Governance and Intercollegiate Athletics

Boards Must Know the Score

By John T. Casteen and Richard D. Legon    //    Volume 20,  Number 6   //    November/December 2012
Trusteeship Issue: Governance and Intercollegiate Athletics: Boards Must Know the Score - November/December 2012

Two events of the late summer and early fall have underscored how rapidly intercollegiate athletics change in our time: first, the National Collegiate Athletic Association (NCAA) action to ban the Pennsylvania State University football team from postseason play for four seasons, vacate many of its previous wins, and fine it $60 million; second, The University of Notre Dame’s decision to join the Atlantic Coast Conference (ACC). These events also highlight the evolving and crucial role governing boards must play in intercollegiate athletics. While boards have to delegate the daily administration of athletics programs to their presidents, they must be aware of the issues and involve themselves in policy considerations that properly belong to them and can ultimately have a major impact on the institution’s financial welfare and reputation.

Certainly, few people, and no sports writers we have found, predicted the NCAA’s unprecedented sanctions and fine on Penn State following revelations of sexual abuse of minors by a former assistant football coach and questions about the response of university officials. Those sanctions and that fine have come to symbolize just how serious the NCAA is about fundamental reform with regard to institutional responsibility for dealing ethically with persons who come into universities because of intercollegiate athletics.

Notre Dame’s alliance with the Atlantic Coast Conference moved the long discussion of conference alignments and realignments into new territory. The chances are that few people support every change in every conference, but the Notre Dame/ACC announcement seems to have persuaded most journalists that the larger designs pursued by the major conferences may have been more complex and perhaps sensible than the sports pages suggested previously.

These and other developments this year have mirrored in various ways the discussions and survey responses that informed the report of the AGB Intercollegiate Athletics Project, “Trust, Accountability, and Integrity,” which AGB released in October. (For a copy, see agb.org.) The Knight Commission on Intercollegiate Athletics asked AGB last year to explore board practices in the area of athletics oversight and to offer recommendations for improvement where necessary. AGB has a history of working on issues concerning board responsibilities for intercollegiate athletics, having released three essential statements on the topic, the most recent in 2009. That statement addressed eight areas of board engagement in college sports: 1) policy articulation and general oversight, 2) presidential leadership, 3) athletics-department mission, 4) fiscal integrity, 5) academics and student-athlete welfare, 6) compliance with NCAA and other regulations, 7) personnel, and 8) communications.

AGB developed the Knight Commission report with the support and counsel of an advisory committee of top leaders in higher education. (See box below.) As part of the report, we also surveyed presidents and board chairs of Division I institutions to determine how consistently boards at those institutions follow the 2009 statement’s principles and guidelines, realizing the implications extend beyond Division I.

The NCAA had not yet taken action regarding Penn State’s violations when we conducted the survey. Yet, from the beginning, survey participants and members of the advisory committee understood that whatever the NCAA eventually did would set a new pattern, and that the issues exceeded anything seen previously in intercollegiate sports. The advisory committee’s discussions and our own have concerned how to focus on universal principles that might enable all boards to carry out their responsibilities for institutional policy and accountability without letting Penn State’s issues become the core of the report. Penn State’s violations inevitably arise this year in any discussion of compliance, but current violations and NCAA actions elsewhere seem so far not to match what has been proved at Penn State. Thus our field of focus has to address both the recent and powerful case and the continuing mainstream of NCAA and conference actions.

We also knew from the beginning that conference realignment poses challenges to all who share responsibilities for governing and administering American colleges and universities. Yet we were cautioned that no one had seen the end of the process last summer—as was proved by the University of Maryland’s announcement this fall that it was moving from the ACC to the Big Ten—and more importantly that no one knew enough to predict the new institutional geography that the realignments are defining. Few prior to the Maryland board’s vote on the Big Ten had publicly addressed the governing board’s role and function with regard to such realignments, which continue to be a moving target.

