NCAA Enactment of a Disciplinary Policy: Uniformity to Regain Institutional Legitimacy

Loyola of Los Angeles Loyola of Los Angeles

Entertainment Law Review Entertainment Law Review

Volume 44 Number 3 Article 2

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NCAA Enactment of a Disciplinary Policy: Uniformity to Regain NCAA Enactment of a Disciplinary Policy: Uniformity to Regain

Institutional Legitimacy Institutional Legitimacy

Matteson Landau

Pepperdine University Rick J. Caruso School of Law

, [email protected]

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NCAA Enactment of a Disciplinary Policy: Uniformity to Regain Institutional Legitimacy

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Legitimacy Legitimacy

Cover Page Footnote Cover Page Footnote

Matteson Landau, J.D. 2024, Pepperdine Caruso School of Law; B.S. Sport Management/B.B.A. Marketing

2020, University of Texas at Austin. I would like to thank Professor Maureen Weston and Professor Joel

Johnson for their encouragement and assistance in drafting and improving this article.

This article is available in Loyola of Los Angeles Entertainment Law Review: https://digitalcommons.lmu.edu/elr/

vol44/iss3/2

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163

NCAA ENACTMENT OF A DISCIPLINARY

POLICY: UNIFORMITY TO REGAIN

INSTITUTIONAL LEGITIMACY

By Matteson Landau

This article examines issues surrounding decentralized disciplinary

systems and inconsistent enforcement against student-athletes who engage

in criminal misconduct across the National Collegiate Athletic Association

(“NCAA”). The NCAA recognizes the inherent conflicts of interest that arise

when institutions are left to regulate their own recruiting practices. To negate

these conflicts, the NCAA has established a robust disciplinary system, the

NCAA Committee on Infractions, which oversees investigations into viola-

tions of NCAA Bylaws, reviews materials provided by the athlete and/or in-

stitution, and issues binding rulings which may include suspensions and

fines. Yet the NCAA fails to see how the same conflict issues arise when

schools are left in charge of investigating and imposing suspensions or dis-

ciplinary measures on their own star student-athletes for violating the law.

While some institutions implement policies to ensure fairness, others deal

with criminal misconduct allegations on an ad hoc basis. The resulting patch-

work system of enforcement creates loopholes in which athletes can transfer

from school to school to avoid appropriate punishment. This article argues

that the NCAA has the knowledge and resources necessary to implement a

centralized disciplinary enforcement policy. Such a policy would absolve in-

dividual institutions of the responsibility to issue fair discipline despite ad-

verse incentives. Furthermore, stepping into a new area of regulation pro-

vides an avenue for the NCAA to remain relevant in an era of increasing

conference autonomy, expiry of amateurism, and an ever-shifting college

athletics landscape.

Matteson Landau, J.D. 2024, Pepperdine Caruso School of Law; B.S. Sport Management/B.B.A.

Marketing 2020, University of Texas at Austin. I would like to thank Professor Maureen Weston

and Professor Joel Johnson for their encouragement and assistance in drafting and improving this

article.

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164 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................. 165

II. THE CURRENT MODEL: INSTITUTIONAL DISCRETION .......... 167

A. NCAA Constitution .................................................................. 167

B. Division I Manual: Operating and Administrative Bylaws ...... 168

C. NCAA Enforcement Power Under NCAA v. Tarkanian .......... 169

D. Recent Updates ......................................................................... 170

III. PROBLEMS WITH INSTITUTIONAL DISCRETION .................... 171

A. Adverse Incentives for Universities Issuing Discipline ........... 172

B. Inconsistent Rulings and Variation between Institutions ......... 175

IV. PROPOSING A SOLUTION: BENEFITS OF A UNIFORM

DISCIPLINARY POLICY ............................................................ 177

A. Structural Options ..................................................................... 177

B. Benefits to the NCAA ............................................................... 180

V. CONCLUSION ................................................................................... 181

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2024] NCAA ENACTMENT OF A DISCIPLINARY POLICY 165

I. INTRODUCTION

The National Collegiate Athletic Association’s (“NCAA”) Constitu-

tion states that the NCAA is a “self-governing organization” whose basic

purpose is to “support and promote healthy and safe intercollegiate athlet-

ics.”

Yet, the NCAA has no specific penalties for sexual assault, criminal

misconduct, or violence.

While an individual institution may impose disci-

plinary actions, an athlete who is suspended or expelled from one university

is free to transfer to another institution.

Following the implementation of the

NCAA Transfer Portal

in 2018, athletes can easily switch schools, confer-

ences, or divisions without sacrificing their eligibility, which allows an ath-

lete facing disciplinary action at one school to jump ship and leave the con-

sequences of their misconduct behind.

In some cases, athletes do not have to transfer schools to escape disci-

plinary consequences.

For example, during the 2022-2023 academic year,

Mazi Smith, a starting defensive lineman for the University of Michigan

Wolverines football team, continued participating in team activities while

1. See NAT’L COLLEGIATE ATHLETIC ASS’N CONST. pmbl.

2. See Kenny Jacoby, NCAA Looks the Other Way as College Athletes Punished for Sex

Offenses Play On, USA TODAY (Dec. 16, 2019, 9:06 AM), https://www.usatoday.com/in-depth

/news/investigations/2019/12/12/ncaa-looks-other-way-athletes-punished-sex-offenses-play

/4360460002/ [https://perma.cc/6MBN-GW4G] (noting that “the NCAA notoriously metes out

punishments to student athletes for bad grades, smoking marijuana or accepting money and free

meals” and “unlike the pro leagues, the NCAA has no personal conduct policy and no specific

penalties for those who commit sexual assault”).

3. See, e.g., Kenny Jacoby, Athletes Expelled for Sex Assault Find New Home, Play On at

TSU, Austin Peay, and They’re Not Alone, THE TENNESSEAN (Dec. 12, 2019, 4:00 AM), https://

www.tennessean.com/story/sports/2019/12/12/college-athletes-sex-assault-transfer-tennessee-

state-austin-peay/4397662002/ [https://perma.cc/9A95-DQ44].

4. See NCAA Transfer Rules, NCSA COLLEGE RECRUITING, https://www.ncsasports.org

/recruiting/ncaa-transfer-rules [https://perma.cc/XS7R-A4KB] (providing guidance on transfer el-

igibility rules under the NCAA Transfer Portal).

5. See, e.g., Jacoby, supra note 2 (LaDarrius Jackson, after being expelled for violation of

USF’s non-consensual sexual intercourse policy and awaiting criminal charges, transferred to Ten-

nessee State and played the same season, “expulsion and ongoing criminal case posed no obstacle

to his collegiate football career”).

