I. Introduction
The most critical decisions regarding the regulation and future of college sports are made out of public view among very small groups of institutional stakeholders and, increasingly, outside advisors such as lawyers, lobbyists, and public relations spin doctors.
The NCAA and Power 5 conferences disguise this decision-making reality with bold public claims that the NCAA operates through democracy-based principles much like our federal government.
Nothing could be further from the truth.
A. The NCAA’s Faux “Democracy”
Neither the NCAA President nor Board of Governors members (the NCAA’s only Association-wide governance body) are elected.
The NCAA President is hired by the nine-member Board of Governors and reports only to the Board of Governors.
The NCAA President has no direct relationship with the NCAA membership and is not directly accountable to the membership.
Similarly, the NCAA Board of Governors is self-nominating and self-perpetuating.
The same is true for the Division I Board of Directors, perhaps the most consequential decision-making body in the NCAA governance structure.
Athletes are not members of the NCAA. They have no independent right to demand a seat at decision-making tables.
The NCAA grants athletes token representation seats through an NCAA “student-athlete” committee that exists only at the pleasure of the NCAA.
As discussed in detail in the “NCAA Governance” Tab in the Explore menu, the NCAA Board and Committee structures are dominated by a small group of individuals representing the most powerful institutional stakeholders in college sports.
These power players serve on multiple key Boards and Committees at the same time.
This cross-over representation makes these Boards and Committees anything but “democratic,” “representative,” and “independent.”
B. The Power 5’s Secret Society
Operating completely outside the NCAA’s formal governance structure are select Power 5 decision-makers who are accountable to no one.
These power brokers operate in total secrecy, immune from stakeholder or public scrutiny.
The most consequential decisions in college sports history are being debated and made right now in real-time by the Power 5’s secret society.
Two sets of documents—one from December 2019 and another from December 2022—offer a rare glimpse into how Power 5 insiders (and their hired guns) conduct the most consequential business in college sports.
If it weren’t for the persistence and instincts of sports journalist Andy Wittry, we would never know these communications and documents exist. Mr. Wittry obtained them through public records requests.
These meetings and documents are merely examples of an unknown—but no doubt frequent—number of similar off-the-books strategy efforts by Power 5 decision-makers that will substantially influence the future of college sports and athletes’ rights.
Indeed, on February 2, 2024, the SEC and Big Ten formed the “SEC-Big Ten Advisory Group.”
Big Ten Commissioner Tony Petitti and SEC Commissioner Greg Sankey are the face of the Advisory Group.
The Big Ten and SEC created the Advisory Group before consulting the Big 12 or the ACC.
The Advisory Group’s agenda items include exploring settlement(s) of pending antitrust case(s) (with an emphasis on the House litigation) and “governance” issues.
The Advisory Group's very existence is an affront to the NCAA’s claimed “representative democracy” governance model because it operates completely outside it.
In response to criticism over the exclusion of the Big 12, ACC, and other stakeholders, Sankey said:
“Big problems are not solved in big rooms filled with people. You have to narrow the focus a bit. There may be raised eyebrows. We certainly called in advance to communicate what was going to be announced rather than do it in the shadows and have someone report on it. You might as well put things out there.”
Obviously, Saneky, Petitti, and SEC/Big Ten institutional decision-makers engaged in substantial discussions on the purpose and composition of the Advisory Group.
All of those discussions occurred in secret.
If there are “raised eyebrows,” they do not appear to include the NCAA President or the NCAA Board of Governors.
C. Who Is in Charge and How Did We Get Here?
For over forty years, stakeholders, external regulators, and commentators have been perplexed by a fundamental, recurring question in the regulation and future of college sports:
“Who is really in charge?”
With the NCAA and Power 5 conferences lobbying the federal government to insulate NCAA/Power 5 amateurism-based rules and regulatory authority from liability and second-guessing—that central question is more pertinent than ever before.
Documents from the secret meetings in 2019 and 2022 go a long way in explaining the current regulatory environment and how the Power 5 perceive their interests and their role.
These documents not only reveal the Power 5’s congressional playbook but also highlight the profound regulatory dysfunctions in college sports that are largely the product of the 1984 Board of Regents case.
D. Post-Board of Regents Regulatory Dysfunction
From 1951 – 1981, the NCAA had an absolute monopoly over televised college football. The NCAA negotiated with broadcast media outlets for rights to televise NCAA games and, importantly, owned all football revenue.
