V. Critical Themes from the Timeline

The Timeline reveals critical historical themes and patterns that define the dysfunctions and hypocrisies in the NCAA’s regulation, governance, and enforcement priorities.

1. Chronic Values Dissonance

Since the late 19th century, there has been a chronic and unresolved tension between institutions’ desire for prestige, power, loyalty, social currency, and money as expressed through big-time college sports and higher education’s claimed education-based mission.

This intractable condition has provoked conflict among in-system stakeholders that continues today.

Illustrative mileposts and themes include (1) debates on the nature and role of amateurism as a moral principle as an antidote to cheating and commercialization/professionalization (early twentieth century), (2) the presidential control movement (1980s and 90s), (3) the influence of external advocacy groups devoted to aligning the business of college sports with the values of higher education, (4) former Indiana University and NCAA President Myles Brand’s articulation of the “collegiate model” (2006), and (5) two phases of conference realignment and conferences/institutions capitulation to money and branding above all else.

The synergistic effect of television (and its expansion through new technologies), big-time football’s financial freedom (Board of Regents, discussed below), and the power of big-time sports in higher education as a marketing and branding tool highlight perceived tensions between athletic and academic interests.

At the governance level, an internal battle (and decades-long power shifts) emerged between athletics administrators and university presidents. The battle appears to have been resolved in favor of athletics administrators, as illustrated by the failure of the presidential control model and the Power 5’s governance takeover through Autonomy legislation in 2014 and the new NCAA Constitution in 2022.

2. Football is King

Big-time football has shaped nearly every structural regulatory event in college sports. Power 5 football is king of college sports and has dominated every aspect of college sports regulation.

From Walter Camp and the “Big Three”—Harvard, Princeton, and Yale— in the early 20th century to the Carnegie Report (1929), the television era and the NCAA monopoly over televised football (the early 1950s), Board for Regents (1981 - 1984), pushback by powerful football interests to the post-Board of Regents presidential leadership and control movement (1985 - 1996), the first round of conference realignment and the creation of the Power 5 (1990s - 2012), the Power 5 Autonomy campaign (2014), the new NCAA Constitution (2022), the Division I Board of Directors Transformation Committee (2022 - 2023), the second round of conference realignment that destroyed the Pac-12 (2023), and the SEC and Big Ten’s creation of a joint Advisory Group (2024), big-time football interests have imposed their will on the regulation and governance of college sports.

3. Board of Regents Changed Everything: The NCAA as Front Group for Power 5 Football

The 1970s saw powerful football interests begin to flex their muscles in regulating and governing college sports. As the televised football market matured and became increasingly lucrative, big-time football schools and conferences became increasingly uneasy with the NCAA’s football monopoly.

At the same time, the NCAA’s infractions and enforcement regime was coming under increased scrutiny and criticism, both within the Association and from Congress.

In 1973, the NCAA fundamentally restructured the association, dividing it into the three Divisions that currently exist. The divisional structure—supported by big-time football—allowed schools to operate more consistently with their competitive aspirations.

Division I contained all of the larger conferences and schools that competed at the highest levels in football.

This major structural change began a fifty-year, slow-rolling takeover of NCAA regulation and governance by football’s aristocracy.

At the time, decisions were made in a one-school, one-vote process that gave equal weight to each school in the Division.

In 1977, powerful football schools formed the College Football Association to exert more influence over the NCAA’s television contracts and address other regulatory concerns.

In 1981, the University of Georgia and the University of Oklahoma—representing the College Football Association–filed a federal antitrust suit against the NCAA, claiming that the NCAA’s monopoly over televised football violated federal antitrust laws.

The federal district court agreed with the universities. It issued an injunction striking down the NCAA’s TV contracts as a violation of the Sherman Antitrust Act and leaving the future of big-time college football to the free markets.

In 1984, the US Supreme Court upheld the injunction in a 7-2 opinion.

Board of Regents is the most consequential single event in college sports history. It marked a fundamental change in the business model and freed big-time football to control its own economic destiny. The result has been exponential growth in the value of big-time football and the increasingly professionalized nature of nearly all college sports products.

The dominance of Power 5 football interests over all aspects of college sports directly results from Board of Regents.