6. See, e.g., Tom VanHaaren, Michigan Wolverines’ Mazi Smith Facing Felony Weapon

Charge, ESPN (Dec. 1, 2022, 11:56 AM), https://www.espn.com/college-football/story/_/id

/35156305/michigan-wolverines-mazi-smith-facing-felony-weapon-charges [https://perma.cc

/4CRU-9U93].

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166 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

facing felony charges for illegally carrying a concealed weapon.

Similarly,

Arterio Morris played an entire season for the University of Texas Long-

horns basketball team and contributed to the team’s Elite Eight run without

facing any internal discipline for pending domestic violence charges.

In yet

another example, the top-ranked University of Alabama Crimson Tide bas-

ketball team allowed Brandon Miller to continue playing despite his involve-

ment in a fatal shooting perpetrated by one of his teammates during the sea-

son.

While the aforementioned university athletics programs allowed

athletes to participate without consequences, other institutions are setting a

very different standard for their athletes, implementing zero-tolerance poli-

cies for sexual assault or criminal misconduct.

Perhaps NCAA athletes should be free to engage in misconduct without

facing sport-specific consequences. After all, they are still subject to the

same criminal and civil liability that all citizens face.

However, the

NCAA’s self-stated focus on “Integrity and Sportsmanship” and the prece-

dent of professional sports leagues establishing personal conduct policies

seems to suggest a higher standard of character expected in sports.

7. See id.

8. Jim Vertuno, Texas G Morris to Transfer; Still Facing Assault Charge, ASSOCIATED

PRESS (Apr. 11, 2023, 11:08 AM), https://apnews.com/article/texas-arterio-morris-transfer-

9954090b704101c1da788cf556fa1272 [https://perma.cc/AM6U-BAY3].

9. Dan Wetzel, Alabama Allowing Brandon Miller to Continue to Play Is Now the Story of

the College Basketball Season, YAHOO! SPORTS (Feb. 24, 2023, 5:28 PM), https://sports.ya-

hoo.com/alabama-allowing-brandon-miller-to-continue-to-play-is-now-the-story-of-the-college-

basketball-season-222843554.html [https://perma.cc/9WYP-BAKA].

10. See University of Texas at San Antonio, The Tracy Rule, UNIV. TEX. AT SAN ANTONIO,

https://www.utsa.edu/today/2019/images/The_Tracy_Rule.pdf [https://perma.cc/9FN9-SBD8].

11. But see Jade Yeban, College Athletes and Crime: What Happens When Players Break

the Law?, FINDLAW (July 14, 2023), https://www.findlaw.com/education/higher-education/col-

lege-athletes-and-crime-what-happens-when-players-break-the-l.html [https://perma.cc/DM88-

JCCL]

(“ESPN’s 2015 ‘Outside the Lines’ investigation released crime statistics of 20 college campuses

from 2009 to 2014. This study suggests that college athletes are much more likely to avoid prose-

cution for crimes than non-athletes.”).

12. See Sportsmanship, NCAA, https://www.ncaa.org/sports/2021/6/18/sportsman-

ship.aspx [https://perma.cc/3ZSY-M2VV] (“It is not by accident that the pursuit of the highest lev-

els of integrity and sportsmanship is a core value of the NCAA, as the Association was founded in

an attempt to address unsportsmanlike acts and other issues that cost the lives of student-athletes.”);

see also League Policies for Players, NAT’L FOOTBALL LEAGUE (2022), https://

nflpaweb.blob.core.windows.net/website/Departments/Salary-Cap-Agent-Admin/2022-NFL-

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2024] NCAA ENACTMENT OF A DISCIPLINARY POLICY 167

This article will highlight the systematic disciplinary problem occur-

ring in college athletics and offer a proposed solution. Part II will describe

the NCAA’s current model which provides institutions full discretion to im-

plement, or refrain from implementing, their own misconduct discipline pol-

icies, and describe the NCAA’s enforcement power over its member institu-

tions, including where the NCAA currently chooses to exercise that power.

Part III will analyze two main problems with the current model of decentral-

ized discipline enforcement and touch briefly on subsidiary issues or claims

that could arise.

Part IV will propose adoption of a uniform disciplinary

policy and highlight the benefits of implementation and enforcement by the

NCAA as a tool to regain legitimacy in a college sports landscape dominated

by name, image, and likeness (“NIL”) deals and College Football Playoffs.

II. THE CURRENT MODEL: INSTITUTIONAL DISCRETION

A. NCAA Constitution

The NCAA Constitution grants the NCAA power to “establish the rules

for sports competitions and participation,” delegates to member institutions

the duty of ensuring “participating student-athletes are in good standing with

the member institution, the conference, division and national Association,”

and provides that any authority not enumerated in the NCAA Constitution is

reserved to the divisions.

The NCAA Constitution does not expressly ad-

dress jurisdiction over student-athletes in the area of criminal misconduct,

but a constitutional amendment can be passed by a two-thirds majority vote

of the present delegates.

Personal-Conduct-Policy.pdf [https://perma.cc/2US5-7ARR]; Matt Ledger, NHL Code of Conduct:

Dawn of a New Era, LAST WORD ON SPORTS (Jan. 9, 2020), https://lastwordonsports.com/hockey

/2020/01/09/nhl-code-of-conduct-dawn-of-a-new-era/ [https://perma.cc/F7BN-JDAV].

13. See infra Part II.

14. See infra Part III.

15. See infra Part IV.

16. See NCAA CONST. art. II, paras. A(2)(d), D(1)(a).

17. See NCAA CONST. art. V, paras. A–C.

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168 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

B. Division I Manual: Operating and Administrative Bylaws

The 2022-23 NCAA Division I Manual is 473 pages long, but does not

once address criminal misconduct by student-athletes or employees.

Arti-

cle 10 addresses Ethical Conduct, but defines ethical conduct as “Honesty

and Sportsmanship” and only sets out disciplinary procedures for student-

athletes who engage in the knowing use of banned drugs or sports wagering

activities.

The bylaws outline extensive policies regarding amateurism, re-

cruiting, and maintenance of academic eligibility to compete, mostly focus-

ing on prohibiting student-athletes from receiving unfair assistance or com-

pensation which would invalidate their amateur status.

Article 19

establishes the NCAA Infractions Program, which is designed to “uphold

integrity and fair play among the NCAA membership, and to prescribe ap-

propriate and fair penalties if violations occur” by creating an independent

committee which issues rulings providing “fairness of procedures and . . .

timely resolution.”

The Division I Enforcement Charging Guidelines pro-

vide uniform standards for evaluating “serious breaches of conduct,” giving

the Infractions Committee legitimacy.

However, the infractions process

only holds individuals and institutions accountable for violations of NCAA

bylaws.

Therefore, under the current model, the Infractions Committee

cannot hear cases or issue disciplinary rulings relating to violence, sexual

assault, or criminal misconduct.

18. See 2022-2023 Division I Manual, NCAA (Aug. 1, 2022), https://www.ncaapublica-

tions.com/productdownloads/D123.pdf [https://perma.cc/A4KK-QE2N].

