaving the board to handle big-picture issues.
This puts Silve's latest words in historical context to some degree - casting Silve and his conference not as put-upon victims of constant obstructionism, but rather just another chapter of the "Big 5" trying to get more control over governance, taking a somewhat-democratic system and replacing it with a presidential-led system and gave more power to FBS conferences in particular, giving them a permanent majority on the Board of Directors and half the votes on the executive committee.
In 2008, again to increase efficiencies, the NCAA created a Leadership Council of Division I athletics directors, faculty athletic representatives and conference commissioners, to advise the board on strategic and policy issues. It also formed a Legislative Council, charged with “considering every proposal in the annual legislative cycle with the caveat the Board can examine and act on any proposal it so chooses.” Unlike the board, each of those bodies has 31 members – one for each conference.
Despite FBS programs making up only about a third of Division I membership, they hold 11 of 18 board seats (one for each conference, excluding the three “independent” institutions, such as the University of Notre Dame, that are categorized under the FBS but don’t belong to an official conference). The FCS has four seats, and non-football-playing institutions have three (that adds up to seven of the 20 non-BCS conferences).
At this point, looking at NCAA governance, it's a wonder how the non-FBS-playing schools of Division I got anything passed in their favor at all, seeing that the FBS conferences appear to have packed the councils and NCAA legislative apparatus with representation.
But the Big 5 managed, even with this structure, to try to ram through some legislation that would see a good portion of the small membership be able to put a stop to something the non-Big-5 membership thought would be a horrible idea - an allowable extra $2,000 stipend for athletes that SEC commissioner that NCAA president Mark Emmert and Mike Silve was pushing hard.
"It's a disappointment that it's not taken care of yet," Slive said. "We truly believe that we ought to do more for our student-athletes than just the room, board, books and tuition. We're hopeful that we can continue to make that work. ... I think it's fair to say it's an idea that's not going to go away."
The concerns among the schools voting against were many, but perhaps the best may have been articulated by Tennessee State president Portia Shields:
“Our athletes already get free room, board, tuition, books, and fees,” she said. “I’m not trying to keep athletes from getting money they need. But the only way to get more money to them would be to raise fees on all students.”
Silve and the "Big 5" came up with the proposal for the stipend after an August 2011 retreat of fifty university presidents, including disgraced former Penn State president Graham Spanier, South Florida president Judy Genshaft, Kansas State president Kirk Schulz and others. Unsurprisingly, after reading the composition of the NCAA Board of Directors with their built-in 11 out of 18 board member advantage, the stipend legislation passed with flying colors through the FBS-led committee.
“This was an unprecedented meeting, and it was very, very positive,” said Judy Genshaft, chair of the board and president of the University of South Florida.
“It was, in short, one of the most aggressive and fullest agendas that the Board of Directors has ever faced,” said NCAA President Mark Emmert, saying its actions will have “profound impact, positive impact.”
You could say it did have profound impact, but perhaps not in the way that Silve and the Board of Directors may have hoped.
Under NCAA rules, if more than 75 member institutions request a legislative override, the board must reconsider the rule at its next meeting. If at least 125 colleges do so, the rule is automatically suspended. Proposal No. 2011-96, the “miscellaneous expense allowance,” received 160 overrides...
A majority colleges in the Big South Conference submitted overrides for both proposals; some related to the rules’ implementation process, others to their specific content, and still others to the cost issues. But underlying those complaints is a more big-picture concern.
“Some of us felt we really didn’t have much of a voice in it,” Big South commissioner Kyle Kallander said. “My view is that if we had more dialogue and more involvement of the full membership in the process, it would seem to me that we could have avoided some of the concern or opposition to some of those proposals. Obviously, we don’t know.”
In other words, the smaller schools found out a way to stop rubber-stamping particular rules through the NCAA - the legislative override process. It's was literally the only way the smaller schools could stop legislation that would have affected them deeply. Even subsequent attempts at softening the proposed rule - for example, needs-testing the aid - couldn't make its way through, perhaps because of the way the legislation was forced through the process.