As demand for televised college football grew into the 1970s, big-time football schools became increasingly concerned that they were not maximizing their football revenues with the NCAA in control of the market.
In 1981, powerful football interests—led by the Universities of Oklahoma and Georgia—filed a federal antitrust suit against the NCAA in the Western District of Oklahoma, claiming the NCAA’s control of the televised football market violated antitrust laws.
In 1982, the district court agreed with the schools and struck down the NCAA’s television contracts. A year later, the 10th Circuit Court of Appeals upheld the District Court’s ruling. In 1984, the U.S. Supreme Court, in a 7-2 decision, agreed with both lower courts that the NCAA’s control over the televised football market violated antitrust laws.
Board of Regents is the most consequential single event in college sports history.
It marked a fundamental change in the college sports business model and freed big-time football to control its economic destiny independently of the NCAA. The result has been exponential growth in the value of big-time football and the increasing professionalization of nearly all college sports products.
Importantly, Board of Regents permits Power 5 football to keep all its football revenue and share none of it with the NCAA.
After Board of Regents, the NCAA and its national office bureaucracy had to find a replacement revenue source after losing its football empire. It turned to the Division I men’s basketball tournament (“March Madness”).
The NCAA took what was once a niche product in college sports and transformed it into one of the most popular sporting events in American history.
The NCAA’s current broadcast media deal with CBS and Turner for March Madness generates $1 billion annually and extends into 2032, essentially guaranteeing the perpetuation of the NCAA administrative state.
The fundamental shift in the college sports marketplace also changed the regulatory balance of power in college sports. Big-time football, not the NCAA, controls the voluntary regulation of college sports.
Since Board of Regents, the NCAA and its executive leadership have been under the thumb of Power 5 football interests.
The NCAA is ever fearful that if Power 5 football breaks entirely away from the NCAA (which the Power 5 has threatened to do several times), the Power 5 would disrupt or perhaps eliminate the NCAA’s March Madness gravy train.
The Power 5 and the NCAA struck a convenient, cynical bargain: the Power 5 keeps its football money, and the NCAA preserves its administrative state through March Madness revenue.
As football revenues—particularly post-season bonanzas—have skyrocketed, March Madness money is increasingly irrelevant to Power 5 football.
In essence, the NCAA has become nothing more than an ostensibly values-based “front group” for the Power 5’s football financial juggernaut.
Power 5 football uses the March Madness money—and the NCAA’s fear of losing it—as a bargaining chip to get their way in NCAA governance and policy making.
E. Priority: Preserve the NCAA National Office Bureaucracy and Reassure Beneficiaries of March Madness Money
In post-Board of Regents times of uncertainty in the regulation and direction of college sports, the Power 5 have been attentive to preserving the status quo for the NCAA national office and other downstream beneficiaries of March Madness money.
Indeed, the strange regulatory détente between the NCAA national office and Power 5 football has been normalized and reinforced by subsidies to lower-level Division I, block grants to Divisions II and III, and payment for all national championships events (except the CFP, which operates entirely outside NCAA control)
These windfall benefits total over $200 million each year and are paid exclusively from March Madness revenues.
Association-wide beneficiaries have come to view March Madness money as an entitlement that would be threatened by any change to the current regulatory or business model.
Importantly, so long as their March Madness money is guaranteed, downstream beneficiaries of the status quo comply with whatever the NCAA and Power 5 football desire.
When the Power 5 launched their regulatory power grab in 2014 through the creation of “Autonomy” legislation that benefitted only the Power 5 (see discussion of Autonomy below) the very first talking point reassured March Madness beneficiaries that their gravy train would not be disrupted:
“The current rules regarding access to NCAA Basketball Championships and the distribution of NCAA revenue would be maintained. We seek control of our own destiny with the least disruption to the expectations of other institutions.” (emphasis added)
The Power 5 and NCAA resurrected Autonomy values and tactics in August 2021, when the NCAA began rewriting its Constitution through the NCAA Board of Governors Constitution Committee.
Like Autonomy and the 2019 December meeting, the push for a new Constitution in 2021 ran quietly behind the scenes through Power 5 football interests. (See BigAm Episode 97)
NCAA at-large Board of Governors member, former CIA director, and former Texas A&M University President Bob Gates led the Committee.
In one of his early public appearances on an NCAA podcast to talk about the constitutional make-over, Gates’ first item of business was to placate lower-level Division I and Divisions II and III with assurances that their March Madness payouts were not at risk.