19. Id. at art. 10.

20. See id. arts. 10–19.

21. Id. at art. 19; see also RAY YASSER ET AL., SPORTS LAW: CASES AND MATERIALS 94–

105 (9th ed. 2019) (detailing the Committee on Infractions’s enforcement process and excerpting

a Committee ruling on Reggie Bush’s amateurism violations while at USC).

22. See Division I Enforcement Charging Guidelines, NCAA, https://www.ncaa.org/sports

/2018/2/8/division-i-enforcement-charging-guidelines.aspx [https://perma.cc/Q5D4-MNRF].

23. See 2022-2023 Division I Manual, supra note 18, art. 19.01.2 (“The infractions program

shall hold institutions, coaches, administrators and student-athletes who violate NCAA bylaws ac-

countable for their conduct, both at the individual and institutional levels.”).

24. See id. art. 19.1 (describing applicable violations and their severity).

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C. NCAA Enforcement Power Under NCAA v. Tarkanian

A uniform disciplinary policy for criminal misconduct may seem to

raise constitutional and due process concerns for the rights of criminal de-

fendants. Although public universities are typically classified as state actors,

the NCAA is not.

Under the 1988 holding in NCAA v. Tarkanian,

the

Supreme Court ruled that the NCAA was not a state actor, and enforcement

of disciplinary decisions by a public university (suspending Coach Tar-

kanian) did not constitute action “under color of” state or federal law.

Thus

the Court dismissed former University of Nevada Las Vegas head coach

Jerry Tarkanian’s Section 1983 claim for violation of his due process rights

and set the precedent that NCAA disciplinary decisions do not have to meet

the standards of constitutional due process.

Tarkanian emphasized the vol-

untary nature of NCAA membership, and the NCAA and its members have

consistently emphasized that intercollegiate athletic participation is not a

fundamental right, but a privilege.

Subsequent attempts to legislatively

limit NCAA enforcement power have been unsuccessful, and the NCAA cur-

rently remains free to adopt and enforce bylaws in an “unfettered” manner

with few limitations.

NCAA bylaws cannot violate federal or state laws on

their face and can potentially be challenged in court if they appear to be dis-

criminatory, arbitrary, or capricious;

however, these burdens are difficult

25. See NCAA v. Tarkanian, 488 U.S. 179, 199 (1988).

26. See generally id.

27. Id. at 179–180 (“[E]ven assuming the truth of Tarkanian’s argument that the power of

the NCAA is so great that UNLV had no practical alternative but to comply with the Association’s

demands, it does not follow that the NCAA was therefore acting under color of state law.”).

28. Id. at 191, 194–95.

29. See The University of Wyoming Board of Trustees’ Minutes Jan. 9-11, 2003, UNIV. OF

WYO. 13 (Jan. 2003), https://www.uwyo.edu/trustees/_files/docs/bot-archive-minutes/2003/2003

_January%209-11_BOT%20Public%20Session%20Minutes_FINAL.pdf [https://perma.cc/CY72-

P6GG] (requiring athletes to acknowledge that participation “is not a right, but a privilege”) (em-

phasis added).

30. See T. Matthew Lockhart, The NCAA Should Adopt a Uniform Student-Athlete Disci-

pline Policy, 16 UCLA ENT. L. REV. 119, 131 (2009).

31. See Michael Kessler, Let’s Give It Arrest: Why the NCAA Should Adopt a Uniform

Disciplinary Policy, 26 MARQ. SPORTS L. REV. 433, 442 (2016) (“NCAA rules and bylaws cannot

permit the commitment of crimes or torts, must generally comply with federal and applicable state

laws, and must comply with the public policy of good faith and fair dealing.”).

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170 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

to prove, and sports organizations are often granted broad deference in the

courts.

D. Recent Updates

In 2017, the NCAA Board of Governors issued a Policy on Campus

Sexual Violence, requiring athletic departments to remain informed on over-

all campus policies.

At the end of 2019, USA Today published an investi-

gation entitled Predator Pipeline,” publicizing the common practice of ath-

letes transferring from one NCAA institution to another after being

disciplined administratively or through the courts.

Shortly after this nega-

tive publicity, in May 2020, the Board of Governors voted to expand the

Campus Sexual Violence policy to require disclosure of “conduct that re-

sulted in discipline through a Title IX proceeding or in a criminal conviction

for sexual, interpersonal or other acts of violence” for any incoming, contin-

uing, or transfer student-athletes.

While this policy is a positive step for-

ward because the NCAA itself is moving towards explicitly addressing vio-

lent or criminal misconduct, the policy has been criticized as toothless

because it leaves the eligibility and discipline decisions up to university

32. See, e.g., Frederic J. Frommer, Play Calling by Congress, NFL and NCAA Allowed

Football to Flourish on Weekends, SPORTS BUS. J. (Dec. 16, 2021), https://www.sportsbusiness-

journal.com/SB-Blogs/COVID19-OpEds/2021/12/16-Frommer.aspx [https://perma.cc/94L3-

EHF7] (“[T]he Sports Broadcasting Act of 1961 — gave the NFL (and other pro sports leagues) a

broadcasting antitrust exemption, while also essentially banning the NFL from televising games on

Saturdays during most of the fall, to protect college football. The ban also covers Friday nights in

deference to high school football.”); YASSER ET AL., supra note 21, at 266–67 (“In Federal Base-

ball the United States Supreme Court ruled that baseball was not subject to the reach of the antitrust

laws, but was merely the business of ‘giving the exhibitions of baseball, which are purely state

affairs’ and was ‘not a subject of commerce.’”).

33. See Policy on Campus Sexual Violence, NCAA BOARD OF GOVERNORS 2, 4 (2017)

https://ncaaorg.s3.amazonaws.com/ssi/violence/NCAA_CampusSexualViolencePolicy.pdf

[https://perma.cc/RB2W-VYER].

34. See Kenny Jacoby, NCAA Looks the Other Way as College Athletes Punished for Sex

Offenses Play On, USA TODAY (Dec. 16, 2019, 9:06 AM), https://www.usatoday.com/in-depth

/news/investigations/2019/12/12/ncaa-looks-other-way-athletes-punished-sex-offenses-play

/4360460002/ [https://perma.cc/6MBN-GW4G] (“College athletes can lose their NCAA eligibility

in numerous ways, but sexual assault is not one of them. Even when facing or convicted of criminal

charges, even when suspended or expelled from school, NCAA rules allow them to transfer else-

where and keep playing.”).

35. Id. (“Failure to make a full and accurate disclosure could result in penalties, including

loss of eligibility to participate in athletics as determined by the member institution.”).

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2024] NCAA ENACTMENT OF A DISCIPLINARY POLICY 171

discretion.

