V. Transparency and Accountability
“The NCAA administers what is effectively a public trust in the United States—athletic competition among college athletes.”
Report of the Commission on College Basketball (April 2018)
For decades, college sports reformists of all stripes have recommended stringent transparency and accountability measures for big-time college sports.
These efforts have failed.
As noted in the Introduction, the NCAA and Power 5 release only two types of information for public inspection: (1) Form 990 nonprofit tax returns, (2) standardized financial disclosures for Title IX compliance under the Equity in Athletics Disclosure Act (EADA).
The NCAA and Power 5 use their status as private education nonprofits to evade public records requests.
Several recent examples serve as important reminders of how colleges sports’ overseers operate in the dark to prevent informed public discussion on the truth of the business model and how decisions are made behind the scenes.
a. Power 5’s Secret Meeting in December 2019 to Chart Their Congressional Strategy
On December 10, 2019, fifteen key Power 5 decision-makers (all conference commissioners and select university presidents) met outside the formal NCAA/Power 5 governance structures to devise a sophisticated strategy to eliminate state legislatures, federal courts, and labor-related administrative agencies from the regulatory landscape.
The meeting marked the beginning of the Power 5 and NCAA’s congressional campaign.
We know about this meeting only because a journalist obtained the meeting minutes through public records request and reported on the documents. His coverage was largely ignored in the mainstream and sports media.
These types of meetings occur routinely—particularly among Power 5 leaders—outside the formal NCAA and conference governance structures.
Note: This meeting is discussed in detail in the “Secret Society” Tab in the Explore menu.
b. Big Ten 2020 Fall Football Discussions During COVID
In 2020, during COVID, Big Ten university presidents and chancellors moved their discussions on whether to participate in fall football away the public university setting (at the time 13 of the 14 Big Ten schools were public) to the private Big Ten communications portal, where those discussions were immune from public records requests and scrutiny.
The issue came to light only because the Washington Post served public records requests on several Big Ten public universities.
Sunshine advocates expressed alarm at the calculated brazenness of the Big Ten presidents’ conduct.
In response, Big Ten presidents issued pro forma, evasive apologies and assured institutional stakeholders and the public that they did not intend to evade public records laws.
c. The NCAA Infractions and Enforcement “View-Only” Portal
The NCAA uses secretive tactics to keep its infractions and enforcement materials out of public view.
In 2021, during the NCAA’s investigation of the University of Louisville arising from the men’s basketball “scandal,” a Louisville journalist with the Louisville Courier-Journal sent a public records request to the University seeking records relating to the investigation.
Louisville refused to honor the request.
A primary justification offered by Louisville is that they neither owned nor possessed the documents because they are only available to Louisville for inspection and review (but not copying and retention) through the NCAA’s infractions and enforcement “view-only” portal at the NCAA national office.
The Courier-Journal filed a lawsuit under Kentucky’s public records laws and Louisville aggressively defended it. Ultimately, the court ruled in the Courier-Journal’s favor.
However, Louisville released the documents only after the NCAA’s Independent Accountability Resolution Hearing Panel issued its final decision in the Louisville case. The decision largely vindicated Louisville coach Rick Pitino, minimizing the newsworthiness of the documents.
d. The ACC-ESPN Contract and Grant of Rights
After the completion of the first round of conference realignment in 2012, several conferences entered into “grant of rights” contracts with the members institutions comprising the conference.
The grant of rights contracts were designed to deter schools from leaving for another conference. Schools faced severe financial consequences if they did so.
Grant of rights provisions essentially provided insurance against the chaos that defined conference realignment 1.0.
Grant of rights contracts are directly tied to long-term broadcast media contracts.
Broadcast media partners want the certainty of knowing that if they enter into a long-term contract with a conference, they will have a reliable slate of games for the duration of the contract.
In 2013, the Atlantic Coast Conference entered into a grant of rights agreement with its member institutions tied to ESPN contracts that would ultimately extend into 2032.
When conference realignment 2.0 which began in earnest in 2021 after Texas and Oklahoma left the Big 12 for the SEC, the top tier ACC schools became concerned that (1) they were locked into an unfavorable ESPN contract that resulted in less revenue compared to other conferences and (2) the grant of rights contract made them less attractive to the SEC and Big Ten in the creation of super conferences.
In 2023, ACC member Florida State went public with their concerns and openly questioned whether they should stay in the ACC.
On December 21st, 2023, the ACC filed a preemptive lawsuit against Florida State asking a North Carolina court to declare the grant of rights contract valid and enforceable.
The following day, Florida State filed suit in a Florida state court seeking the nullification of the grant of rights agreement.
In conjunction with the ACC’s lawsuit, it filed a motion to seal portions of the ACC’s contracts with ESPN to prevent public dislosure of contract terms.
The ACC contends the ESPN contracts are off-limits because they contain confidentiality provisions and also constitute “trade secrets.”