Ratification of the new Constitution required a two-thirds majority of the NCAA’s approximately 1,100 schools. Divisions II and III combined have about 750 schools or sixty-eight percent.
To reach the two-thirds supermajority, it was crucial for the NCAA and Power 5 to guarantee Division II and III support and votes.
Gates couched his appeal to beneficiaries of March Madness money with a “first do no harm” pledge, then an acknowledgment that preserving Division II and III payouts was a “non-negotiable” item to achieve the two-thirds votes threshold necessary to amend the NCAA Constitution.
The Constitution was ratified in January 2022 with more than enough votes to meet the supermajority threshold.
F. Influential External Observers and Regulators Sound Off: Mitch McConnell (R-KY), Jay Rockefeller (D-WV), Claire McCaskill (D-MO), Taylor Branch, and Condoleezza Rice
The opaque, dysfunctional post-Board of Regents regulatory environment has confounded external observers called upon to assess the college sports regulatory model.
1. McConnell (1997) (Post-season football)
In 1997, big-time football interests dispatched NCAA President Cedric Dempsey to a hearing in the Senate Judiciary Subcommittee on Antitrust, Monopolies, and Business Rights to address the potential antitrust implications of the post-season bowl market that froze out successful teams not in a major football conference.
The Subcommittee framed the issues as a battle between the “haves” and “have nots” in big-time post-season football. The “have nots” believed their exclusion from top bowl games was the product of anti-competitive collusion among the “haves.”
Dempsey dutifully sat behind a microphone and endured a barrage of questions from Senators representing “have-not” interests.
No big-time football university presidents testified.
Senator Mitch McConnell (R-KY) appeared at the hearing both as a witness and a Senator-inquisitor. McConnell had skin in the game because he was a graduate of Louisville, and Louisville was in the “have not” category at the time (Louisville would join the ACC in 2014). McConnell believed Louisville—which had a successful season the prior year—had been improperly relegated to a lower-level bowl game.
McConnell’s exchange with Dempsey (below with a lead-in from Subcommittee Chair Mike Dewine [R-OH]) highlights the extent to which the NCAA acts as a surrogate for Power 5 football interests.
McConnell’s questioning also zeros in on the fundamental unfairness of the NCAA regulatory model, where the interests that benefit most from the status quo—Power 5 football—have iron-fisted control over regulatory decision-making:
McConnell: And that leads me to the next question I really want to ask you. And that is who are the people who make the decisions? And I am one of those people who is a little confused about the relationship between the Bowl Alliance [big-time football interests] on the one hand and the NCAA on the other which you are representing. As the NCAA considers its future with respect to post-season football, who is that? Are those the presidents? Are those the athletics directors? How many people who are making that decision represent the 40% excluded class [the “have nots”] that are unable to aspire to greatness today? Who makes that decision?
Dempsey: Our organization is composed of 940 institutions and in Division I-A [now FBS] it is 110…there is a Board of Directors in Division I composed of college presidents—entirely college presidents—that is a body of members that will determine and ratify legislation.
McConnell: Well, let me rephrase the question. Is a majority of that group [15 Board members] currently in the preferred class?
Dempsey: Yes.
McConnell: So, the membership of the group that makes the decisions about the future of college football consists of a majority who benefit from the current system and that can only be overridden by a vote of the general membership, and it would require a supermajority to do that?
Dempsey: That is true.
McConnell: Mr. Dempsey, would that pass the smell test if you were trying to explain the fairness of that? Would that be an easy thing for you to do?
In McConnell’s view, the inequitable decision-making structure stacked in favor of big-time football interests didn’t pass “the smell test.”
The power imbalance that McConnell described in 1997 is far worse now.
It is operating today not only in stacked NCAA governing boards and committees but also in secret meetings outside the formal governance process.
2. Rockefeller (2014) (Power 5 Autonomy)
At a Senate Commerce Committee hearing in July 2014, it was NCAA President Mark Emmert’s turn to run interference for the Power 5.
Under pressure from external regulatory threats —O’Bannon, the Northwestern football team’s unionization effort, and NCAA miscues in the Penn State and University of Miami infractions and enforcement cases— Power 5 football wanted to further segregate its interests from the rest of the NCAA, ostensibly to offer additional athlete “benefits.”
The Power 5 lobbied for an “Autonomy” classification applicable only to Power 5 conferences and schools.
