Ep. 19: U.S. Representative David Kustoff (TN-08)

On Tuesday, LEAD1 Association (LEAD1) released its 19th episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 President and CEO, Tom McMillen, interviewed Congressman David Kustoff (R-TN), who recently introduced the “NCAA Accountability Act of 2021” in the House of Representatives in late 2021. Kustoff’s bill would make the NCAA enforcement process more closely resemble the U.S. legal system, while providing Department of Justice (DOJ) oversight into college sports. The timing of the episode is relevant as just prior to Kustoff releasing his bill, LEAD1 submitted its recommendations, endorsed by 75 LEAD1 athletics directors, to the NCAA to improve the NCAA infractions system. Here are some of the important takeaways from the interview: 

1. Kustoff’s bill includes explicit due process requirements that would more closely align NCAA enforcement proceedings with the traditional U.S. legal system. NCAA v. Tarkanian, a 1988 U.S. Supreme Court decision, ruled that the NCAA is not a “state actor” subject to federal due process requirements. Because of this decision, the NCAA is not required to implement such due process standards as a governmental entity. Accordingly, Kustoff’s bill would implement certain due process standards on the NCAA including a two-year statute of limitations for bringing about allegations of infractions on institutions (including notice requirements), time limits on adjudicating cases, mandatory arbitration in certain circumstances, and DOJ supervisory authority over the NCAA.
2. NCAA member institutions could compel entry into arbitration. The NCAA currently plays the role of “investigator, prosecutor, judge, jury, and executioner,” said Kustoff. Under Kustoff’s bill, if there were a dispute regarding the NCAA’s punishment of a member institution, the member institution could compel entry into arbitration. Such arbitration would help make the current system more “independent” (away from the NCAA) and resolve disputes in a timely manner. The arbitration would be conducted by a three-person panel with the NCAA and member institution each appointing one arbitrator of their respective choosing and the third arbitrator would be appointed in agreement by the two arbitrators appointed by each party. Institutions, athletes, fans, and legislatures would all have “more faith” in such system, said Kustoff. 
3. Kustoff views improving the NCAA infractions system as a bipartisan issue. Although there are difficulties in passing anything in the Congress, Kustoff views his bill as one where Republicans and Democrats align. The Congressman anticipates that the bill may pass the House Committee on Education and Labor by the end of the year, with a companion bill coming soon in the Senate.  Questions, however, remain about what role outside entities should play in securing fair and effective “law” enforcement by a private organization. In fact, the issue of outside entities providing oversight over the NCAA is not a new one. In the early 1990s, McMillen introduced legislation in the Congress that would have required the NCAA to provide “more” due process in all enforcement proceedings. But perhaps the NCAA infractions system has reached a tipping point with stakeholders more and more frustrated about some of the issues addressed in Kustoff’s bill.

More in the recording can be found on the intersection between the NCAA, the Congress and due process considerations.