I. Introduction

“Apparently, the conviction has been that one best method of controlling college athletics must exist if only the formula could be discovered. The quest has proved, and is likely to prove, as elusive as the search for the philosopher's stone. No such formula has been found.”

Howard J Savage et al., American College Athletics, Bulletin Number Twenty-three (New York: Carnegie Foundation for the Advancement of Teaching, 1929; Chapter V: “The Administrative Control of American College Athletics,” p. 77)

“Presidents glory in all the good things about college athletics and blame others for the bad. They are far more responsible than anyone else for the current hypocritical tone of college athletics.

While college presidents talked incessantly about their reform agenda during the early 1990s, they were facilitating the TV scheduling of CBS, NBC, ABC, ESPN, TBS, regional syndicators, and local stations. Their basketball teams make a live college game available for TV producers any night of the week. ESPN led the pack in 1990-1991, for example, announcing an NCAA-endorsed 168-game college basketball TV schedule.

The fact is, from the college beer halls where enthusiastic students gather to the trustee level of university management, almost no one wants to change the structure or the rules of this successful entertainment enterprise.”

Former NCAA President Walter Byers

Byers, W., & Hammer, C. (1995, October 3). Unsportsmanlike Conduct: Exploiting College Athletes.

“The NCAA has numerous, very distinguished individuals on the various committees and its Council for public consumption, but the real power is in the hands of the bureaucrats who are unknown to, and unelected by, the membership of the NCAA.”

Nevada District Judge Paul Goldman, during Jerry Tarkanian’s lawsuit against the NCAA (1984)

I believe that the practices and procedures of the infractions committee are unfair, unjust, arbitrary, and heavy-handed. The enforcement program, as I have come to know it, is without simple decency and fundamental fairness.

Burton Brody, University of Denver Law Professor, describing the NCAA enforcement process (1978)

The NCAA and Power 5’s current quest to federalize their regulatory authority through Congressional intervention directly results from their inability and unwillingness to competently self-regulate and self-govern.

Through twelve Congressional hearings since February 2020—ostensibly on name, image, and likeness “compensation”— few legislators have acknowledged this fundamental flaw in the NCAA and Power 5’s bid for a historic federal bailout that would render college athletes second-class citizens.

In the broader commentariat, we often hear vague, intuitive criticisms of the voluntary regulation of college sports, such as bureaucratic inefficiency, lack of transparency, inconsistent rules enforcement, competing interests, emphasis on profits over education and athlete well-being, and on and on.

These criticisms beg two fundamental questions in the debate over the state and future of college sports: (1) who is actually in control? and (2) who should be in control?

Who makes the rules? Who interprets and applies them? And, importantly, who enforces them?

These seemingly simple questions have confounded external observers and decision-makers for decades. 

In 2017 and 2018, former Secretary of State Condoleezza Rice chaired the NCAA’s Commission on College Basketball, which was tasked with making reform recommendations in the wake of the basketball “scandal” that resulted in criminal prosecutions of athlete agents, shoe company executives, and assistant basketball coaches in high-profile basketball programs.

The Commission met with dozens of stakeholders in college sports, including NCAA executives and bureaucrats, conference commissioners, university presidents, university trustees, athletics directors, and coaches.

At a press conference in April 2018 announcing the release of the Commission’s report, Rice offered this rebuke to those with ostensible decision-making authority in college sports:

“The commission found that talking to the stakeholders was at times like watching a circular firing squad. The problem, the issue, and ultimately the fault was always the problem of someone else…[w]e are…recommending several steps to address the actual root cause of the problem: governance and leadership lapses among many who were charged with protecting the best interest of student-athletes. These are the people who are most responsible for giving these young men a chance to achieve a college education and a college degree. And frankly, some have given in instead to incentives to win at all costs.”

Similarly, at a July 2014 hearing in the Senate Commerce Committee in which NCAA President Mark Emmert testified in favor of the Power 5’s attempts to gain special NCAA legislative privileges, Senator Jay Rockefeller (D-WV) weighed in on the regulatory dysfunction in college sports, offering another skeptical take on the question of who is really running college sports: 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.”

At the same hearing, Senator Claire McCaskill (D-MO) cut to the heart of the confusing regulatory relationship between the NCAA and Power 5, saying:

“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?”  

This Tab and the Timeline (Section IV. Timeline of Regulation, Governance, and Enforcement) explore these crucial questions and the chronic confusion they have inspired going back to the 1950s and the Walter Byers era.

Regulation, Governance, and Enforcement Overview

Since the 1950s, the NCAA has stood as a towering monolith in the landscape of American college sports, monopolizing (1) regulation, (2) governance, and (3) enforcement, the three pillars of organizational legitimacy.

Regulation establishes the values, principles, and goals from which the NCAA derives its fundamental purposes. It is a declaration of intent outlining the ideals of amateurism, the “student-athlete,” athlete health and safety, athlete well-being, education, competitive equity, integrity, and fair play.

Yet, as the Timeline chronicles, the spirit of regulation often clashes with reality.

Governance is the decision-making process that attempts to translate regulatory ideals into rules and “legislation

Enforcement lies at the base of regulation and governance as a mechanism of compliance—a system designed in theory to ensure that the wheels of governance turn in lockstep with regulatory aspirations. Enforcement is where principles are tested and where the NCAA's rules and values are either fortified or undermined.

The Timeline tracks the structural evolution of NCAA regulation, governance, and enforcement and also delves into the chronic tension between them, including (1) how the concept of amateurism has often been wielded as a labor theory, not a moral imperative, and (2) how the NCAA rulebook prioritizes the policing of compensation and recruiting over athletes’ rights and well-being.

For over seventy years, the NCAA’s hegemonic dominance as the sole regulator in college sports has created an unhealthy learned helplessness among institutional stakeholders. The NCAA—and now the Power 5 conferences—act as the mothership from which all stakeholders receive their marching orders.  

This dynamic disincentivizes stakeholders to understand the true nature and purpose of the NCAA/Power 5 regulatory, governance, and enforcement models. 

How many Power 5 university presidents or chancellors know that the NCAA President doesn’t work for them and that athletes have no membership rights?

How many could name a single Division I Board of Directors member? Or a member of the NCAA Infractions Process Committee? Or the Board of Governors Subcommittee on Congressional Engagement and Action? Or the NCAA Board of Governors Federal and State Legislation Working Group?

If thoughtful analysts such as Condoleezza Rice, Jay Rockefeller, and Claire McCaskill are correct that the lack of regulatory and governance accountability is a purposeful design feature that obscures who is accountable for decisions in college sports, then how can there be meaningful reform from within?

And, importantly, who can stakeholders trust?

This Tab and the Timeline offer insights into these critical questions and identify recurring themes and patterns that explain the how and why of college sports regulation, governance, and enforcement.