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If there is any chance for real reform in college sports, it will have to start with autonomy for the largest, most well-resourced programs.

Throughout its history, the National Collegiate Athletic Association has been slow to divide and subdivide as the landscape of college athletics has changed dramatically.

At its inception in 1906 and for decades after, there was a one-size-fits-all NCAA. There also was very little money in college athletics. Then the money started rolling in, primarily generated, and retained, by the major football powers, programs that currently are grouped in the four power conferences—the Atlantic Coast Conference, Big Ten, Big 12 and the Southeastern Conference. A cacophony of criticism erupted, and grew, centered on these programs for their perceived unfair treatment of college athletes as well as their exclusion of athletes, aside from athletics scholarships, from the money being generated. The major football powers pushed the NCAA for greater authority to respond to the criticism by adopting bylaws specific to them for how to run their programs and how to spend their money. A one-size-fits-all NCAA meant that lesser-resourced institutions could block policies too costly for them to implement.

In 1977, the College Football Association, comprised of most of the major football powers, formed to negotiate its own media deal for college football; many expected the CFA eventually to break from the NCAA. Instead, the power conferences reaped their own revenues and became even more powerful, but separately. The result: conference realignment that continues unabated today. The NCAA also divided and subdivided, at a painstakingly slow pace, to give the major football powers greater—but only incrementally greater—autonomy.

1973 brought three NCAA divisions; 1978 brought what’s now known as the Football Bowl Subdivision (FBS) in Division I. In 2013, the NCAA again addressed the need for the best-resourced institutions to act independently. At that time, the 1A FAR Board of Directors, representing the Faculty Athletics Representatives (FARs) from institutions in the FBS, advocated for a separate, self-governing subdivision for them. As the Board articulated, because the new division would be smaller than the current FBS, it could involve more senior-level campus administrators and FARs in policy development. Because it would include institutions with comparable revenue streams that faced issues unique to them or that fell on them with more acute impact, it could achieve substantial reform not possible in the FBS, or at least not possible in a workable time frame given the onslaught of changes pushed by external pressures.

Instead, the NCAA chose, once again, to opt for incremental change. The best-resourced institutions were given independent authority in limited areas, authority they promptly exercised to increase the amount of an athletic scholarship to cover the full cost to attend an institution and also to provide enhanced medical services and insurance to athletes. They did not have authority, however, to restructure the amateurism model to a 21st-century reality or to open opportunities for college athletes to earn revenue from their name, image or likeness (NIL).

Criticism increased and became more strident. Litigation ensued. State legislatures got involved. Congress held hearings. Ultimately, the NCAA suspended bylaws prohibiting athlete NIL deals and also authorized Division I to create a new division, authority Division I has to-date failed to exercise.

With little regulatory structure, the Wild West erupted. We agree with Dean Smith, the former head men’s basketball coach at the University of North Carolina, who observed that college athletics might be “the front porch of a university, the most visible part, but that it should not be the most important.” College athletics is competition engaged in by college students. It marries the academic with the athletic. The current drivers of college athletic reform, however, coming from outside the higher education sector, leave little room to preserve the primacy of a student’s academic experience or the values of higher education.

Now, again, the NCAA is set to consider autonomy for the best-resourced institutions. NCAA President Charlie Baker has advanced a “conversation starter” to create a separate self-governing subdivision for them—similar to the idea that the 1A FAR Board pushed for ten years ago. The NCAA is expected to vote on a new divisional structure in January 2025.

Even now, with faculty, athletic administrators, coaches, and some media representatives and fans decrying the current situation, at least for football, there are obstacles to establishing a needed paradigmatic shift. The major impediment has been with us all along—the resistance of lesser-resourced institutions to a division that excludes them. There is cachet to being included with the major football powers. There also are more revenue opportunities. Currently, for example, a lesser-resourced university in the FBS still makes more money than Division I universities outside it. So, many universities expend beyond realistic budgetary thresholds to try to keep up. Universities that fall behind or attempt to reclassify out of the FBS meet major pushback from fans and donors.