Overall, while the NCAA Board of Governors has the power to

amend the NCAA Constitution or bylaws and create a centralized system to

regulate misconduct discipline, it has instead chosen to focus its investiga-

tory power on coaches buying burgers for recruits,

while leaving investi-

gation of sexual assault allegations and criminal charges in the hands of in-

dividual universities.

III. PROBLEMS WITH INSTITUTIONAL DISCRETION

Leaving the role of disciplinarian to individual athletic departments in

sexual assault, criminal misconduct, and violence cases raises a host of prob-

lems.

This article will address two of the most prominent issues: first, these

institutions depend on star athletes to generate revenue and build their na-

tional reputation,

and second, institutions have vastly different policies,

36. See Board of Governors Expands Sexual Violence Policy, NCAA (May 1, 2020, 1:26

PM), https://www.ncaa.org/news/2020/5/1/board-of-governors-expands-sexual-violence-pol-

icy.aspx [https://perma.cc/T8XX-FYNN] (“Schools continue to have responsibility to set standards

for appropriate conduct with students, investigation of alleged inappropriate conduct, and resulting

discipline to those engaging with student-athletes.”); see also Kenny Jacoby, NCAA Adopts Policy

to Vet College Athletes for Sexual Assault, But Lets Them Stay Eligible, USA TODAY (May 6, 2020,

2:31 PM), https://www.usatoday.com/story/news/investigations/2020/05/04/ncaa-requires-vetting-

athletes-sexual-assault-violence/3077489001/ [https://perma.cc/R8RR-FRVW] (“Sexual assault

survivors and advocates for them complain that the policy, though a good first step, stops short of

restricting the eligibility of athletes found to have committed such acts.”).

37. See, e.g., Burgergate, THE MICH. INSIDER, https://247sports.com/college/michigan

/Board/103320/Contents/Burgergate-202326051/ [https://perma.cc/R469-G4MK]; T. Matthew

Lockhart, The NCAA Should Adopt a Uniform Student-Athlete Discipline Policy, 16 UCLA ENT.

L. REV. 119, 120 (2009).

38. See, e.g., Kenny Jacoby & Savannah Kuchar, Colleges Rely on Honor System When

Checking Sexual Assault Background of Student Athletes, USA TODAY, (Oct. 30, 2023, 8:26 PM),

https://www.usatoday.com/in-depth/news/investigations/2023/10/30/ncaa-athlete-sexual-assault-

vetting-dont-ask-dont-tell/70371805007/ [https://perma.cc/8PPX-42ZZ].

39. Id.

40. See Jeff Grabmeier, Study Estimates Revenue Produced by Top College Football Play-

ers, OHIO STATE NEWS (Apr. 16, 2020), https://news.osu.edu/study-estimates-revenue-produced-

by-top-college-football-players/ [https://perma.cc/2ZM5-SPBN] (“The most elite players in col-

lege football increase revenue for their school football programs by an average of $650,000 a

year.”).

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172 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

enforcement staff, and resources to dedicate to disciplinary proceedings.

The NCAA’s rationale in leaving disciplinary responsibility in the hands of

universities may be driven by an attempt to shift the economic and temporal

burden of their own disciplinary workload to the schools. However, the

NCAA, a 501(c)(3) nonprofit organization, claims to “put its money where

its mission is: equipping student-athletes to succeed on the playing field, in

the classroom and throughout life.”

The NCAA actually does distribute a

bulk of its revenue to its member schools, but even after suffering losses in

the COVID-19 pandemic, the NCAA still reported assets worth over $457

million in August 2022.

Between an already developed infrastructure in the

Committee on Infractions and a well-buttressed level of asset-backing, it

seems financially feasible for the NCAA to adopt and enforce a disciplinary

policy.

A. Adverse Incentives for Universities Issuing Discipline

The logical fallacy of allowing an institution to essentially self-impose

punishment is obvious: an athletic department has every reason to minimize

problems with its student-athletes to preserve the legitimacy of its public

reputation.

If the decision is left to a head coach, whose job security

41. See Board of Governors Expands Sexual Violence Policy, NCAA (May 1, 2020, 1:26

PM), https://www.ncaa.org/news/2020/5/1/board-of-governors-expands-sexual-violence-pol-

icy.aspx [https://perma.cc/T8XX-FYNN].

42. See Finances, NCAA, https://www.ncaa.org/sports/2021/5/4/finances.aspx [https://

perma.cc/R8QS-UYXA].

43. See Michael Houston, NCAA Financial Report Reveals 2022 Loss as COVID-19 Re-

covery Continues, INSIDE THE GAMES, (Jan. 31, 2023), https://www.insidethegames.biz/articles

/1133166/ncaa-2022-loss-covid-recovery [https://perma.cc/H9SC-BFGZ].

44. See Division I Committee on Infractions, NCAA (Nov. 17, 2013), https://www.ncaa.org

/sports/2013/11/17/division-i-committee-on-infractions.aspx [https://perma.cc/9Y9T-HBF5]; Fi-

nances, supra note 42.

45. See, e.g., The ‘Black Hole’ of College Sports, INSIDE HIGHER ED. (Feb. 8, 2017), https://

www.insidehighered.com/news/2017/02/09/baylor-not-alone-shielding-athletes-accused-miscon-

duct-punishment [https://perma.cc/KSF7-UV6U]; Paula Levigne, Lawyers, Status, Public Back-

lash Aid College Athletes Accused of Crimes, ESPN (June 12, 2015, 12:40 PM), https://

www.espn.com/espn/otl/story/_/id/13065247/college-athletes-major-programs-benefit-conflu-

ence-factors-somes-avoid-criminal-charges [https://perma.cc/E5QV-FTTY]; Paul Shapiro, Michi-

gan State University Allegedly Covered Up Sex Assaults, Violence at the Hands of 16 Football

Players, Other Athletes, N.Y. DAILY NEWS (Apr. 7, 2018, 7:37 AM), https://www.nydailyn-

ews.com/2018/01/26/michigan-state-university-allegedly-covered-up-sex-assaults-violence-at-

the-hands-of-16-football-players-other-athletes/ [https://perma.cc/CV9D-EZEV].

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2024] NCAA ENACTMENT OF A DISCIPLINARY POLICY 173

depends on wins and losses, the incentives are similarly misaligned with ef-

fective enforcement and rehabilitation.

This difficult position usually leads

to binary results: a school can minimize discipline by ignoring or covering

up an offense, or it can simply dismiss the student-athlete from the team.

Often, if a star player generates revenue for the university and contributes to

wins for the head coach, the disciplining parties are incentivized to “go to

bat” for the student-athlete and find alternatives that preserve their ability to

compete.

On the other hand, if an athlete is less important to achieving

these goals (winning and generating revenue), the disciplining parties could

easily choose dismissal from the team, allowing the coach to avoid wasting

time and resources on athlete rehabilitation while the university avoids me-

dia scrutiny or reputational damage.

