The National Collegiate Athletic Association's (NCAA) Board of Governors unanimously agreed to accept the final recommendations from the NCAA Constitution Committee for a new constitution that will govern college sports. The decision to redraft its existing constitution stems from the NCAA's desire to address criticisms from NCAA student-athletes, their supporters, and the public surrounding its positions on student-athletes' rights to compensation, gender and diversity equity, and its own internal governance structure, among other issues. The new constitution will also streamline and synchronize the various approaches to these issues among its three divisions, which encompass over 350 public and private higher education institutions (Member Institutions), each of which has its own governance manual. Specifically, the constitution explains the NCAA's bedrock principles and establishes broad compliance standards, applicable across all NCAA institutions. If adopted in January as expected, the new constitution will shift power to the three NCAA divisions, which will be responsible for working with their Member Institutions to create their own rules using the framework provided by the constitution (Division Rules).
A final vote on the new constitution will occur at the upcoming NCAA Convention on January 20, 2022, and Member Institutions should prepare for the inevitable changes that will impact their college athletic programs.
What Are the Important Changes in the New Constitution?
The new NCAA constitution will apply to all Member Institutions that are members of one of the three NCAA divisions, and will be included in each of the division's manuals, providing a basic framework for broad, guiding principles for Member Institutions and divisions on the following topics, among others.
Authority and Autonomy of the Divisions and Member Institutions
The new constitution delegates considerable power to the NCAA's three divisions. If it is approved, each division will have the independent authority to organize itself, consistent with the principles of the NCAA. Additionally, each division will be responsible for setting its own standards for student-athlete academic eligibility (for participation in the athletic program), determining its own governing structure and membership, and establishing the division-specific guidelines pertaining to student-athletes receiving educational and other benefits.
Member Institutions will also gain autonomy and incur additional responsibilities under the new constitution. The NCAA explicitly states that the constitution will not prohibit institutions from implementing missions and policies that are consistent with their legal rights and obligations as institutions of higher learning. Member Institutions will be required to monitor and control their athletic programs and provide administrator and staff training to ensure compliance with the Division Rules. In furtherance of this obligation, Member Institutions must monitor whether student-athletes are in good standing per Division Rules, and submit proof demonstrating its compliance with the division's academic program standards. If the new constitution is approved, divisions will work together with their Member Institutions to establish monitoring and reporting standards in accordance with the NCAA's guiding principles.
The new constitution places a substantial emphasis on investing in student-athlete well-being. NCAA Member Institutions will be required to facilitate athletic programs that support student-athletes' physical and mental health by providing administrator and staff training on mental health issues and ensuring access to the appropriate resources on campus or in the local community. The NCAA explicitly states that student-athletes cannot be discriminated against because of their mental or physical health, and all acts of perceived discrimination must be reported by the athletes, administrators, or staff to the Member Institution's faculty athletics representative, the reporting contact independent of the Member Institution's athletic department. Member Institutions that do not currently have a faculty athletics representative will likely be required to hire an individual for this role to comply with the new constitution.
Consistent with the United States Supreme Court's June 2021 decision in NCAA v. Alston, which opened the door for institutions to provide benefits to student-athletes, the new constitution now affirms student-athletes' right to receive benefits from the use of their name, image, and likeness, a notably sharp reversal from the NCAA's long-standing denial of those rights. The NCAA will continue to oppose a "pay-for-play" model in which student-athletes would be treated like salaried employees and paid directly by their Member Institution for participation in their athletic program. The new constitution states that student-athletes cannot be compensated by a Member Institution for participating in college sports. Each NCAA division, however, may establish guidelines that will allow athletes to receive benefits for the commercialization of their name, image, or likeness. In the interest of transparency, Member Institutions will be required to make available to the public their specific policies on name, image, and likeness, including the specific benefits student-athletes can receive.
Diversity, Inclusion, and Gender Equity
The new constitution will emphasize equal access as part of the NCAA's diversity, equity, and inclusion principles. In accordance with the Division Rules, all Member Institutions will be required to promote diversity and inclusion in all areas of college athletics, including sporting events, hiring, professional and coaching relationships, and professional advancement opportunities. The NCAA will also require members to provide administrator and staff education and training with respect to upholding diverse and inclusive college athletic programs.
The constitution also underscores the importance of gender equity. Upon approval of the constitution, the composition of the Board of Governors will reflect both men's and women's sports. Additionally, much like its new mandate on general diversity, equity, and inclusion discussed above, all activities, including sporting events, hiring and advancement practices, and professional and coaching relationships, must be conducted in a manner free of gender bias. This gender equity missive remains separate from the NCAA's diversity and inclusion efforts to give independent attention and priority to each.
What Are the Next Steps?
The Board of Governors' recent approval of the latest constitution draft means that the entire membership will have the opportunity to vote on the final NCAA constitution at the January 20, 2022 NCAA Convention. In the weeks leading up to the Convention, the NCAA Presidential Committee can propose additional amendments for the new constitution to be discussed and voted on at the Convention. Upon approval of the final NCAA constitution, each division must work with its academic institutions to adopt changes to their Division Rules, which will go into effect on August 1, 2022.
Member Institutions should be prepared to collaborate often with their NCAA division leaders to modify their existing athletic program policies to comply with the constitution by August 1. Should your educational institution have any additional questions regarding the new NCAA constitution, please contact the authors of this article or any other member of Venable's Higher Education Group or Labor and Employment Group.
* The authors of this article thank Samantha Furman, law clerk, for her assistance in its preparation.