Autonomy would give the Power 5 the prerogative to craft legislation in several defined areas without seeking permission from the rest of the membership.
The Autonomy classification essentially created an association within an association for the benefit of the Power 5.
Through Autonomy, the Power 5 could offer things such as the full cost of attendance scholarship, a four-year “guaranteed scholarship, sufficient food for athletes, academic support, and additional insurance products.
The legislative prerogatives and athlete “benefits” available through Autonomy were modest. However, they were expensive enough to be cost-prohibitive for schools (e.g., Group of 5 schools) that might compete with the Power 5 in recruiting.
In essence, Autonomy legislation created a nearly insurmountable—and very carefully calibrated—competitive advantage in recruiting for the Power 5.
Behind the scenes, the Power 5 threatened to leave the NCAA if they did not get their way.
The Power 5 dispatched Emmert to the 2014 hearing to make the Power 5’s case for Autonomy.
No Power 5 university president, conference commissioner, or athletics director appeared to testify.
The failure of Power 5 representatives to make their own case for Autonomy and the NCAA’s attempt through Emmert to make it appear that Autonomy was an NCAA initiative drew the ire of a few Senators who saw through the charade.
Sen. Jay Rockefeller (D-WV) chaired the Committee and noted the absence of university presidents. Rockefeller suggested that presidents and chancellors should be subpoenaed to testify and defend the college sports regulatory and business model.
Rockefeller questioned the relevance of the NCAA’s stake in Autonomy because the NCAA wasn’t really calling the shots. He also astutely suggested that the absence of regulatory accountability was purposefully built into the relationship between the NCAA and the Power 5.
Rockefeller remarked, “I think the system is rigged so that you [the NCAA] are separated from the possibilities of getting something done. I don’t think you have the power, and I think it’s structured for that purpose.”
Emmert faithfully and emphatically repeated Power 5 talking points, knowing his job at the hearing was to take the heat for the Power 5.
3. McCaskill (2014) (Autonomy)
At the same hearing, in perhaps the most clear-eyed portrayal of the dysfunctional regulatory and business models, Senator Claire McCaskill (D-MO) asked Emmert:
“I feel for you because part of me thinks you’re captured by those that you’re supposed to regulate [the Power 5]. But then you’re supposed to regulate those that you’re captured by. And I can’t tell whether you’re in charge or whether you’re a minion to them.
I don’t sense that you feel like you have any control of the situation. And if you’re merely a monetary pass-through, why should you even exist?”
McCaskill’s question is even more relevant today, particularly with the SEC and Big Ten further separating their interests from the rest of college sports.
4. Branch (2014) (Autonomy)
Renowned Civil Rights historian and author Taylor Branch also testified at the hearing. Towards the end—after Rockefeller asked the witness to share their closing thoughts—Branch said:
“...the least hopeful thing I heard today is that we are looking to these same 65 schools [the Power 5] that are the most commercialized as the the engine of reform…[t]hey may give higher compensation, they may give more tips, but they are the ones that created most of the problems in the first place.”
“And I don’t think that the big schools are gonna do anything other that be more driven by the market in athletics. And quite frankly, those schools exploit their athletes both as players and as students…but I don’t see the 65 schools as an engine for much reform in the future because their record doesn’t show that.”
5. Rice (2018): The “Circular Firing Squad” (Commission on College Basketball)
In 2018, former Secretary of State Condoleezza Rice weighed in on the college sports regulatory model. Rice was named to lead the NCAA’s Commission on College Basketball which was formed in October 2017 in response to the men’s basketball “scandal” that resulted in prosecutions in the Southern District of New York.
The Commission published its Report in April 2018. At a press conference announcing the release of the Report, Rice described the regulatory leaders in college sports as a “circular firing squad” where no one is in charge, and therefore someone else is always to blame.
Despite warnings from various influential politicians and stakeholders, the NCAA and Power 5 continue to avoid honest discussions about the profound dysfunctions in the college sports regulatory model.
Between February 2020 and January 2024, Congress held twelve hearings, ostensibly on NIL “compensation.” Not a single congressperson or witness has directly raised or challenged the faultlines in the regulatory and governance model.
Indeed, there now appears to be some buy-in on both sides of the aisle to the belief that some form of protective federal legislation for the NCAA and Power 5 is necessary to save college sports from itself.
That speaks to the influence of Power 5 football and the skills of the Power 5 and NCAA’s prestigious lobbyists.