Questions Concerning Board Performance

As part of our work on the report, we identified a broad range of issues involving college sports peculiar to governing boards, such as:

  • How to prepare new and continuing board members for the demanding work that lies behind sound policies for athletics and for institutions generally;
  • How to identify issues that cut across the various NCAA division and often affect smaller colleges and universities as surely as they do larger ones;
  • How to deal with the differences in governance between private and public institutions, and the perhaps more complex differences that distinguish public boards that govern systems from those that govern single institutions;
  • How to define board responsibilities for institutional integrity and both academic and financial stability; and
  • Perhaps above all, how boards can make their members’ core commitments to their academic and educational priorities public and consistent.

The AGB report reflects our best reasoning based on the survey data and our advisors’ collective wisdom about how to enable governing boards as they carry out their responsibilities for athletics. We have assumed that board members affirmatively intend to behave lawfully and ethically and to conform to the codes and regulations of the NCAA and the conferences. That assumption may want some defending: Not all board members have always conformed to those standards. Our reasoning and that of our report advisors persuade us that member education—not only when a board member is appointed but throughout his or her term—has to be the hallmark of boards that intend to do the right thing. The NCAA rules reflect complex realities. All of us know horror stories about violations, including violations involving board members.

Our survey found, in fact, that close to one-third of the respondents characterized the board’s preparation to oversee compliance with NCAA rules as neutral, somewhat poor, or poor. We also identified a number of other issues of concern regarding board oversight. The survey showed that many boards are engaged to a substantial degree, but a number of areas of responsibility must be strengthened. For example:

  • Fully one-fourth of all respondents stated that their institutions have no board policy on intercollegiate athletics.
  • More than one-fourth reported that their board is not well-informed about financial information concerning the athletics department and about whether it is supported by student fees, state appropriations, tuition, or other institutional revenues.
  • Only one-third of boards reported having sufficient information to oversee declared academic majors of student athletes or the demands that sports participation places on students’ time.

As we discussed the survey results and how to frame the report, the Penn State situation was in the news and on our minds. Advisory committee members wrestled with how boards at any college or university might forefend problems of the kind that Penn State is addressing. No one wanted to excuse the violations at Penn State. Long before the NCAA’s announcement, everyone understood that the Penn State case defines new territory: unprecedented abuse of children in one of the nation’s top universities, a university that most would describe as a state and national treasure, and one with long, previously distinguished sports traditions; violations for which no rules other than rules of moral integrity and personal accountability existed; and an all-but-universal belief, expressed in the news media, that Penn State’s board and president had failed in basic ways and over a long period of time. There were also brutal alumni attacks on trustees whose leadership seemed to crumble shortly after the disclosures of late last fall, along with highly visible efforts on the part of a few candidates for election to Penn State’s board to overthrow the board and even to approach and (in one quixotic instance) arguably intimidate members of the NCAA’s board, and more. As the story developed, the board elected new leaders, reorganized itself, and recognized the need to refocus on its appropriate responsibilities.

All of this allowed, Penn State’s crisis and continuing challenges can teach us more than the specifics of the case. For all of the controversy surrounding the trustees, they have as a body accepted the NCAA’s findings and apparently also Judge Louis J. Freeh’s independent report about the abuse scandal. They acted with what one justifiably might call due deliberation against university and athletics-department leaders, including a major campus hero (Coach Joe Paterno) and President Graham Spanier. And they refused to be plowed under by their critics, including some who now sit on the board.

Setting aside the so-far undemonstrated prospect that board members may have known, or more likely should have known, more than they have disclosed about Jerry Sandusky’s crimes and about conditions in the football program, and that they should have acted to bring in the police, Penn State’s situation is unprecedented. Yet this remains clear: Whatever the next challenge and wherever it may come, boards need better preparation for their business.

Conference Realignments and Institutional Oversight

Until recently, most public discussion of conference realignments appeared in the sports pages. That may be natural or inevitable, but it is not good enough. Notre Dame’s entry into the ACC makes clear that conferences have become something other than geographical arrangements or forums for periodic combat to resolve old rivalries. They may be those things as well, but the Notre Dame/ACC alliance suggests considerations of academic affinity, however imperfect, comparability in academic programs and purposes, and the intention to build future conference affiliations on new grounds. We do not know what went on during the negotiations between Notre Dame and the ACC, but we are struck by how quickly that alliance came to seem inevitable after it was disclosed.