Importantly, the ACC also said it restricts access to the agreements and will only allow member institutions to view the agreements in-person at the ACC headquarters under supervision.
The ACC asked that unredacted contracts be made available in the litigation only to Florida State’s attorneys, and that the contracts should remain under seal “in perpetuity.”
e. ACC’s Privileged and Confidential Memo in December 2022 to Recalibrate Power 5 Congressional Strategy: “No Texts or Emails”
On December 13, 2022, an ACC attorney circulated a “Privileged and Confidential” memo to conference and institutional stakeholders that laid out Power 5’s new strategy in Congress. The memo identified Power 5 legislative “must haves” that include preemption, antitrust immunity, and no employee status for athletes.
Each Power 5 conference formed a four-member working group’s congressional re-engagement game plan. Ten of the twenty working group members were lawyers and lobbyists.
The working group expressed a desire for a narrow NIL-only bill modeled after Roger Wicker’s (R-MS) proposal, which he rereleased on September 14, 2022.
The Wicker bill is among the most regressive bills proposed in Congress and contains retroactive antitrust immunity for the NCAA and Power 5.
The working group wanted Power 5 reengagement to begin in the House where Republicans control the legislative agenda.
All communications were to run through Jim Phillips, ACC conference commissioner but nothing is to be put in writing - “no texts or emails.
f. “Protective Orders” in Federal Litigation
In federal litigation where the NCAA, Power 5, and their “corporate partners” are forced to produce internal documents and information, their lawyers use every available tool—such as “protective orders”—to prevent public disclosure.
Large corporations routinely file expansive motions for protective orders. Corporations may have a sound reason to protect sensitive information such as legitimate trade secrets; however, protective orders are also often used to prevent disclosure of embarrassing and damaging information and documents or to prevent the public from knowing how powerful corporations conduct their business and decision-making behind closed doors.
In the big class action suits antitrust suits against the NCAA and Power 5, the NCAA and Power 5’s media partners have intervened in the litigation for the primary purpose of preventing the release of their documents and information to the public.
In the pending House litigation—a federal class action antitrust suit involving broadcast NIL revenues—the NCAA, Power 5 conferences, broadcast media companies, and professional sports league associations insisted that their business records and other sensitive documents (as determined by them) be placed under seal to prevent anyone outside the litigation from having access to them.
The judge recently issued an “omnibus” order to seal these records.
The athletes’ attorneys did not oppose the request.
The list is forty-two pages long and contains over 800 entries.
g. The SEC-Big Ten “Advisory Group”
On February 2, 2024, the SEC and Big Ten announced a partnership to collaborate on big-picture issues in college sports, including "pending litigation (particularly House) and the possibility of settling case(s), governance proposals, and state laws.
The partnership came to be known as the “SEC-Big Ten Advisory Group” comprised of key conference stakeholders and decision-makers.
The Big 12, ACC, and NCAA governing boards were not consulted before the Advisory Group was created.
The SEC-Big Ten powerplay fuels speculation that the SEC and Big Ten are planning a departure from the NCAA, but SEC commissioner Greg Sankey and Big Ten commissioner Tony Petitti say that is not their intention.
The Advisory Group operates entirey outside NCAA governance structures and is accountable to no one.
These are just a handful of examples that illustrate an entrenched climate and culture of secrecy in college sports that is reinforced by external regulatory bodies like Congress, courts, and agencies.
Private advocacy groups such as the Knight Commission on Intercollegiate Athletics and the Drake Group have emphasized transparency in their position statements but, to date, have yet to effect change through voluntary action by the NCAA/P5.
The NCAA’s own Commission on College Basketball acknowledged the NCAA’s unique position as the public trustee of college sports. Yet, the NCAA continues to fight transparency initiatives.
Even as the NCAA and Power 5 seek extraordinary federal protections and immunities to shield them from legal and regulatory accountability for their compensation limits, few of the bills currently pending in Congress would require public disclosures that may shed light on the NCAA’s and Power 5’s behind the scenes decision-making.
At the same time, many of those same bills impose burdensome “transparency” disclosures on athletes, agents, boosters, and NIL collectives.
How have the NCAA and Power 5 gotten away with this?
Because they have the best lawyers, lobbyists, and public relations firms in America working round-the-clock to keep the big-time college sports industry out of the sunlight.
It is time for athletes to demand transparency from the NCAA/P5 on their finances, lobbying activities, legal strategies, public relations campaigns, and governance entities’/bodies’ decision-making.
Asking for transparency and accountability shouldn’t be controversial. It is a logical and necessary precondition to an informed debate on the future of college sports.
Transparency is particularly important on financial issues. The NCAA, Power 5, and their corporate partners/investors don’t want stakeholders to know how much money is in the system and how it moves.
Financial transparency would test stakeholders’ narratives that there isn’t enough money to address inequities across the college sports landscape.