During the 2023 Division I Men’s Basketball season, University of Al-

abama basketball player Darius Miles was charged with capital murder for

his role in the fatal shooting of Jamea Harris.

Miles, a non-starter who was

playing only six minutes per game, was quickly dismissed from the team

46. T. Matthew Lockhart, The NCAA Should Adopt a Uniform Student-Athlete Discipline

Policy, 16 UCLA ENT. L. REV. 119, 126 (2009).

47. See Michael Kessler, Let’s Give It Arrest: Why the NCAA Should Adopt a Uniform

Disciplinary Policy, 26 MARQ. SPORTS L. REV. 433 & 448 exs. 1, 2, 3 & 4 (2016) (detailing the

resulting disciplinary punishments at four major university football programs from 2004–2014).

48. See, e.g., Lockhart, supra note 46, at 138 (“Like coaches before him at Alabama, Saban

turned to community service instead of suspending the athlete from competition. While community

service is unquestionably an honorable deed, Alabama’s policy is perceived to lack punch because

athletes are not punished where it hurts - on the athletic field.”); see also Kessler, supra note 47, at

435 (“Other recent examples of schools disciplining student-athletes seem to be following a dis-

turbing trend, especially when ‘star players’ appear to receive favorable treatment in disciplinary

sanctions.”).

49. This aspect of institutional decision-making can bring in broader issues such as gender

discrimination. Male athletes who participate in inherently aggressive sports are the demographic

most likely to engage in aggressive behavior off the field. Yet, these are also the sports which most

commonly include star athletes generating significant revenue for the university, while a female

athlete in a non-revenue generating sport is not likely to receive the same self-incentivized univer-

sity protections. See Lydia Bert and Mary Wilfert, Mind, Body and Sport: Interpersonal Violence

and the Student-Athlete Population, NCAA (Nov. 5, 2014), https://www.ncaa.org/sports/2014/11

/5/mind-body-and-sport-interpersonal-violence-and-the-student-athlete-population.aspx [https://

perma.cc/93YW-5JD5].

50. Noah M. Cerimele, Brandon Miller, the Accomplice, NA EYE (Mar. 1, 2023), https://

naeye.net/19632/sports/brandon-miller-the-accomplice/ [https://perma.cc/8KPR-A7H5].

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174 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

even though his criminal case had not yet been adjudicated.

On the other

hand, the team’s star player and projected NBA lottery pick Brandon Miller,

who was present at the shooting and gave Miles the murder weapon, was

never disciplined by the university and continued playing, averaging 32

minutes and 18.8 points per game, leading Alabama to the Sweet Sixteen.

While these two athletes played different roles in this incident, it is clear they

were also treated differently by the university due to their value on the

court.

The decision to allow Brandon Miller’s continued participation came

under scrutiny months after the incident, when information about his level

of involvement became public.

Head coach Nate Oats was forced to walk

back his statement that Miller was merely in the “wrong place at the wrong

time,” yet the university did not change its decision to let Miller play

throughout the March Madness tournament.

This is a recent and highly

publicized example of what likely goes on all across the country when uni-

versities are allowed to act in their own best interests with no accountability

to their membership organization.

51. Id.; Darius Miles Stats, News, Bio, ESPN, https://www.espn.com/mens-college-basket-

ball/player/_/id/4433561/darius-miles [https://perma.cc/VZ5C-8N45].

52. Brandon Miller Stats, News, Bio, ESPN, https://www.espn.com/nba/player/_/id

/4433287/brandon-miller [https://perma.cc/24ZY-VB7F]; David Gotfredson, Alabama’s Point

Leader Embroiled in Murder Controversy, CBS 8 (Mar. 20, 2023, 7:32 PM), https://www.cbs8.com

/article/news/national/basketball-point-leader-embroiled-in-murder-controversy/509-19b73ec4-

98f9-410f-9286-41ac9ad77d14 [https://perma.cc/5G7T-Y5QL].

53. See Gotfredson, supra note 52 (“‘The whole team understands how tragic and serious

this situation we’re dealing with is. I think they’re doing a great job. Just understanding that we’re

still focused on the task at hand while still understanding how tragic and serious the situation is,’

Oats said on February 24.”).

54. See Scott Polacek, Alabama’s Nate Oats Clarifies Comments on Brandon Miller Shoot-

ing Involvement, BLEACHER REP. (Feb. 21, 2023), https://bleacherreport.com/articles/10066447-

alabamas-nate-oats-clarifies-comments-on-brandon-miller-shooting-involvement [https://

perma.cc/K9CW-WCLJ] (“Alabama men’s basketball coach Nate Oats issued an apology Tuesday

night regarding statements he made after it was revealed Crimson Tide player Brandon Miller al-

legedly provided the gun used in the shooting death of a 23-year-old woman in January.”).

55. Id.; Mike Rodak, Nate Oats: Brandon Miller Was In ‘Wrong Spot at Wrong Time’ Night

of Jamea Harris Killing, AL.COM (Feb. 21, 2023), https://www.al.com/alabamabasketball/2023/02

/nate-oats-brandon-miller-was-in-wrong-spot-at-wrong-time-night-of-jamea-harris-killing.html

[https://perma.cc/WQ8R-SV94].

56. See sources supra note 45.

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B. Inconsistent Rulings and Variation between Institutions

In addition to the discretion within an athletic department, there is an

even wider variance in how different universities and conferences handle and

discipline misconduct.

While some have strict policies banning athletes

found guilty in a criminal or administrative proceeding, other programs reap

the on-field benefits by functioning as a transfer portal landing spot for those

banned athletes.

The conferences and schools that have enacted strict poli-

cies typically only apply these policies to athletes who have been convicted

of criminal acts, demonstrating how the handling of student-athlete disci-

pline during an investigation is still fully discretionary.

In his 2016 study,

Michael Kessler compared how Florida State University (“Florida State”)

and the University of Florida (“Florida”) each handled sexual assault allega-

tions against their respective starting quarterbacks.

While Florida sus-

pended quarterback Treon Harris as soon as allegations were filed, Florida

State allowed Jameis Winston to play throughout a sexual assault investiga-

tion without issuing any disciplinary penalties.

These program-to-program variations in investigatory and disciplinary

policies can ultimately lead to harmful and damaging situations and put other

athletes at risk.

In February 2023, New Mexico State University was forced

to suspend its entire men’s basketball program indefinitely and cancel the

57. See Kenny Jacoby, NCAA Adopts Policy to Vet College Athletes for Sexual Assault, But

Lets Them Stay Eligible, USA TODAY (May 6, 2020, 2:31 PM), https://www.usatoday.com/story

/news/investigations/2020/05/04/ncaa-requires-vetting-athletes-sexual-assault-violence

/3077489001/ [https://perma.cc/R8RR-FRVW] (“A handful of NCAA conferences and schools ban

athletes who’ve been criminally convicted or disciplined by their schools for sexual and other vio-

lent offenses, including the SEC, Big 12, Pac-12, Big Sky, Southern and Mid-American confer-

ences, as well as Indiana University and the University of Texas-San Antonio (UTSA).”).