A considerable hurdle to establishing a new division, and one that killed its creation a decade ago, is the men’s basketball tournament. The tournament is open to all comers in Division I, and that is part of its charm and popularity. It produces the great bulk of all NCAA revenues, shared with all NCAA institutions but on a formula that greatly favors Division I. It also produces additional revenues for a university with a team that competes in the tournament, with increased payout the further a team proceeds. A separate division may upend the current revenue formula for Division I institutions. It also very likely will provide more benefits to the new division’s athletes, further increasing the talent advantage of the best-resourced institutions and lessening the possibility for a Cinderella team to advance far into the tournament.

Baker’s proposal suggests a minimum requirement for eligibility in the new subdivision: “within the framework of Title IX,” each division member must provide at least $30,000 per year in an educational trust fund for at least 50 percent of its students. Although undefined, a trust fund for educational purposes is both athlete-friendly and consonant with the academic missions of our universities, and we would like to see as many colleges as possible establish one. We doubt, however, whether it’s the right approach as the sole criterion for membership in a division of high-resourced institutions. The threshold is substantial, but medium-resourced institutions still might stretch their resources to reach it. They might cut sports and opportunities for athletes, which would be deeply unfortunate. A better approach is simply to set a budget threshold for inclusion that could be adjusted upward over time. Baker noted that 59 Division I institutions spend more than $100 million annually on their athletics programs. We’re not saying that’s the magic number, but we think that some such threshold is needed for the new subdivision to succeed.

A properly constituted new subdivision will bring to the table institutions with similar resources facing similar issues. It is naïve to believe, however, that the subdivision will be able to easily achieve reform. Our personal experience in NCAA and conference governance tells us there will be issues on which even higher-resourced institutions may and likely will disagree. For example, should institutions share revenues with their athletes? Should any revenue distribution be allocated based on the revenue a sport produces? If so, then football players will be the prime beneficiaries. Title IX requires that institutions provide educational benefits on a proportional basis to male and female athletes. Is revenue distribution an educational benefit? Should there be continued efforts for congressional relief from antitrust lawsuits? How litigation-averse should the division be in adopting bylaws?

Nonetheless, no viable reform appears possible unless a new subdivision is created. It is an idea well past its time, and we applaud Baker for taking the first step. But we also think the NCAA’s approach is, once again, much too slow. It should not take until January 2025 just to create the subdivision. The Division I Board need only embrace—finally—the concept of a new subdivision and set the criteria for entry. At that point, the new subdivision needs to get to work—quickly.

As former members of the Division I Governance Council, we understand the value of full discussion with all perspectives represented. As law professors we understand that inclusion of disparate voices brings buy in. But the forces that have brought on the Wild West will not stop while the NCAA proceeds, with all due deliberation, to come up with a plan. Hindsight is 20/20, but we believe that adoption in 2013 of our proposal for a new division would have avoided some of the excesses of the current situation—for example, unlimited transfer opportunities that increase the likelihood that an athlete will not graduate and that also disrupt team dynamics. A new subdivision can adopt bylaws to bring order out of the chaos. Its bylaws can reset college athletics for a 21st-century reality, but in a way that preserves the marriage of academics with athletics. Let’s get this done now. Not doing so could very well result in a complete breakaway by the Power 4 conferences and their member institutions.

Josephine (Jo) R. Potuto is the Richard H. Larson Professor of Constitutional Law Emeritus at the University of Nebraska College of Law. She was Nebraska’s NCAA Faculty Athletics Representative for more than twenty years, served on numerous NCAA committees, including the Division I governance Council, and is a past chair of the NCAA Division I Infractions Committee.

Brian Shannon is a Paul Whitfield Horn Distinguished Professor at the Texas Tech University School of Law. He has been Texas Tech’s NCAA Faculty Athletics Representative since 2008, and has also served on an array of NCAA committees, including the NCAA Division I governance Council.

Both are past presidents of the 1A FAR.

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