Another consequence of Board of Regents was that the NCAA and its national office bureaucracy had to find a replacement revenue source because it lost its football empire. It turned to the Division I men’s basketball tournament, now known as “March Madness.” The NCAA aggressively marketed that tournament because its bureaucratic life depended upon it.

Through long-term contracts with CBS and later with Turner Broadcasting, the NCAA guaranteed the perpetuation of its administrative state. In 1984, the broadcast media rights for the Division I men’s basketball tournament were worth approximately $15 million ($45 million today). Today, those rights are worth $ 1 billion.

The current CBS-Turner contract extends into 2032.

Board of Regents also changed the regulatory balance of power in college sports. Big-time football, not the NCAA, would control the regulation of college sports.

In essence, 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 the Power 5 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.

In the post-Board of Regents era, a cynical bargain evolved between the Power 5 and NCAA: the Power 5 keeps its football money, and the NCAA preserves its administrative state through March Madness revenue. As football revenues—particularly post-season windfalls—have skyrocketed, March Madness money is increasingly irrelevant to Power 5 football.

Power 5 football uses the March Madness money—and the NCAA’s fear of losing it—as a bargaining chip to influence NCAA governance and policy.

The NCAA has become nothing more than a “front group” for the Power 5’s football juggernaut.

The Power 5 hides behind the NCAA veil and routinely dispatches the NCAA President to take flak from critics of the Power 5 football-driven business and regulatory models.

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 funding for all national championship events except the College Football Playoff.

The NCAA and March Madness money also pays Power 5 football’s legal expenses/settlements in high-stakes litigation.

These windfall benefits to Power 5 football total hundreds of millions or dollars.

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 models.

Importantly, so long as their March Madness money is guaranteed, downstream beneficiaries of the status quo comply with whatever the Power 5 football powerbrokers desire.

4. The NCAA and Power 5 Have Aggressively Sought Unchecked Regulatory Authority

Beginning with the Walter Byers era in the early 1950s, the NCAA (and later Power 5) has aggressively acquired power and autonomy to dominate the college sports regulatory and financial markets.

The NCAA operates as a 501(c)(3) education nonprofit yet has enjoyed the status of one of the most powerful nongovernmental regulatory bodies in American history. Historically, the NCAA has made its own rules and played by its own rules with little interference from governmental regulators.

The NCAA’s regulatory monopoly has created a climate and culture of supreme arrogance and indifference to the rights of athletes and other institutional stakeholders. It has also bred contempt for external regulators that occasionally force the NCAA to change its behavior.

Notable historical markers include (1) Byers’ and the NCAA’s acquisition of meaningful enforcement jurisdiction in the early 1950s through the Kentucky basketball point-shaving scandal and Byers’ forced acquiescence of the University of Pennsylvania and Notre Dame to the NCAA television monopoly, (2) the NCAA’s decades-long battle with Jerry Tarkanian and the resulting Supreme Court's decision in 1988 that permitted the NCAA to wield its infractions and enforcement authorities without legal consequence, (3) failed attempts by external regulators to rein in the NCAA’s infractions and enforcement process (1978 House hearings, 1991 recommendations of the Rex Lee Special Committee, 2004 House hearings, 2018 Commission on College Basketball recommendations, 2021, 2022, and 2023 NCAA Accountability Acts).

The Power 5 sought to acquire its own separate infractions and enforcement process through Autonomy legislation in 2014 and the new Constitution in 2022.

Notably, several “NIL compensation” bills proposed by several Senators (2021 - 2023) would federalize the NCAA’s regulatory authority and provide the NCAA substantial governmental powers, including subpoena power to compel testimony and production of documents.

In their congressional campaign, the NCAA and Power 5 demand the authorities and immunities of a government agency without any of the responsibility, accountability, or transparency requirements applicable to governmental actors.

5. NCAA Rulemaking is Built Around Amateurism as a Labor Principle Not a Moral Principle

The NCAA rulebook reflects its true values and priorities: controlling the athlete labor force through amateurism-based compensation limits, recruiting, and eligibility rules.

