The Drake Group finds that The Independent Commission on College Basketball missed an opportunity to recommend comprehensive reform

The Drake Group (TDG), whose mission is to defend academic integrity in higher education from the corrosive aspects of commercialized college sports, found, in response to the recently released report by the Independent Commission on College Basketball chaired by Dr. Condoleezza Rice, that the Commission got some things right, but missed the mark on several key issues regarding reform in college sports.

First, we absolutely agree with the Commission that an elite athlete should have choices for competition and development beyond the educational space if that is an athletes’desire. We also strongly support a change in the NBA’s age limit restriction on NBA draft entry as well as allowing elite basketball athletes the opportunity to test the waters of the NBA draft and seek advice from agents without losing NCAA eligibility. TDG strongly believes that elite development opportunities should exist outside of intercollegiate athletics and that professional leagues have an obligation not to impede that effort. Should athletes be good enough to go professional, they should be allowed to do so at a time that is best for them. Also, if athletes want to attend college they should be allowed to do that for as long or short a time as they desire just as other non-athlete students have such options. An important caveat is that colleges should enable athletes to be real students with access to a quality education rather delivering a sham alternative solely designed to maintain athletics eligibility and imposing excessive athletics time demands that make it virtually impossible to fulfill academic demands.

TDG also believes the Commission was on point asking for a complete overhaul of the broken NCAA enforcement and infractions system along with advocating penalties that actually punish and deter future bad behavior. TDG and other groups have long critiqued the insular and limited NCAA enforcement and adjudication process as a facade of governance rather than a process in which unbiased investigators and adjudicators execute real enforcement and effective penalties. TDG has long supported the overhauling of this area. For example, current Drake Group president B. David Ridpath recommended these independent investigator/adjudicator changes to a congressional sub-committee in 2004 and TDG released a position paper on this very topic outlining exactly how these changes could be implemented. We urge the NCAA to immediately adopt an independent form of enforcement and infractions for serious rules violations.

Other positives of the Commission report include requiring the certification of agents and reforming the sordid world of non-scholastic youth basketball. However, the Commission has not gone far enough. Although the Report correctly emphasizes the value of a college education and the necessity of it remaining the priority, the Commission only addressed academic integrity in the context of fraudulent coursework and the ill-conceived notion of institutional self-policing. It did not acknowledge the far more widespread practice of institutions turning a blind eye to normal athletic departments practices designed to keep athletes eligible through selection of less-demanding majors, easy (or fake) courses, and friendly professors, rather than provide a real education. Transparency and oversight by every institution’s faculty senate in this area would go a long way toward showing that institutions are committed to providing a legitimate education. TDG also believes for any substantive college sports reform in the educational context any oversight body should have faculty representation. That did not exist on this Commission and we consider that a significant, but hopefully not purposeful, omission by the NCAA.

The biggest miss was the Commission’s failure to make a recommendation on allowing athletes to earn money outside their participation in intercollegiate athletics via being allowed to market their own names, images and likenesses (NILs) and how such freedom might address some of the corruption and scandal at issue. The Commission avoided this opportunity because it believed it needs first the “legal parameters [to] become clearer.” TDG believes failing to allow athletes to exploit their own NILs with strict controls was a missed opportunity. Courts decide cases based on specific and relatively narrow sets of facts and we believe the courts are not the proper place to make meaningful and appropriate decisions generally about amateurism.

Indeed, the O’Bannon case in the Ninth Circuit recently decided on the proper antitrust framework -the rule of reason–for the payment of NILs to athletes. Significantly, the Chief Judge in that case noted that the Ninth Circuit’s decision was limited to the facts at hand, stated that “the national debate about amateurism in college sports is important. But our task as appellate judges is not to resolve it. Nor could we..” The Supreme Court, despite petitions for certiorari by both sides, declined to review the decision. Other cases concerning payment of athletes exist in courts throughout the states and 12 federal regional circuits. Waiting for the courts to develop clarity is risky and likely to be frustrating. Courts decide cases on specific, relatively narrow sets of facts. As a result, absent an overarching Supreme Court decision, which is by no means assured, a clear judicial resolution of the athletic compensation issue could be a decade or more away.

The NCAA needs to do its job which is to establish broad amateurism policy based on a thoughtful analysis and considering all stakeholder interests. Quizzically Dr. Rice, in her remarks accompanying the Report’s release, did not shy away from discussing the NIL and compensation matter issues, saying that “for the life of me I don’t understand the difference between Olympic payments and participation in Dancing with the Stars–and what can’t be allowed . . . .” She pointed out that most Commissioners believe that the NIL rules should be taken up as soon as the legal framework is established. We say, “Why wait?” The Drake Group has proposed a very specific framework for how to handle NILs in its position paper on that issue including calling for athlete reporting, conformance with marketplace value, no involvement of institutional representatives and other controls. To restrict athletes’ outside income while enriching coaches and athletic directors and allowing institutions to build lavish facilities that aid recruiting, but lack educational value, yet failing to meet athletes’ basic medical and insurance needs invites accusations of exploitation and perpetuates under-the-table payments.

Lastly, The Drake Group believes the Commission missed the opportunity to identify and address other significant athlete benefit problems. With few exceptions, athletes or their families must pay for their own athletic injury insurance. There are no long-term medical guarantees except for catastrophic injuries. It is this imbalance of who is actually benefitting from the athletics revenues largesse that produces public sympathy for even illegal athlete compensation. It is this system that must be addressed and we believe the Commission should continue its work to try to do so.

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