58. See id.

59. See id.

60. Kessler, supra note 47, at 434–35.

61. Id.

62. See Kenny Jacoby & Savannah Kuchar, Colleges Rely on Honor System When Check-

ing Sexual Assault Background of Student Athletes, USA TODAY, (Oct. 30, 2023, 8:26 PM), https://

www.usatoday.com/in-depth/news/investigations/2023/10/30/ncaa-athlete-sexual-assault-vetting-

dont-ask-dont-tell/70371805007/ [https://perma.cc/8PPX-42ZZ] (“[I]f an athlete answers “no” to a

list of questions about criminal convictions and school disciplinary action, officials at many multi-

sport powerhouses – the University of Alabama, Louisiana State University, Ohio State University

and more – generally take their word for it.”).

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176 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

remainder of their season due to an epidemic of violent misconduct.

First,

in November 2022, a member of the team “shot and killed a University of

New Mexico student,” after which coaches and staffers became involved and

potentially assisted in trying to cover up the incident.

At this point, the

school was free to conduct investigations and enforce discipline upon players

and employees itself, but due to the unprecedented situation of athlete in-

volvement in a deadly shooting followed by allegations of rampant hazing

within the team, it had no guidelines or precedent to follow.

The lack of

institutional leadership led to chaos within the team, which continued unin-

hibited until a team member filed a police report against three of his own

teammates for “false imprisonment, harassment and counts of criminal sex-

ual contact.”

After that, the university took the unprecedented step of shut-

ting down the program mid-season, left out to dry by the NCAA with no

guidance or alternatives.

Overall, individual institutional discretion in disciplinary policies cre-

ates a patchwork system of loopholes and inconsistency for student-athletes,

making standards of compliance unclear and opportunities for rehabilitation

unavailable.

While outside the scope of this article, disparate enforcement

63. See ESPN News Services, New Mexico State Won’t Resume Season; 3 Players Alleg-

edly Hazed Teammate, ESPN (Feb. 12, 2023, 5:58 PM), https://www.espn.com/mens-college-bas-

ketball/story/_/id/35647642/new-mexico-state-men-basketball-resume-season [https://perma.cc

/N344-3894].

64. Id.

65. See id. (“The shutdown of a Division I program in midseason for reasons other than a

spate of injuries or, more recently, a COVID-19 outbreak, is virtually unheard of. SMU’s football

program canceled its 1988 season after the NCAA handed it the ‘death penalty’ the year before,

but that move was made before the season was underway.”).

66. Id.; see also Vince Rodriguez, New Mexico Is Falling Short in Hazing Prevention,

KOAT 7 (Apr. 12, 2024, 1:53 PM), https://www.koat.com/article/nmsu-hazing-scandal-allegations

/60440737 [https://perma.cc/9B5X-QYD7] (“William Benjamin believes that these alleged inci-

dents of hazing could have been stopped months earlier if New Mexico State University took more

action following a deadly shooting involving members of the same basketball team.”).

67. Eddie Pells, New Mexico St. Suspends Operations of Men’s Basketball Team,

ASSOCIATED PRESS (Feb.11, 2023, 6:21 AM), https://apnews.com/article/sports-mike-peake-new-

mexico-mens-basketball-c9db140c4f3dad2a92ce2e8c35d94a8b [https://perma.cc/J4FJ-DSFX].

68. Stephen A. Miller, The NCAA Needs to Let Someone Else Enforce Its Rules, THE ATL.

(Oct. 23, 2012), https://www.theatlantic.com/entertainment/archive/2012/10/the-ncaa-needs-to-

let-someone-else-enforce-its-rules/264012/ [https://perma.cc/2JVD-C6TR] (proposing a different

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2024] NCAA ENACTMENT OF A DISCIPLINARY POLICY 177

between universities, especially within the same state or conference, could

raise legal issues of racial discrimination and equal protection.

IV. PROPOSING A SOLUTION: BENEFITS OF A UNIFORM

DISCIPLINARY POLICY

Undoubtedly, the NCAA has considered adopting a uniform discipli-

nary enforcement policy, as evidenced by its expansion of the Policy on

Campus Sexual Violence.

But this “toothless” policy does not live up to

the NCAA’s proclaimed mission and standards. As former University of

Kansas athlete and sexual assault victim Daisy Tackett said, “The NCAA

should take on the liability if it means protecting students, instead of protect-

ing themselves.”

A. Structural Options

The Board of Governors enacting a uniform disciplinary policy through

an amendment to the NCAA Constitution or through passing a new bylaw is

the biggest hurdle to implementation.

In terms of structuring an enforce-

ment procedure, the NCAA has numerous sources to reference.

First, the

solution to the problem of the NCAA’s enforcement inconsistency, calling it “just one of many,

larger hypocrisies besetting the NCAA these days”).

69. See Jacoby, supra note 57 (“[B]y shifting the burden onto universities to develop their

own procedures, the NCAA could expose public schools to unequal protection and due process

claims under the Constitution.”); see generally Taylor Thulson, Gender-Based Violence in Athlet-

ics: A Focus on Division I Football Programs and the NFL, U. OF DEL. CARLETON EXTERNSHIP

PROGRAM (2020), https://www.wgs.udel.edu/gbv/Documents/Research%20Brief

_%20GBV%20in%20Athletics.pdf [https://perma.cc/G4KP-ZJM2]; Timothy Davis, The Myth of

the Superspade: The Persistence of Racism in College Athletics, 22 FORDHAM URB. L. J. 615

(1995).

70. See Policy on Campus Sexual Violence, NCAA BOARD OF GOVERNORS (2017) https://

ncaaorg.s3.amazonaws.com/ssi/violence/NCAA_CampusSexualViolencePolicy.pdf [https://

perma.cc/RB2W-VYER].

71. See Kenny Jacoby, NCAA Adopts Policy to Vet College Athletes for Sexual Assault, But

Lets Them Stay Eligible, USA TODAY (May 6, 2020, 2:31 PM), https://www.usatoday.com/story

/news/investigations/2020/05/04/ncaa-requires-vetting-athletes-sexual-assault-violence

/3077489001/ [https://perma.cc/R8RR-FRVW].

72. See NCAA CONST. art. V.

73. See, e.g., Collective Bargaining Agreement, NAT’L BASKETBALL ASSOC., art. VI, § 16

(Jan. 1, 2017) https://cosmic-s3.imgix.net/3c7a0a50-8e11-11e9-875d-3d44e94ae33f-2017-NBA-

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178 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

NCAA could model a “Committee on Disciplinary Enforcement” after the

well-established Committees on Infractions, which already exist at each di-

visional level.