In Walter Byers's 1995 book Unsportsmanlike Conduct: Exploiting College Athletes, he criticizes fundamental assumptions underlying big-time college sports’ regulation and financial model, including amateurism and the opportunistic invention of the term “student-athlete.”

Concerning amateurism, Byers said, “Collegiate amateurism is not a moral issue; it is an economic camouflage for monopoly practice.”

Over the last seventy years, the NCAA Division I Manual has grown into over 435 pages of trivial and often incomprehensible rules dedicated to controlling the athlete labor market.

A brief scan of the table of contents of the NCAA Division I Manual (2023-2024) reveals the truth of the NCAA’s values and regulatory priorities.

The NCAA Constitution is loaded with vague, aspirational language on the “primacy of [the] academic experience,” “the Collegiate Student-Athlete Model,” “integrity and sportsmanship,” “student-athlete well-being,” “diversity, inclusion, and equity,” and “gender equity.”

Yet none of those principles are supported in the NCAA’s actual rules and, therefore, cannot be enforced.

When athletes have tried to hold the NCAA accountable for these values-based Constitutional principles, the NCAA has successfully resisted responsibility. In cases such as NCAA v Smith (1999; Title IX and gender equity),  McCants v NCAA (2015; academic standards), Gee v NCAA (2022; health and safety), the NCAA has avoided liability, arguing it has no legal duty to athletes.

In McCants, the NCAA successfully argued that the NCAA’s Constitutional provisions and its public rhetoric on academic standards were nothing more than “vague and hortatory” proclamations that imposed no legal duty on the NCAA.

Similarly, in NCAA infractions and enforcement cases involving sexual violence (e.g., Penn State 2013, Baylor 2021) and educational standards (UNC 2017), the NCAA has had to acknowledge that it has no infractions and enforcement jurisdiction because it does not protect those areas through NCAA rules.

The Manual’s “Operating Bylaws” constitute the NCAA’s laws of the land, and, as discussed above, few of them align with the principles contained in the NCAA Constitution. Articles 12 (Amateurism and Athlete Eligibility), 13 (Recruiting), 14 (Academic Eligibility), 15 (Financial Aid [“pay”]), 16 (Awards, Benefits and Expenses for Enrolled Student-Athletes), and 19 (Infractions) comprise the heart and soul of the NCAA rulebook.

They span nearly 200 pages of the Division I Manual. They are written by lawyers, for lawyers. The rulebook has been described as “incoherent” (Condoleezza Rice) and “like the IRS Code” (Knight Commission).

Power 5 schools have armies of “compliance officers,” most with law degrees, sweating the details of the rulebook to avoid an NCAA investigation.

Yet high school athletes and their families are expected to have perfect knowledge of and comply with every single rule. Indeed, athletes or their family members must sign certifications to that effect each year.

Many of these rules result directly from schools’ obsession with gaining or losing a competitive advantage in the talent acquisition market, particularly in Power 5 football and men’s basketball.

These labor markets are among the most specialized and competitive in America’s economy. Each year, extremely small pools of truly elite talent are available in the market. Power 5 coaches will bend or break any rule to secure a prize recruit.

Competitive advantage/disadvantage derangement syndrome is widespread and infects governing boards, presidents and chancellors, alums, and state legislatures.

These fundamental features of NCAA regulatory priorities reveal the NCAA as primarily a compliance and enforcement organization to protect NCAA and Power 5 business interests rather than a benevolent education nonprofit dedicated to athlete education, health/safety, and well-being.

6. NCAA Enforcement Disproportionately Impacts African-American Athletes in Profit Sports

The NCAA’s statistics on enforcement actions show that seventy-five percent of enforcement cases arise in FBS football and men’s basketball. These two sports have the highest concentrations of African-American athletes among NCAA sports and are the lifeblood of the college sports entertainment-industrial complex.

Historically, athletes implicated in an NCAA investigation are treated by the NCAA, the media, and the public as criminals. However, their crimes are not against societal rules. Instead, they are crimes against amateurism and the “integrity” of college sports.

A mere allegation is sufficient to trigger a well-honed cycle of public shaming, humiliation, and demands for public atonement.

