Statement of the American Council of Trustees and Alumni Regarding Lawsuit Against the NCAA
May 30, 2013
Regardless of the ultimate outcome, the lawsuit filed today by several Penn State trustees, the Paterno family and others against the NCAA lays bare one of the biggest problems plaguing American higher education: the NCAA’s deliberate marginalization of trustees in the oversight of collegiate athletics. Trustees are wrongly ceding their authority and putting the taxpayer dollar and students at risk. NCAA practices must change.
While many have called on the NCAA for athletic oversight and policy, the real authority must rest with those who are legally responsible—namely, college and university trustees. Whether it’s agreeing to an NCAA sanction or switching a conference, governing boards must be actively involved in decisions of significant financial impact in order to fulfill their legal and fiduciary responsibilities.
Following NCAA and AGB guidelines, boards currently delegate substantial authority in athletic matters in ways that undermine their oversight responsibilities. At Penn State, the president unilaterally signed a $60 million dollar consent decree, waiving due process rights, and foregoing any open and thoughtful debate by the full board about the scope of the NCAA’s authority.
At Maryland, the president entered unilaterally into a confidentiality agreement and negotiations with the Big Ten without consulting the full board. Even if system lawyers now argue that board approval was not technically required, surely such decisions, putting millions and millions of dollars on the line, merit informed board consideration.
NCAA practices essentially require trustees to abdicate their responsibility as fiduciaries, and put students, the public and taxpayer dollars at risk by effectively forcing trustees to rubberstamp decisions by their presidents. By any definition, NCAA decisions of the kind seen at Penn State and Maryland meet a threshold of “materiality” to the institution’s well-being—and the public trust—that mandate trustee oversight.