Talk of a Division IV? No matter what, current structure must change

Friday May 30th, 2014

Univ. of Florida president Bernie Machen said athletic departments are between 'a rock and a hard place.'
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DESTIN, Fla. -- University of Florida president Bernie Machen is leaving office in December. As a result, the number of flips he is required to give when speaking publicly is rapidly approaching zero. His circumstances -- combined with a natural propensity to say what's on his mind -- mean he isn't required to spew the same platitudes as his counterparts regarding the wealthier schools' push to loosen the NCAA's governance structure. Machen explained on Friday why the five power conferences need more autonomy, why he's worried they won't get it and why things could get very messy if they don't. Then, minutes later, SEC commissioner Mike Slive fired a shot across the bow of the less wealthy schools by raising the specter of an NCAA "Division IV" made up exclusively of schools from the five wealthiest leagues.

Having sensed pushback from leagues outside the ACC, Big 12, Big Ten, Pac-12 and SEC toward those conferences' effort to create rules for their particular income bracket, Machen spoke plainly about the wealthy athletic departments being "between a rock and a hard place" with lawsuits on one side and less wealthy athletic departments on the other. On the day the SEC announced a record annual revenue split ($309.6 million, up from $165.9 million in 2009 and $4.1 million in 1980), Machen warned that if the big schools don't get the flexibility they want to make more permissive rules regarding spending on athletes, pending litigation could decimate the business model of major college sports.

"We've got these lawsuits coming down the pipe at us," Machen said. "If we don't get it, I think there will be some real difficult times ahead for the NCAA and for the five conferences. What's interesting is the NCAA needs this to work as much as we do."

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Let's get one thing straight right now: No one is being altruistic here. The wealthy conferences want to give athletes more scholarship money, long-term healthcare and better opportunities to return to finish degrees because those schools are being sued to the hilt in federal court. These schools want to protect their business model, and the people getting rich off this system want to keep as much of their money as possible while also remaining legally compliant. Former UCLA basketball player Ed O'Bannon's lawsuit against the NCAA is set to go to trial on June 9 in Oakland, Calif. No matter the verdict, that case could be appealed to the Supreme Court. Its impact won't be immediate, but if the NCAA ultimately loses, it would essentially be illegal for a collegiate governing body to sell a television broadcast without directly compensating the athletes for the use of their names and likenesses. For a group of 14 university presidents who will become cable programmers when ESPN's SEC Network launches on Aug. 14, that's a daunting prospect. To collect, someone would have to directly sue the SEC -- or the Big Ten or Pac-12 -- to challenge that practice.

Well, someone already has. Jeffrey Kessler, the attorney who argued the case that led to NFL free agency, rounded up several players as plaintiffs and filed an antitrust suit against the NCAA and the five wealthiest conferences in March. Meanwhile, if the National Labor Relations Board upholds a regional director's ruling that Northwestern football players are employees, all schools -- not only the private institutions directly impacted by the ruling -- would face an entirely new business model.

Mike Slive and the other power-five conference commissioners want autonomy from the NCAA.
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The people in charge don't necessarily want to change, but they understand public opinion shifts with every new revenue distribution announcement and television rights deal. The public used to be squarely on the side of the schools. Now, favor has shifted toward the athletes. The wealthier schools want to make rules that allow them to satisfy that societal shift before things get even more expensive.

"It used to be that the focus was on equity. The whole system of NCAA regulation is really just about making sure that every institution that competes in D-I has essentially the same equity situation," Machen said. "The switch now is toward welfare. There are a lot of people who think that we have taken care of our coaches, we have taken care of our facilities, but we have done nothing for our athletes in 20 years that they didn't have before."

The five wealthiest conferences can't do anything to settle these lawsuits without breaking existing NCAA rules. If they lost, they wouldn't have the structure in place to adjust. That's why they have to change. They don't want to leave the NCAA. They say they like the current Division I model and the current cash cow of a men's basketball tournament. The cynical among us might also mention they like being tax-exempt; an organization made up solely of those five conferences might not be. But no matter the reason, the wealthy schools have no choice but to seek flexibility any way they can. So, when an SEC school president reads something like the op-ed Boise State president Bob Kustra wrote recently, it might naturally ring some alarm bells.