NCAA infraction and enforcement principles of “cooperation,” “mitigating circumstances,” and “restitution” incentivize institutions and athletes to immediately admit guilt and publicly bow to NCAA regulatory authority in the hope of leniency.

The Terrelle Proctor (Ohio State football 2010), Reggie Bush (USC football 2010), and Division I SDNY basketball (2017 involving numerous athletes) “scandals” exemplify the name-and-shame tactic employed by institutional stakeholders against African-American athletes.

Every athlete implicated in those cases was African-American.

The media fuels this cycle with obsessive—and lucrative—coverage that largely reinforces the public perception that athletes who receive a penny above their athletic scholarship in violation of NCAA rules have betrayed the purity of “amateur” athletics.

The exceptional athletes—whose talents and labors provided their institutions with windfall profits—are famous not primarily for their accomplishments and contributions as athletes but for violating the principle of amateurism.

7. The NCAA and Power 5 Have Extended Their Regulatory Authority to Non-Members Through State and Federal Laws

 The NCAA’s regulatory authority runs through its member institutions. If the NCAA finds that a rules violation has occurred, penalties are imposed on the member institution and those with whom the institution has a direct or influential relationship (athletes, coaches, athletic administrators, boosters).

 The NCAA does not have regulatory authority over athlete agents, athlete financial advisors, NIL collectives, and other third parties. It indirectly regulates those market actors by forbidding or limiting their access to athletes.

 The NCAA has successfully created a public narrative that any third party competing with the NCAA, conferences, or schools for access to athletes’ market value is presumptively a “bad actor.”

 The NCAA has allied with state legislatures, the Uniform Law Commission, and Congress on athlete and NIL legislation that explicitly adopt the NCAA’s amateurism-based values, rules, and “bad actor” narratives.

These preexisting limits set the baseline for athletes’ rights.

 8. The NCAA Operates Primarily as a Compliance and Enforcement Entity, Not a Benevolent Nonprofit Protecting Athlete Well-Being

The public face the NCAA presents as a compassionate education nonprofit directly conflicts with its primary operational purpose as an aggressive enforcer of its amateurism-based compensation limits.

The NCAA infractions and enforcement process has evolved to replicate the federal criminal justice system without providing basic procedural and fairness safeguards required in criminal prosecutions.

The NCAA enforcement staff initiates investigations based on the flimsiest and most unreliable “evidence,” including hearsay, speculation, and rumor. It uses confidential sources in its investigative work and offers immunity to cooperating witnesses.

However, the NCAA turns the right against self-incrimination upside down by presuming the guilt of those who choose to remain silent because they have violated NCAA “cooperation” principles.

University of Denver law professor Burton Brody's descriptions of the NCAA infractions and enforcement process in 1978 (see Timeline entry for 1978 House hearing) are true today. Of particular note are his comments on the NCAA’s cooperation principles, which were designed primarily to force those accused of an NCAA crime to immediately confess their “crimes” and pledge allegiance to the NCAA’s authority in hopes of leniency at sentencing.

In 2013, the NCAA replicated and adopted a punishment structure modeled after federal criminal sentencing guidelines. The new guidelines had set penalties for certain violations and an extensive list of “aggravating” and “mitigating” factors.

Two key mitigating factors are (1) “[p]rompt acknowledgment and acceptance of responsibility for the violations” and (2) “[e]xemplary cooperation.”

The NCAA’s attempt in March 2019 to intervene in the Gatto criminal case in the Southern District of New York arising from the basketball “scandal” was a perfect window into the climate and culture of the NCAA's infractions and enforcement regime.

NCAA sought access to documents and materials excluded from evidence at trial. Many materials were from wiretapped phone calls, texts, and emails obtained through FBI search warrants and cooperating witnesses.

The communications contained hearsay, rumor, speculation, and scandalous claims. The NCAA intended to use the materials in its enforcement actions as “evidence” through the use of its new “importation” powers recommended by the Commission on College Basketball in 2018.

The government opposed the NCAA’s motion. On September 3rd, 2019, the district court judge denied the NCAA’s request.

In weighing the balance between disclosure and the potential harm to the individuals participating in or mentioned in the materials, the district court found that the information the NCAA sought might be viewed “by certain segments of the public as scandalous. Disclosure carries the risk of significant reputational and professional repercussions for those referenced in the documents.”

