IV. Limits on NCAA Regulatory Authority
The NCAA has regulatory authority only over its member institutions. The NCAA cannot regulate athletes, coaches, or athletic department personnel directly. These classes of individuals are not members of the NCAA. If the NCAA finds that an athlete, for example, has violated NCAA rules, it imposes punishment(s) through the member institution.
Similarly, the NCAA’s infractions and enforcement jurisdiction does not extend directly to market participants such as agents, financial advisors, boosters, shoe and apparel companies, NIL companies, and NIL collectives.
An important—and historically successful—component of the NCAA’s regulatory strategy is to portray those it cannot directly regulate as “bad actors.”
The NCAA’s binary “good” vs. “evil” value system categorically separates and isolates “bad actors” and presumes their guilt with the flimsiest allegations.
The NCAA’s rulebook and entire infractions and enforcement apparatus is premised on this crude distinction.
The NCAA seeks to indirectly regulate those outside its direct jurisdiction in two ways.
First, it imposes strict rules on member institutions’ involvement with certain classes of third parties, notably boosters and athlete agents. For example, the NCAA rulebook is loaded with limits on the relationship and interactions between athletes and agents. If the NCAA believes that an athlete has had an impermissible relationship or contact with an athlete-agent, the NCAA can declare the athlete ineligible for competition and punish the member institution.
These restrictions prevent athletes from seeking professional advice on complex business and financial matters that all other Americans can easily access.
Second, the NCAA partners with and encourages government and private authorities such as state legislatures, Congress, and the Uniform Law Commission to adopt or suggest laws that directly regulate “bad actors.”
The NCAA’s “bad actor” narratives and the presumption that “bad actors” pose a substantial and chronic threat to the “integrity” of college sports lie beneath nearly all state regulation of college sports.
Invariably, “scandal” exists at the intersection of athlete labor and money.
The NCAA’s selective, overzealous enforcement of its amateurism-based rules against the laborers that drive the value in the broader sports-industrial complex has civil rights implications. Most athletes implicated and punished in “scandals” are African American football or men’s basketball players, many from challenging personal and financial circumstances.
Eliminating NCAA amateurism-based restrictions would eliminate most “scandals.”
The NCAA claims its restrictions on athletes’ interactions with “bad actors” are necessary to protect vulnerable athletes from “exploitation.” Indeed, that paternalistic value was foundational to the NCAA’s long-standing formulation of the Principle of Amateurism set forth in Article 2.9 of the old NCAA constitution:
“Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” (emphasis added)
This principle assumes that the NCAA, conferences, and member institutions cannot, by definition, exploit athletes.
The NCAA’s self-serving construction of potential athlete exploitation ignores that its rules and policies designed primarily to control athlete labor, particularly in Power 5 football and men’s basketball, are exploitative.
The NCAA’s and Power 5’s attempts to use state (and federal) governmental power to insinuate amateurism-based limitations into law are one method to retain an iron-fisted monopoly over the athlete labor market.