The NCAA could utilize the same (or similar) requirements

in the selection of neutral committee members and, given the frequency of

recruiting violation allegations, likely have a strong understanding of the

time, resources, and labor necessary to set up a functional system.

Alternatively, the NCAA could look to U.S. professional sports leagues

for structural guidance. For example, the National Basketball Association’s

(“NBA”) collective bargaining agreement includes a “Joint NBA/NBPA

Policy on Domestic Violence, Sexual Assault, and Child Abuse” which es-

tablishes a policy committee and outlines disciplinary authority standards

including aggravating factors.

The National Women’s Soccer League

(“NWSL”) provides dual disciplinary authority to an athlete’s team and the

NWSL, but both follow generally agreed upon “principles of progressive

discipline.”

Most professional leagues, including the NBA and NWSL, em-

ploy a neutral arbitrator for the disciplinary appeals processes.

The NCAA

could consider an arbitration model of disciplinary enforcement, or use an

arbitrator to decide appeals of any Committee on Disciplinary Enforcement

decisions. In creating its disciplinary policy, the NCAA should consider in-

cluding another structural feature modeled after the professional leagues: the

NBPA-Collective-Bargaining-Agreement.pdf [https://perma.cc/T6M3-LJ5R] [hereinafter NBA

Collective Bargaining Agreement].

74. See RAY YASSER ET AL., SPORTS LAW: CASES AND MATERIALS, 266, 94–105 (9th ed.

2019) (describing the Committee on Infractions’s enforcement process); see also Division I Com-

mittee on Infractions, NCAA (Nov. 17, 2013), https://www.ncaa.org/sports/2013/11/17/division-i-

committee-on-infractions.aspx [https://perma.cc/9Y9T-HBF5].

75. See Division I Committee on Infractions, supra note 74 (“In accordance with NCAA

Bylaw 19.3.1, the COI membership shall include, where reasonably possible: current or former

presidents, chancellors, directors of athletics; former coaches; representatives from conference of-

fices; faculty/staff; athletics administrators with compliance experience; and general public mem-

bers who have formal legal training but who are not associated with a collegiate institution, confer-

ence, or professional or similar sports organization and who do not represent coaches or athletes in

any way.”).

76. See NBA Collective Bargaining Agreement, supra note 73, art VI § 16.

77. Collective Bargaining Agreement Between the National Women’s Soccer League Play-

ers Association And National Women’s Soccer League, NAT’L WOMEN’S SOCCER LEAGUE

PLAYERS ASS’N, art. 17, § 17.1 (April 29, 2022), https://www.nwslplayers.com/_files/ugd/84dade

_f54a9ed0c1fa4bd48f5275563a3f9e04.pdf [https://perma.cc/7G2S-5987].

78. See, e.g., id. at art. 18.

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prohibition of duplicative punishment.

Professional teams have concurrent

disciplinary powers with the overarching league, however duplicative pun-

ishment is prohibited.

Similarly, the NCAA should grant universities the

power to discipline their athletes under their own authority, but this must not

shield schools or athletes from an NCAA investigation and ruling.

The

NCAA disciplinary decisions would serve as a uniform “floor” standard of

punishment, and schools would have discretion to issue further conse-

quences but not to lessen them.

Finally, if the NCAA remains hesitant to take responsibility and fulfill

its mission, a proposed next step toward uniformity would be the enactment

of binding or recommended disciplinary guidelines.

Like the guidelines

created by the United States Sentencing Commission followed throughout

the U.S. Criminal Justice system,

the NCAA Disciplinary Guidelines

could, at the very least, provide a disciplinary framework for athletic depart-

ments to follow, and establish a baseline level of consistency across each

division.

79. Duplicative punishment is similar to double jeopardy and occurs in sports if an athlete

or coach is subject to discipline from both the team and the conference or league for the same

misconduct. See, e.g., NBA Collective Bargaining Agreement, supra note 73, art. VI, § 10 (“One

Penalty. The NBA and a Team shall not discipline a player for the same act or conduct. The NBA’s

disciplinary action will preclude or supersede disciplinary action by any Team for the same act or

conduct.”).

80. See, e.g., NBA Collective Bargaining Agreement, supra note 73.

81. See Stephen A. Miller, The NCAA Needs to Let Someone Else Enforce Its Rules, THE

ATL. (Oct. 23, 2012), https://www.theatlantic.com/entertainment/archive/2012/10/the-ncaa-needs-

to-let-someone-else-enforce-its-rules/264012/ [https://perma.cc/2JVD-C6TR] (“If the NCAA de-

voted 3 percent of its annual revenue to third-party investigation and punishment determination,

$22.8 million each year would flow into the efforts to root out major violations.”).

82. See T. Matthew Lockhart, The NCAA Should Adopt a Uniform Student-Athlete Disci-

pline Policy, 16 UCLA ENT. L. REV. 119, 122 (2009) (advocating “for the NCAA to set the floor

for punishment, thereby making the initial punishment uniform across the nation. Each individual

university will be free to punish athletes above and beyond the NCAA’s initial punishment.”).

83. See Aaron Hernandez, Step One: Solving the NCAA Sexual Assault Problem, 32 MARQ.

SPORTS L. REV. 157, 161 (2022), https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?arti-

cle=1811&context=sportslaw [https://perma.cc/VG8J-YJ6H] (explaining “the legal underpinnings

of the NCAA and why the Association would be able to enact enforceable legislation making sexual

assault an NCAA violation”).

84. See U.S. SENT’G GUIDELINES MANUAL ANNOTATED (U.S. SENT’G COMM’N 2021).

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180 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

B. Benefits to the NCAA

Now more than ever, the NCAA is in an era of heightened scrutiny and

weakened legitimacy, largely due to conference realignment, the College

Football Playoff, and the legalization of athlete NIL rights.

As the South-

eastern and Big 10 Conferences continue to increase concentration of top-

tier institutions, they gain autonomy and leverage relative to the NCAA.

While the NCAA sanctions the Division 1 Football Championship Series

(“FCS”), the elite Football Bowl Series (“FBS”) schools all compete for a

place in the College Football Playoff.

In July 2021, NCAA athletes became

able to profit from NIL deals for the first time following the implied stance

of approval from the United States Supreme Court in NCAA v. Alston.

The

NCAA was seemingly caught off-guard because rather than providing a uni-

form policy on NIL, the NCAA’s interim policy largely deferred to state law

and individual school reporting requirements.

Then, in April 2022, the

85. See Lawrence W. Judge & Jeffrey Peterson, Reframing the Collegiate Facilities Arms

Race: The Looming Impact of NIL and Conference Realignment, 13 J. OF APPLIED SPORTS MGMT.