Is it really "gridlock", making it "very difficult to do anything that would benefit our student athletes or our institutions", as John Swofford of the ACC said in his media day speech? Or is it a lack of representation of smaller schools for crafting legislation?
Considering that four of the six proposals that resulted from Emmert's presidential retreat passed and were enacted, it doesn't take a rocket scientist to come up with the answer.
To be fair, though, despite the nature of the stipend rule, it does appear to be a piece of legislation that is important to the "Big 5". Whether it's paying the athletes $10,000 for their time at college, whether it's an attempt to build a built-in recruiting advantage over other schools, or just a way to show to the court in the Ed O'Bannon case that athletes at top schools will get something for competing, it is something that the "Big 5" is fighting for hard, and continuing to fight for hard.
It reveals something: governing 355 different Division I schools that are different in every conceivable way is a major challenge.
You'd be hard pressed to see any similarities between NJIT, with its $77.6 million endowment and modest athletic program, and Ohio State, with its $2.366 billion endowment and its ginormous athletics department. Yet they both are members of Division I. Would it be fair that the Buckeyes, who sponsor 33 sports and generate a boatload of revenue for the NCAA and member institutions, get the same vote as the Highlanders, who sponsor 18 varsity teams yet generate next to nothing?
They also have very different priorities when it comes to items that the NCAA governs. To take a fictional example, NJIT would probably be very interested in increasing the size of the share of NCAA Tournament money, something that could be a huge financial windfall for them, but would be a drop in the ocean in Ohio State's athletic department's revenue, who might get that in a month from their lucrative TV contract.
Similarly, the stipend deal could crush NJIT, who would now be under immense pressure to add a $2,000 stipend to their existing scholarship basketball teams, and further strain a tiny budget for athletics. But for Ohio State, the issue is one of fairness in compensating the athletes that generate most of their money. They're happy to give the athletes $2,000 a year - a drop in their bucket - to acknowledge their contributions.
Crafting rules that are good for the entire membership are a real challenge. Is creating a new division or new football subdivision the answer? Or is there another possibility?
An interesting thought was mentioned in Andy Staples' column:
Bowlsby also suggested the creation of federations within the NCAA to make unique rules to govern each individual sport. This is intriguing but complex.
While Mr. Staples seems to shrug this off because its complexity, there is merit to Silve's idea of "sport federations" that could maybe give people what they want without going through the process of creating a new division or subdivision.
Suppose, again, you're NJIT. You don't care two nuts about FBS football, whether Ohio State plays in a playoff or bowls, or whom they schedule out-of-conference.
But you do care passionately about basketball, and, let's say, women's golf.
What's wrong with having different legislative structures - one for football, one for basketball, and one for women's golf?
Basketball could be organized differently from football, perhaps a one-institution, one-vote type of organization, while football could be more centralized towards the "Big 5" conferences.
And women's golf, comprising of 30 schools, could be organized differently than that, perhaps an informal group that is less centrally controlled and allowed to make rules easier.
Individual student-athlete rules per sport could perhaps be devised. For example, a $2,000 per year stipend might be considered a good idea for the athletes of the 230-240 Division I football programs, or maybe even the 120ish FBS football programs, but not an implementable idea for the schools whose bigger focus is basketball.
So maybe the stipend is enacted in Division I football, but not Division I basketball. Under the current governance structure, it's all-or-nothing.
It seems to make more sense the more you think about it - and a lot less complex than the "superdivision" concept, which opens up the questions of NCAA tournament eligibility and cross-divisional play that, at a minimum, challenges the common concept of divisions today.
Would the schools of the FCS be crazy about this new football structure? Maybe, maybe not. But separating all (or just some) of the FBS schools in their own "superdivision" could be worse, where they could legislate that they only play each other, they could bump up the number of scholarship athletes to, say, 100, and/or they might not even play in the same NCAA men's basketball tournament.