The presidents who advised in the preparation of the AGB report cautioned us that no one really understands the realignments yet. The issues seem to differ from one major conference to another, and individual university concerns seem even more diverse. Clearly, some institutions win and some lose as the realignments occur. Few people are happy about all of them, and many of us feel the loss of old match-ups.

Boards face the peculiar issue that realignments or new affiliations can challenge both prior policy and institutional control. As secretive as the affiliation negotiations among universities have been, the secrecy may make sound business sense. Board members who have spoken on the new alignments have seemed ultimately satisfied, if after the fact. We have guessed from press reports that, by and large, board chairs and many board leaders have known and perhaps also approved actions involving their own universities. Whether or not they have also been aware of conference actions involving other universities as they have joined new conferences is a harder question and perhaps also a more frontal challenge to institutional controls of sundry kinds. That one does not personally like another university makes little sense as a basis for governance, but we know no process or procedure to give board members enough knowledge to make sound decisions about other institutions. Yet the realignments often predict future policy and sometimes also financial issues.

Responding to New and Larger Challenges

In prior times, criticisms of board members generally had to do with improper or even prohibited relations with athletes and their families or with unsound relations with employees, often coaches, and with what one might call unbridled boosterism, whether corrupt or not. The NCAA rules deal with those matters. Like it or not, violations have tended to be ugly and internally contentious, but ultimately cut-and-dried after the investigations, the sanctions, and the public notoriety.

Training has rarely been mandatory for board members who need to know and follow rules that are ultimately not greatly different from the rules that govern sound director conduct within corporations. Through our continuing work on the oversight of intercollegiate athletics, we have come to think that formal training should generally be mandatory and also that governance itself will become more effective as scholars and thought leaders pay serious attention to issues of the significance of Penn State’s current problems and the realignments. A rigorous body of analysis and literature is only now forming. Much remains to be done, perhaps especially in national gatherings of board members and their mentors where these issues become major topics rather than aberrations. Indeed, the complexity of these two issues seems to us to define new and larger challenges. Penn State’s ultimate violation (and the explicit basis for the NCAA’s action) has to do with institutional and personal compliance with fundamental rules of law and of civilized behavior. No one on any board believes that maverick or sick or evil employees, even if retired, should be allowed to molest children, or that university administrators and coaches ought to be above complying with laws that protect children. But what of the board’s less-codifiable, more complex obligation to define the institutional climate, including cultural and personal acceptance of legal obligations both to protect vulnerable persons and to report violations? Our advisors and we have come to believe this year that by and large these principles and others like them get little attention, and yet if one wants to adopt corporate language by describing this issue as “risk management,” the obvious risks are massive.

Similarly, conference realignments challenge existing models for training board members and for conducting board business. One can imagine circumstances in which boards really ought to know what their presidents and athletics directors discuss and say at conference meetings, what deals contained in conference understandings or contracts either bind or enable their universities, and certainly what intercollegiate athletics programs cost, who pays the bill, and with what monies. They should know what purposes suffer when athletics costs soar and how administrators and faculty members ensure that athletics programs contribute in affirmative ways to education and students’ social maturation.

Surely these are institutional control issues. Surely they are the business of trustees who properly have their noses in the university’s business and their fingers out. Just as surely, issues of this kind rarely or never turn up in programs for board education and renewal. So we take away from the work behind this report the realization that boards are far too important—whether as enablers or as consciences or as control entities—for board education not to rest on sound research or inquiry into these hard issues and not to deal effectively with them.