The court also agreed with the government “…that the information in these documents consists of hearsay, speculation and rumor. Furthermore, the individuals referred to in these documents are not standing trial. They will not have the opportunity to test the reliability of the information contained in these materials nor respond adequately to any inferences that might be drawn on the basis of this information. In other words, the documents are of a sensitive nature, and the degree of potential injury is high.”

The fact that the NCAA even attempted to obtain and use these dirty, scandalous materials is proof of its unfitness to be trusted with federally protected enforcement authorities.

Several bills pending in Congress would place the NCAA in charge—directly or indirectly—of enforcement with subpoena power.

We don’t have to speculate on how the NCAA would use that extraordinary power. The NCAA showed its playbook in the Gatto case.

8. The NCAA’s Infractions and Enforcement Process is Broken and Has Successfully Resisted Independent, External Oversight

Since Walter Byers opened the NCAA’s first infractions file in the early 1950s (in response to the Kentucky basketball point-shaving scandal), its enforcement process has been the subject of controversy, criticism, and calls for reform.

Congress, courts, state legislatures, and “external” review bodies have consistently acknowledged the NCAA’s chronic failures to provide basic due process protections, transparency, and accountability.

Congress held hearings in 1978 and 2004 targeted to due process issues, yet no meaningful change resulted. Numerous bills have been proposed that would force the NCAA to treat institutions, athletes, and athletics administrators fairly according to fundamental American principles of fairness. Yet none have made it out of committee.

Most recently, three versions of the NCAA Accountability Act (2021, 2022, and 2023) have been introduced that would impose due process requirements on the NCAA and essentially place the NCAA’s infractions and enforcement process under the supervision of the Department of Justice.

These bills have received little attention and appear to have been swept aside in favor of broader “NIL compensation” bills that would federalize the NCAA’s existing corrupt infractions and enforcement regime.

Litigation challenging the NCAA’s infractions and enforcement authorities has likewise proved more harmful than helpful in forcing the NCAA to change its infractions and enforcement tactics. 

Former UNLV basketball coach Jerry Tarkanian’s decades-long war against the NCAA for due process protections back-fired in 1988 when the US Supreme Court held that the NCAA did not have to comply with federal due process standards because it was not a “state actor.”

The Tarkanian decision emboldened the NCAA’s abuse of the infractions and enforcement process.

State legislatures have also tried to rein in the NCAA’s enforcement practices. In the early 1990s, in response to the Tarkanian decision, several states (e.g., Nevada, Florida, Oklahoma) passed laws requiring the NCAA to offer due process protections not available in NCAA enforcement actions.

The NCAA filed a federal lawsuit claiming the Nevada law violated the Commerce Clause because it placed an impermissible burden on interstate commerce. The NCAA based its argument on a uniformity theory and argued that differences in state due process laws would make it impossible for the NCAA to comply with all of them, and regulatory chaos would ensue.

In 1993, the 9th Circuit agreed with the NCAA and struck down Nevada’s law.

“External” bodies have fared no better. In 1991, the NCAA’s Special Committee to Review the NCAA Enforcement and Infractions Process issued recommendations including (1) using truly independent adjudicators in NCAA enforcement actions and (2) making enforcement hearings open to the public. Both measures failed.

Former Solicitor General Rex Lee chaired the Committee. Lee represented the NCAA in Tarkanian.

In 2017, the NCAA formed the “independent” Commission on College Basketball (CCB) tasked to offer regulatory recommendations arising from the basketball-related scandal that resulted in federal criminal prosecutions in the Southern District of New York.

In April 2018, the CCB issued its recommendations. The CCB directed the NCAA to create independent infractions and enforcement processes for “high stakes” cases. The CCB noted the obvious and long-standing defects and built-in conflicts of interest in the peer review process and the need for a truly independent investigative and adjudication process.

In response to the CCB’s recommendations, the NCAA established the Independent Accountability Resolution Process, the first ostensibly “independent” adjudicatory body for infractions in NCAA history.

Ultimately, only six cases were processed through the IARP.