With talk of the Big 10 purposely taking FCS games off the schedule, this is no idle threat, one that Missouri Valley Conference commissioner Patty Viverito talked about at their media day.
On a question about such FBS conferences like the Big Ten essentially eliminating non-conference ‘guarantee’ games against FCS schools, the commissioner said she is not in favor of such a decision.
“Our hope is that as the FBS playoff selection criteria becomes more solid, they will recognize that playing our teams in many ways makes more sense, both financially and competitively than some of the bottom FBS options,” she said.
Overall, in a "sport federation"-type structure, football governance would seem to be easier, even if you include the FCS schools. Division I would basically stay the same, it would just be run a little differently.
And it also has the side benefit of not changing things that much, either. The playoff payoff to the "little 5" FBS programs could continue without legal challenges.
When it comes to football, however, the commissioners of the other five conferences in the Football Bowl Subdivision — the Mid-American, the American Athletic, the Mountain West, the Sun Belt and Conference USA — do not seem eager to see a split.
“We are business partners; that C.F.P. contract will be honored, or there will be tremendous legal implications,” Craig Thompson, the commissioner of the Mountain West, said, referring to the new college football playoff. “We’re not going anywhere.”
The 10 conferences in the F.B.S. signed a 12-year, $5.5 billion deal late last year agreeing to a playoff format that begins next season, and have dozens of contracts for regular-season games between teams from the top five conferences and those from the bottom five. Ryan Rodenberg, an assistant professor of sports law analytics at Florida State, said in the natural evolution of college athletics a “superdivision” might be created, but it was difficult to envision it happening soon.
“There are five and half billion reasons why, and that’s the contract that was just signed among all 10 conferences for the football playoff,” Rodenberg said. “The money is too good. They just entered this deal. Why mess with it now?”
For the small schools, a "federated support" solution makes it a lot easier to say you have a voice at the table - in football's case, a room with 20 conference commissioners coming to a decision on your sport rather than 31, including a bunch of representatives that don't know, or care, about your sport..
For the big schools, it's a solution that navigates around these potential headaches and essentially keeps the same, profitable revenue structure in place.
Emmert himself seemed to be hinting at something like this a year ago, too.
One concern that has reemerged in the wake of conference realignment is whether the BCS institutions, tired of being constrained by their less-wealthy counterparts, would join forces and form their own division. The idea, which harks back to before the governance reform of the 1990s, would give the biggest programs more flexibility in budgets and operations, and, should they pull away from the association completely, loads more revenue from the March Madness basketball tournament.
But few, including Emmert, to a point, seem to give credence to that theory.
"That's certainly not an issue that I worry about because as long as we, the association, are providing them with the kind of support they need to be successful, then it works well," Emmert said. Noting that the BCS programs want to see change, too, he argued that the best approach would be to allow for greater flexibility in the rules the division puts in place. "Trying to find one-size-fits-all solutions when you have colleges of 3,000 students and $5 million athletic budgets with a school of 50,000 students and a $155 million budget -- those are two very different kinds of enterprises, and if all the rules have to be applied identically in both of those circumstances, it's very, very hard to make substantial change."
Sport federations might be the way to get smaller changes through more quickly, more targeted towards the individual sports, and could also have the effect of eventually being adopted by every sport. In a way, it's like taking the monolithic, all-or-nothing structure of the NCAA and changing it to something that looks like more like the United States, with each "state" representing a different sport, with its own governor, crafting legislation to work for its own "state".
While nobody knows what the future holds, I think there's a lot more mileage in the "sports federations" idea than most are letting on. It might also give more schools and conferences a "seat at the table", while making it easier to govern overall - with less change than the other options.
It's not as sexy or revolutionary as a new all-sports division or football subdivision, but it's a solution that gives everyone what they say they want.