Kick the NCAA, Athletic Depts and Coaches Out of Academics: Revoke Players’ FERPA Waivers


Most NCAA critics insist that the NCAA needs to be much more vigilant about overseeing player and school academic performance. They have it upside down. The NCAA, school athletic departments and coaches all need to be completely removed from any academic oversight or even access. This is consistent with the NCAA current de facto primary role as Central Sports Business Manager, and also consistent with the vigorous player academic privacy protections established by the 1977 FERPA statute.

NCAA’s Founding Mission Was Player Safety: Back in 1905-’06, the NCAA was founded due to intense pressures all around, to make drastic changes to improve college football player safety. (That was the only football back then — there were no ‘pro’ leagues.) The preceding ‘flying-wedge’ decade had mauled and killed too many. President TR wielded his big stick (probably because his son had had his football nose broken at Harvard, and his Stanford nephew had two football leg breaks), and directed that the Big Three (Harvard, Princeton and Yale — sort of the Alabama, LSU, OSU of that day) lead the way toward the NCAA’s formation. And the explicit primary mission of the new outfit was to protect the “welfare” of the athlete. (They didn’t have ‘student-athletes back then, since the NCAA hadn’t yet entered the propaganda business.)

NCAA Adopts Home Rule as Its Operating Principle: But the new NCAA had a problem attracting members. So they quickly landed on the same solution that the AARP arrived at almost a century later: demand nothing of your member, except a small financial contribution and — whatever you do — insist that you will do nothing to interfere with the member’s daily life or, god forbid, autonomy.  That way, your membership will grow, as the NCAA’s did, and as AARP’s has. You can see the NCAA’s devotion to this Home Rule doctrine expressed repeatedly during the NCAA first two decades: an important early ’20’s document, for example, insisted that members abide by 10 rules — but the tenth rule was, basically, that the member school could create and abide by whatever rules it wanted. Home Rule, indeed.

Now, the Home Rule Doctrine is Applied by the NCAA Only When It Needs to Protect Its Tsunami of Cash: Fast forward now, 100 years later, and you will see the thoroughly mercenary NCAA careening back and forth, up and down, and all around this Home Rule doctrine. It’s hard, if you’re one of these modern-day Pharoahs of College Sport Business Management, to remember where you left your principles. Or if you ever had any.

The NCAA now invokes the Home Rule doctrine, not because of devotion to the principle, but just to help it maintain unobstructed and unregulated control over its tsunami of cash. Here is the primary example:

The NCAA Applies Home Rule to All Issues of Player Health and Safety —  The NCAA Has Had to be Dragged, Kicking and Screaming, to Pay Any Attention to Player Safety: For example, though the NCAA’s founding rested upon its primary mission of protecting the health and safety of the player, the NCAA now has to be dragged, kicking and screaming, to have anything to do with player safety. There was no NCAA medical director until three years ago. (And Medical Director Hainline’s recent assertion that his primary concern is player mental health would make me very concerned about his own mental health, were it not for the fact that this claim by Hainline fits very nicely with the NCAA lawyer’s instruction to him that, whatever you do, Dr. Hainline, do not go anywhere near standard-setting for concussions or other player on-the-field safety issues.)

The NCAA’s ‘hands-off’ Home Rule approach concerning player safety is a carefully crafted strategy to avoid legal liability for player injuries. The NCAA does not want a court dictating that, for example, a group or class of players or ex-players must be paid a substantial portion of the $1 billion dollars of annual NCAA income. As a result, it has followed its lawyers main advice:  do not set safety standards at the NCAA level, and do not collectively monitor or study safety issues, because those activities will only lay the groundwork for some allegation that the NCAA negligently set or applied such standards. Stay away, is the lawyer’s message — but continue keep mouthing the refrain about the NCAA’s alleged primary concern for the ‘welfare’ of the student-athlete’.

The advice is, in many respects, good legal advice. It just lacks any moral foundation, and directly violates the sole reason for the NCAA’s original founding. And the NCAA Pharoahs have slavishly followed this advice. As an example, look at the bizarre statement two years ago by the now-retired, but very clever, Mike Slive, of the SEC:  “We need to look closely at the NFL’s concussion-management practices” (!)  Home Rule, indeed, but hardly the words of a zealous protector of college player safety.

But the NCAA Rejects that Same Home Rule Doctrine When it Comes to NCAA Monitoring of Academic Standards and Performance:  Contrast this with the NCAA’s approach to academic oversight, whether monitoring APR, investigating courses and professors and grades at specific schools, or the long list of other academic topics which the NCAA purports to need to regulate. If the NCAA applied  ‘Home Rule’ in this area, it would have nothing to do with investigating or regulating individual school academic performance.

But although the NCAA has no business regulating individual school (or player) academic performance, such regulation helps the NCAA maintain the twin fictions that the student-athlete must be a student, and that he cannot be an employee because he is a student!

But The Entire NCAA Academic Monitoring Program Depends Upon a Forced Player Waiver of FERPA Privacy Rights: In summary, if safety oversight and monitoring is none of the NCAA’s business, then neither is academic monitoring.

But here’s the nub: the only reason the NCAA (and school athletic departments) can pragmatically have any role in academic oversight is that the player is forced to sign a FERPA waiver as a part of the (deceptively titled) ‘Student-Athlete Statement’ he is handed to sign before he initiates play each season. The 1977 FERPA statute reflects a federal mandate that all ‘educational records’ for each student must remain strictly and completely confidential. It works from a fundamental ‘Home Rule’ premise: the individual student ‘rules’ his academic ‘home,‘ and that ‘home’ must be kept very private.

The Player Has the Power to Bar Coach and NCAA Access to His Academic Records: Without the FERPA waiver which the player is forced to sign, both the athletic department and the NCAA would be forbidden to have any access to the player’s educational records. (Such “records” are defined very broadly by the statute.) In other words, if every player, come August 2015, refuses to sign that FERPA waiver, the NCAA — and, in most cases, the individual school’s athletic department — would have no access to any academic information concerning any student, and the NCAA’s oversight would grind to an immediate halt.

In this upside-down modern NCAA, then, the NCAA’s primary interest is in maintaining its control and power over the distribution and use of the tsunami of cash with which it has been flooded over the last two decades. To protect that interest, it chooses to apply Home Rule to leave safety topics to each member school — even though player safety was the NCAA’s first and primary function. And it then selectively chooses not to apply the Home Rule doctrine to allow its seizure of authority to actively monitor and collect data about player academic performance — even though neither the NCAA or the coaches have any legitimate academic function.

Obviously, collective revocation of FERPA authorization by all players is unlikely to occur, at least in the short term. But at least ponder the potential outcome: all schools would be left alone by the NCAA, and would repeatedly ‘cheat’ — just the way UNC has cheated for many years — on issues of player academic compliance and performance. More to the point, if the revocation of FERPA authorizations also barred coaches and athletic departments from any access to, or involvement with, player academic performance data, oversight and jurisdiction over those academics issues would revert to faculty and administration — where it belongs.

This would help end the academic charade by making plain to all that, as regards big-time revenue-producing players,their role as students is purely secondary, and that their status as students should not prevent them from being paid for their role as performers within those grand ‘institutional advancement’ tools —  football and basketball —  which are a central part of — not the academic, or even athletic departments — but the school’s development department.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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