Recommendations for Boards

It is increasingly clear that the guidance in AGB’s 2009 statement holds truer today than ever before: “Boards and chief executives cannot wait until a scandal unfolds to motivate their interest in these complex matters, nor should board oversight be ceded to a small cadre of interested members. That intercollegiate athletics can attract, generate, or lose large sums of money and often is the institution’s most visible component compels institutional leaders to pay close attention. Consequently, boards should exercise appropriate oversight while avoiding micromanagement, viewing athletics with a dispassionate perspective.”

To that end, the AGB report puts forth three primary recommendations for governing boards:

  • The governing board is ultimately accountable for athletics policy and oversight and should fulfill this fiduciary responsibility. The board must establish high standards for transparency and ethical behavior and hold itself and the institution’s chief executive accountable. It should inform itself about the athletics program—including the risks and challenges—and engage in policy questions that address those issues.
  • The board should act decisively to uphold the integrity of the athletics program and its alignment with the academic mission of the institution. Boards should have protocols in place to review contracts for highly compensated personnel and indicators that their institution’s athletics programs contribute to the education and well-being of student-athletes. Boards should ensure that their members and everyone else at their institution behave lawfully and ethically. They should be informed of and consulted on issues related to conference membership and have final review of data ascertaining compliance with the NCAA and conference regulations.
  • The board must increase its span of knowledge by educating itself about its policy role and oversight of intercollegiate athletics. New board members, as part of their orientation, and all board members on a continuing basis should be informed about the business and challenges of intercollegiate sports, risk assessments, Title IX and other federal regulations, and other key issues.

We also urge the NCAA to include in its manuals a clear statement recognizing the ultimate responsibilities of governing boards of colleges, universities, and systems for intercollegiate athletics.

In addition, the report recommends that the ACC’s model for annual board education and for annual assurances of compliance on the part of board chairs be adopted nationally. Few remedies work as well as public disclosures of the interests, issues, and rules (including overt acceptance of responsibility under rules) that govern personal or board conduct. Public accountability begins with public disclosures and public acceptance of obligations.

As we imagine this model, it obligates presidents to provide suitable education for board members about the rules and to report significant violations to their boards—just as it obligates board members to learn and to use their learning to inform policy. The annual cycle of repetitions seems to us to keep these issues appropriately in front of boards and in the public eye. People who monitor board meetings—for example, news reporters—and witness the process of education as it occurs along with the chair’s annual signature of the compliance document ought to become better stewards of the public interest in sound policy and practice because they have seen board members taking part. Chairs who sign compliance statements and presidents who share their trustees’ obligations to comply must surely become more accountable—especially as students, faculty and staff members, and the public generally come to understand that once each year these persons must acknowledge their special responsibilities and roles, and make that acknowledgment a matter of public record.

As we conclude in the AGB report, when all is said and done, boards must function at a higher level of awareness and judgment when it comes to college sports. Division I athletics are an especially visible part of the higher education landscape, and if our key constituencies and the general public perceive that the rules for big-time intercollegiate athletics are slack and that money is the prime mover, then all colleges and universities will suffer. In truth, recent changes have taught us that boards need and want to expand their policy competence on both ends of a spectrum that may begin with uncommon and unexpected opportunities and continue through unanticipated crises. Boards must be educated and engaged in order to maintain a clear grasp of the issues.

Members of the Advisory Committee

Clyde Allen, board member and immediate past chair, University of Minnesota

James Barker, president, Clemson University

Tom Buchanan, president, University of Wyoming

Carol Cartwright, former president, Bowling Green State University; president emeritus, Kent State University

Scott Cowen, president, Tulane University

Antoine Garibaldi, president, University of Detroit Mercy

Walter Harrison, president, University of Hartford

Susan Herbst, president, University of Connecticut

William Hubbard, board member and former board chair, University of South Carolina

Jack Jewett, former board chair, Arizona Board of Regents; member, University of Arizona Foundation; vice chair, board of directors, AGB

Clifford Kendall, board member and former chair, University System of Maryland; secretary, board of directors, AGB

Robert W. Kustra, president, Boise State University

Carolyn Long, former board chair, West Virginia University

Thomas Ross, president, University of North Carolina