Leaders of the five wealthiest conferences have worked for almost three years to change the NCAA's governance structure. They seemed to make some headway after vaguely threatening last July to take their lucrative basketball tournament and trickle-down college football postseason and go home. Every time negotiations for their autonomy plan hit a pivot point, they don't seem afraid to remind everyone to play by the Golden Rule: He who has the gold makes the rules.

In December, Big Ten commissioner Jim Delany sounded a lot like Machen and Slive did on Friday. "We need some regulation, but it's got to be sensible," Delany said six months ago. "It's got to be flexible, and it's got to acknowledge differences in resources. If we do that, I think we can stay together. ... If we can't do that I think we have to say we have not only external threats, we have internal threats. And the internal threats are that we can't find a way to use the NCAA as a town hall for us to solve our problems."

If the five power conferences don't get what they want with regard to autonomy, they're threatening the formation of new division within the NCAA. Why would any of the other schools vote to allow that? Because the other Division I schools still rely on the generosity of the five power conferences for not-insignificant portions of their athletic budgets, thanks to the football postseason (for the rest of the FBS) and the men's basketball tournament (for all of Division I). "If [the autonomy plan] doesn't pass, the next move would be to go to a Division IV," Slive said on Friday. "It's not something we want to do."

What exactly do the five power conferences want? Warning: Boring NCAA governance stuff ahead. The current proposal calls for a council of presidents and athletes to vote on rules that would apply to the five power leagues but could also be applicable to the rest of Division I if those schools chose to adopt them. Hypothetically, the five power conferences could vote to allow schools to offer a stipend of up to $5,000 more than the cost of tuition, room and board. It wouldn't be required, but it would be allowed. At issue are how many votes it would take to pass such a rule. The less wealthy schools want a significant supermajority -- as many as three-fourths of the votes and a majority in four of the five conferences in agreement -- to pass a rule. The SEC countered on Friday with a proposal that would allow a rule to pass with 60 percent of the vote and a majority in three of the five conferences.

"If [the autonomy plan] doesn't pass, the next move would be to go to a Division IV," Mike Slive said. "It's not something we want to do."

"The bar ought to be high," said South Carolina president Harris Pastides, a member of the NCAA board of directors and a member of the steering committee working on the autonomy plan. "It shouldn't be 51 percent. It shouldn't be easy. Having said that, it can't be 95 percent."

The NCAA board is scheduled to vote on the autonomy plan in August. It must then be approved by the majority of Division I members at the NCAA convention in January.

Why would the rest of Division I approve such a move when it would almost certainly widen the gulf between the haves and have-nots? Because, Machen said, that gulf isn't going anywhere no matter how many rules the less wealthy schools propose. "Those are real concerns," Machen said. "But tell me how you get around them. I think Florida has a competitive advantage right now. We get to live in Florida. That's an advantage right away."

No matter how you might feel about 1,000-percent humidity or mosquitos the size of airplanes, Machen is fundamentally correct on that point. New Mexico will never have the fan base or revenue-generating power of Alabama or Ohio State. That's not a knock. It's a fact. Neither, for that matter, will Mississippi State or Minnesota, despite those schools' inclusion in the big-money club. Someone will always have more, and someone will always have less. The sooner schools figure that out when deciding NCAA issues, the better.

But if the less wealthy schools fighting the rich ones' power play have any better ideas, Machen is open to hearing them. "The whole thing could go up in smoke if the lawsuits come down, if the unionization ruling is upheld," he said. "The whole intercollegiate model is at risk. If they don't want to do this, it seems to me that it's incumbent upon them to come with something that will help us get out of this box."

And if no one comes up with a workable idea? "You tell me," Machen said. "It would look like a meltdown."

At such a point, Slive, Delany and power five counterparts John Swofford, Bob Bowlsby and Larry Scott would have to come up with a Plan B rather quickly. Slive said he would rather not, but he will if necessary. "If in August the board rejects the steering committee's recommendation," Slive said, "you should call me up."

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