When it comes to the decisions to suspend, amend, or fully continue fall sports in the midst of the COVID-19 pandemic, the echoes of history are too loud for the NCAA and its member schools to ignore. Those who advocate for games to happen are not only tossing aside the final vestiges of the NCAA’s founding purpose—enhancing the safety of college sports—but also possibly tearing down many protections collegiate athletics has earned in the court of law over the past 70 years.
There’s no question that since its founding in 1906, the NCAA’s purpose has evolved into being the marketing arm for intercollegiate athletics while concurrently acting as the central authority for interpreting and policing rules that govern college sports. On occasion, the NCAA has defended in courts its membership against malpractice from outside and inside its organizational structure. And in some instances, the governing body’s well-established legal umbrella has shielded its member conferences and institutions from taking on considerable liability, thereby keeping the labor costs from the production of dangerous games at a minimum.
Contingent on whether on-campus, undergraduate instruction is held or not, the interests of the NCAA and its membership could be at issue with regard to a 2020 football season, as each side represents a difference in the perception of how costs and benefits accrue through time. Major conference commissioners and university presidents represent the short-run crowd who see the chance at generating revenue soon, despite urgings from the most important public health officials to tread very carefully when it comes to the reintroduction of sports competitions in the pandemic world.
Put simply, athletic departments possess a financial interest in competition this fall, given that approximately half of its revenue comes from football. On the other end, the NCAA holds tight to the line it’s fastened in the courts over decades, fully aware that falling into the temptation to allow football—absent a school’s student body—could make moot the view of college sport the organization has defended and, perhaps, finish its regulatory responsibilities completely.
On May 12, the California State University system announced its intention to instruct the fall semester online. Yet one of its members, San Diego State University, plans to play a full football season and return its student-athletes to campus. If other universities elect to forgo regular on-campus instruction and go rogue like SDSU, permitting athletic competition despite the student’s body’s absence, those schools must carefully consider the long-term impact of their decisions in terms of helping maintain the order the NCAA has crafted over the past 70 years. Courts might not view favorably any fissure in the consistency of the way the governing body operates.
This conflict between the NCAA and its members could play out in a number of ways, but the simple reality is that the NCAA will feel immense pressure to penalize members that violate this fundamental procedural rule of college sports. The bluntest action the NCAA could take would be to order a school not to play football, thereby creating a standoff that could lead to a school getting kicked out of the NCAA, temporarily or otherwise. If the governing body chooses to protect its standing in the court of law and penalizes too many high-profile teams, it risks an outright mutiny. Notably, these teams drive television ratings—and therefore television revenue—for the NCAA Tournament each March. So if these schools want to form another tournament after a sanction, the NCAA’s very existence would be in doubt because 85 percent of its operating revenue comes from selling the television rights to the Tournament.
At this point, the ball is in the schools’ court. Leaders from many member schools face the difficult decision of playing football in the fall. Doing so puts financial bandages on budgets, but at the cost of tremendous risk increases from negative public health outcomes and new long-term uncertainty in terms of the legal interpretation of their actions. Like many entities, the pandemic has forced the NCAA into an existential crisis. How it handles its membership’s decisions will determine not only the legal system’s view of the governing body’s operating procedures but ultimately its very existence.
Kyle Tatich is a second-year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in Economics with Politics & International Affairs from Wake Forest University and served as a University Fellow in the Department of Athletics during the 2018-2019 academic year. Upon graduation, he intends to practice transactional law.