One of the core tenets of the American political system is the idea of federalism. Among other definitions, federalism means:
A system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces).
In the United States, federalism exists due to the enumerated powers of the federal government. That is, the Constitution includes a list of subjects on which the federal government may legislate. Anything not on that list cannot be regulated on the national level, but must instead must be legislated by the individual states. There’s a rich debate to be had over whether this still exists in practice, but the theory is important here.
The NCAA has this basic setup. There is a federal government (the national association and office) and a set of 30 states (the conferences). The conferences select representatives to various national groups (Legislative Council, Leadership Council, Board of Directors, etc.) who then are charged with defending their interests while keeping in mind the needs of the national association.
The major difference between the United States and the NCAA is that the NCAA does not have enumerated powers. Any topic can be (and it seems always is) regulated at the national level. The conferences legislate on topics that either the members haven’t gotten around to legislating nationally, or because a conference wants a stricter rule than the national one.
This has come to a head with the SEC’s decision to limit oversigning in football. The SEC chose to base their oversigning limits on the annual limit of 25 initial counters. This is in contrast to the Big Ten, which focuses on the annual limit of 85 overall counters.
Opponents of oversigning have jumped on this conflict and the SEC’s decision to propose national oversigning rules as an opportunity to move the entire debate to the national level:
The NCAA has an obligation to create national rules on oversigning that make it clear that hoarding players and playing games with the numbers to gain a competitive advantage through highly unethical behavior has no place in the sport they regulate, that every recruit and current player IN EVERY CONFERENCE will be protected from forced attrition, and that every conference competing for BCS bowl spots and the money that comes with it will be on equal footing when it comes to the number of players they can recruit and sign.
To the extent that there is a baseline student-athlete welfare issue with national impact, the issue demands legislation on the national level. In my opinion, that issue surrounds the limit on 25 initial counters.
Why? Because when a coach signs the 26th prospect to a scholarship for the upcoming academic year, he has promised the prospect something it is impossible for him to provide. The coach either must yank the rug out from under one of those 26 young men or the balance between what a prospect promises and what the coach/institution promises (already an issue of intense debate), tilts exclusively in the coach’s favor.
When a coach signs the expected 86th prospect/student-athlete for the upcoming year, he has promised something that he may be able to provide without impacting student-athlete welfare. Even if a program is expected to return all 85 scholarship student-athletes, theoretically it could sign 25 players and enroll them all without doing anything nefarious. In practice, that is unlikely to be the case.
This disconnect between theory and practice is better legislated at the conference level. Far from ensuring the SEC maintains a competitive advantage, it offers a chance for conferences to create their own competitive advantages. While some may call it negative recruiting, there’s nothing morally wrong or impermissible about informing prospects and their parents/guardians that one conference offers more protections to student-athletes than another.
If that idea gained traction, it could turn around the race to the bottom. Imagine if conferences got creative:
- A rule that allowed for an appeal to the conference office when a scholarship is cancelled or not renewed.
- A rule requiring conference schools to renew scholarships within the first week of school, almost creating two-year scholarships.
- A rule limiting the ability of conference schools to refuse permission to contact other schools under certain conditions
If every change is quickly reduced to a national rule, there is no way for conferences to differentiate themselves. And with the passage of Connecticut House Bill 5145 to go along with California’s AB 2079, we’re getting close to providing prospects with the tools necessary to make an informed choice between these different options.
We don’t find it to be a problem if one state has lower taxes but another state has cheaper health care and better roads. Both are taking different approaches to the same goal: attracting people and businesses. Solve the baseline national problem, and then give conferences the incentive to develop more student-athlete friendly rules.
The opinions expressed on this blog are the author’s and the author’s alone, and are not endorsed by the NCAA or any NCAA member institution or conference. This blog is not a substitute for a compliance office.