In August 2022, the Division I Board of Directors eliminated the IARP, citing delays and inefficiencies in the process.

9. The NCAA Has Used the Infractions and Enforcement Process to Enhance its Public Image as the Guardian of Amateurism and the “Integrity” of College Sports

A primary purpose of the NCAA’s infractions and enforcement process is to convince the public and potential external regulators (Congress, federal courts, state legislatures) that it is preserving the “integrity” of college sports.

History reveals a pattern of the NCAA glomming on to high-profile“scandals” in college sports to enhance its reputation with the public. In the process, the NCAA has disregarded the scope of its enforcement jurisdiction limitations.

The Penn State-Jerry Sandusky scandal (2011 - 2018), the UNC academic scandal (2010 - 2017), and the Baylor football sexual assault scandal (2010 - 2021) illustrate the NCAA’s obsession with publicity over authority.

In each case, the NCAA invoked its infractions and enforcement authorities. In each case, it was forced to acknowledge that it had no jurisdiction because NCAA rules did cover the misconduct at issue.

10. The NCAA and Power 5 Have Proven Incapable of Meaningful Voluntary Reform, Yet they Seek Extraordinary Federal Protections and Immunities that Would Make Their Regulatory Power Unchallengeable and Turn Athletes into Second-Class Citizens

The legacy of the NCAA/Power 5 regulatory, governance, and enforcement models is defined principally by the NCAA’s failure to competently or proactively self-regulate and self-govern.

Instead of changing their rules, behavior, and claimed values, the NCAA and Power 5 have embarked on the most audacious regulatory power grab in American sports history.

They seek federal legislation that eliminates all external regulatory challenges and places the NCAA on the Iron Throne of college sports regulation.

The NCAA and Power 5 seek to wipe states off the regulatory map through the constitutional power of preemption. They seek to wipe federal courts off the regulatory map through antitrust immunity.

Through a provision that prevents athletes from being deemed employees of their institution, they seek to prevent athletes from having the protections federal labor laws and agencies.

These unprecedented federal protections and immunities would make athletes second-class citizens and disproportionately impact African-American athletes in Power 5 football and men’s basketball.

At an October 17th, 2023 hearing in the Senate Judiciary Committee (“Name, Image and Likeness and the Future of College Sports”), ranking member Lindsey Graham—an NCAA and Power 5 ally—asked the witnesses what would happen if Congress failed to pass legislation that would preserve the big-time college sports status quo.

Dutifully, the NCAA/Power 5 witnesses rattled off the NCAA/Power 5 lobbyists-inspired talking points on the existential threat athlete compensation and employment status posed to college sports.

Curiously, no one asked the better question of what would happen if Congress passed any of the bills proposed by Congressmembers just like Graham that would end the athletes’ rights movement and eliminate athletes’ fundamental rights as Americans.

On the crucial question of who should be responsible for enforcement of any legislative requirements (e.g., NIL, health and safety), NCAA President Charlie Baker, Big Ten Conference Commissioner Tony Petitti, Notre Dame athletic director Jack Swarbrick, and Saint Joseph’s athletic director Jill Bodensteiner all testified that the NCAA should be the federal enforcement entity.

11. Can the NCAA and Power 5 Be Trusted With Regulation, Governance, and Enforcement Authorities Going Forward?

A central question emerging from a historical analysis of college sports regulation and governance is whether the NCAA and Power 5 have forfeited their claimed right to unchallengeable regulatory power and authority.

In the heat of one of the most consequential eras in college sports history, the battle for the Iron Throne of college sports regulation is being conducted mainly behind closed doors through back-channel communications among lawyers, lobbyists, and a small handful of “advocates” who have Congress’s ear.

 The public presentations of issues facing college sports—through congressional hearings and NCAA/Power 5 public relations campaigns— have failed to address the truth of their business model and the NCAA/Power 5’s seventy-year failure to regulate and govern according to their claimed values.

None of the themes and patterns from the Timeline above have been emphasized in public debate on the current state and future of college sports and the rights of athletes. Indeed, the NCAA and Power 5 have gone to great lengths to avoid an honest discussion on the truth of the business model.

It’s time for a new way of thinking.