36, 36 (2021), https://trace.tennessee.edu/jasm/vol13/iss2/8/ [https://perma.cc/6FGL-7Z4V].

86. See College Football Conference Realignment Tracker: Remaining Questions, Next

Steps After Latest Shake-Up, ENT. AND SPORTS PROGRAMMING NETWORK (Nov. 11, 2021, 10:27

AM ET), https://www.espn.com/college-football/story/_/id/32465132/college-football-confer-

ence-realignment-tracker-remaining-questions-next-steps-latest-shake-up [https://perma.cc

/SGN6-VU8Q]; see also Adam Rittenberg, Big Ten Adds Oregon, Washington As Newest Members

in Blow to Pac-12, ESPN (Aug. 4, 2023, 7:35 PM), https://www.espn.com/college-football/story/

_/id/38135852/big-ten-adds-oregon-washington-newest-members-blow-pac-12 [https://perma.cc

/9NJH-RXA9] (“The Big Ten added Oregon and Washington as new members Friday, strengthen-

ing the Western flank of the rapidly growing conference while dealing a major blow to the Pac-

12.”).

87. See Brandon Marcello, Why the NCAA Doesn’t Control College Football and Never

Will, 247SPORTS (Jul. 23, 2020), https://247sports.com/Article/-Why-1984-Supreme-Court-ruling-

explains-why-NCAA-does-not-control-college-football-amid-coronavirus-COVID-19-pandemic-

149461659/ [https://archive.is/u6Mkf].

88. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2167–69 (2021) (Ka-

vanaugh, J., concurring); Andrew Brandt, Business of Football: The Supreme Court Sends a Mes-

sage to the NCAA, SPORTS ILLUSTRATED (June 29, 2021), https://www.si.com/nfl/2021/06/29

/business-of-football-supreme-court-unanimous-ruling [https://perma.cc/6KLA-LEMB] (“The

NCAA seems to be throwing up its hands, perhaps too rattled from the Alston decision to enact any

policy restricting college athletes at this time.”).

89. Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image and Likeness Policy,

NCAA (June 30, 2021, 4:20 PM), https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-

name-image-and-likeness-policy.aspx [https://archive.is/acIfT] (“The policy provides the follow-

ing guidance to college athletes, recruits, their families and member schools: Individuals can en-

gage in NIL activities that are consistent with the law of the state where the school is located.

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NCAA abruptly announced that Mark Emmert, President of the NCAA since

2010, would be stepping down.

This abrupt resignation raised questions

about his leadership and perhaps signaled that the NCAA realized its own

missteps with respect to the aforementioned issues.

In December 2022, the

NCAA announced Emmert’s successor would be former Governor of Mas-

sachusetts Charlie Baker, who took office as NCAA President in March

2023.

Considering its recent track record of blunders, implementation of a

robust and uniform disciplinary policy by recently-appointed NCAA Presi-

dent Charlie Baker would signal a shift in the NCAA’s effectiveness and

help it hold on to what power and legitimacy it has retained in college ath-

letics.

V. CONCLUSION

Overall, a uniform disciplinary policy centrally enforced by the NCAA

upon its member institutions would benefit all parties involved.

Student-

athletes would be subject to consistent, understandable conduct requirements

on and off the field and be held responsible for their actions instead of finding

Colleges and universities may be a resource for state law questions. College athletes who attend a

school in a state without an NIL law can engage in this type of activity without violating NCAA

rules related to name, image and likeness. Individuals can use a professional services provider for

NIL activities. Student-athletes should report NIL activities consistent with state law or school and

conference requirements to their school.”).

90. Pat Forde, Goodbye, NCAA President Mark Emmert, and Good Luck to Whomever

Takes Your Place, SPORTS ILLUSTRATED (Apr. 26, 2022), https://www.si.com/college/2022/04/27

/mark-emmert-steps-down-ncaa-president-about-time-for-change [https://archive.is/6KeGm].

91. See id.

92. NCAA President Charlie Baker, NCAA, https://www.ncaa.org/sports/2023/3/1/ncaa-

president-charlie-baker.aspx#:~:text=Charlie%20Baker%20assumed%20the%20du-

ties,the%2072nd%20 governor%20of%20 Massachusetts [https://perma.cc/VS46-YSYB] (“Baker

has arrived at the NCAA at a moment of significant transformation. Legal shifts in the environment

surrounding college sports have challenged the NCAA’s ability to serve as an effective national

regulator for college athletics, resulting in an untenable patchwork of individual state laws.”).

93. See id.

94. See Aaron Hernandez, Step One: Solving the NCAA Sexual Assault Problem, 32 MARQ.

SPORTS L. REV. 157, 157 (2022), https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?arti-

cle=1811&context=sportslaw [https://perma.cc/VG8J-YJ6H].(“Since the NCAA is a member as-

sociation, the controversies the Association has faced over time are largely dictated by the demands

and interests of its member institutions.”).

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182 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 44:3

loopholes to evade disciplinary consequences.

Coaches and athletic depart-

ments would not be placed in the dilemma where enforcement of ethical pun-

ishment standards leads to self-sabotage in terms of revenue and game

wins.

Further, they could implement their own supplementary discipline

procedures if they so choose. Institutions will be protected from issuing dis-

criminatory rulings which may lead to legal claims of violations of equal

protection, due process, and Title IX.

Instead of pushing every resource

into defending the antiquated concept of “amateurism” in college sports, the

NCAA can legitimize itself in the public eye by acting in furtherance of its

purpose to “support and promote healthy and safe intercollegiate athletics.”

This article does not go so far as to suggest a normative policy for when or

how student-athletes should be punished, it merely proposes that whatever

that standard may be, it should be centralized and uniformly applied by the

NCAA. Such a policy would provide the consistency and clarity necessary

to equitably enforce discipline across race and gender currently lacking in

intercollegiate athletics.

95. See, e.g., Kenny Jacoby, NCAA Looks the Other Way as College Athletes Punished for

Sex Offenses Play On, USA TODAY (Dec. 16, 2019, 9:06 AM), https://www.usatoday.com/in-depth

/news/investigations/2019/12/12/ncaa-looks-other-way-athletes-punished-sex-offenses-play

/4360460002/ [https://perma.cc/6MBN-GW4G].

96. See T. Matthew Lockhart, The NCAA Should Adopt a Uniform Student-Athlete Disci-

pline Policy, 16 UCLA ENT. L. REV. 119,153–54 (2009).

97. See Paula Lavigne, NCAA Sued by 7 Women for Failure to Protect in Alleged Sexual

Assaults, ENT. AND SPORTS PROGRAMMING NETWORK (Apr. 29, 2020), https://www.espn.com

/college-sports/story/_/id/29114869/ncaa-sued-7-women-failure-protect-alleged-sexual-assaults

[https://perma.cc/3JWL-YCUY].

98. See NCAA CONST. pmbl.