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Statement of Howard Wakeland Hearing on December 15, 2006 This Congressional hearing is not about Chief Illiniwek at the University of Illinois nor Indian imagery found in intercollegiate sports. This is about actions of a powerful private defacto monopolistic organization which controls most aspects of U S intercollegiate sports activity. This is about an organization which by-in- large has provided strong positive leadership and control for intercollegiate athletics. This is about how this powerful organization has undertaken a Political Correctness initiative illegally, as defined by their own constitution, and by the terms of the CONTRACT they have with their Institutional Members. Further this hearing is about whether legislation is needed to defend NCAA Institutional Members from infringement upon their institutional autonomy when NCAA attempts to administer enforcement beyond their institutional CONTRACT. Institutional Members may join NCAA in a legally binding CONTRACT. For U S collegiate institutions this is the only ” sports game in town”. If you are not an NCAA member it is nearly impossible to schedule meaningful sports competition. In reviewing this matter I have leaned heavily on the North Dakota University Motion for Preliminary Injunction against NCAA action. The CONTRACT ensures the autonomy of the Member Institution in all matters with the exception of those sports related rights granted to NCAA and explicitly detailed in the CONTRACT agreement. NCAA illegally initiated a policy to eliminate the use of Native American names, symbols, representations, etc. used by some of its members (referred herein as the Imagery Policy). The Imagery Policy is an illegal NCAA action because there is no mention of Indian imagery prohibition in the CONTRACT. The Imagery Policy is illegal because it breeches promised institutional autonomy. The Imagery Policy is illegal because the institutional “CONTRACT specifies that “policy” can be enacted only by the NCAA Intuitional Members. The Executive Committee of NCAA specifically does not have that power and therefore its Indian Imagery policy is void. The Imagery Policy is illegal because NCAA failed to abide by its own Constitution and By Laws which empowers only the Presidents and Governmental units of each of the three NCAA Divisional units to designate sanctions and penalties. The Imagery Policy is illegal because the NCAA three Divisional units considered sanctions based upon the Imagery charges and recommended that no sanctions be assessed. The Executive Committee is not empowered to overrule Divisional governments but did so. “The Executive Committee has also breeched the CONTRACT of fair play by:
Allowing secret committee testimony from a faculty member of a Member institution without the Member institution's knowledge or approval and not providing a similar opportunity for an official institutional representative. Appointing a Minority Opportunities and Interests Committee of members nationally recognized as biased individuals in this venue. A continued litany of improper actions by NCAA can be cited. Institutional appeals to NCAA action liberally use negative descriptive terms such as illegal, dishonest, unprofessional, arbitrary, factless, sham, bullish, etc. The correction of NCAA’s overly zealous behavior will be made by its Institutional Members in mass. This is certainly not NCAA’s best administrative and management hour. We are not here to “try” NCAA. This account has been given to describe the overzealous nature of the recently imposed Imagery Policy. We are here to consider whether Member Institutions need (deserve) federal legislation to protect their autonomy in the face of overzealous NCAA actions. Such actions have major financial, competition, time and reputation connotations. This is well documented in the expensive and time consuming appeals made to NCAA in recent months objecting to the Imagery Policy. What are the alternatives for a Member institution? The institution can leave NCAA membership! This would be tantamount to eliminating their sports program. Again, NCAA is the only game in town. Or the Member can engage NCAA legally in a costly, lengthy and most likely a lopsided endeavor while placing their programs in a stupor. Neither of these choices is desirable – maybe even impossible. Under such circumstances guaranteed institutional autonomy is at least a partial defense against overzealous NCAA initiatives.. Member institutions enter into a NCAA CONTRACT knowing the limits of their jurisdiction. The only autonomous conditions they give up are specifically stated in the CONTRACT.. They do not expect nor endorse NCAA attempts of jurisdiction beyond that specifically spelled out in the CONTRACT. There are other issues that NCAA may wish to illegally legislate – faculty salaries, educational offerings, ethnic faculty concerns, equal gender representation of coaches, etc. The Imagery Policy demonstrates how improper NCAA actions can cause major institutional problems. Had legislation like HR5298 been in place prior to the illegal Imagery Policy it would have saved the University of Illinois immeasurable staff time and probably in excess of $500,000. Preparation for legal action by North Dakota University is probably in excess of a million dollars. It is not unreasonable to estimate that the combined cost of defense efforts by all schools subject to the Imagery Policy is in excess of $10 million. A simple legislative action insuring institutional autonomycan save literally millions. Ancillary comments. Initially HR5289 used broader language encompassing other organizations providing services to institution and also having a tendency to overstep their authority and charter. Accrediting agencies such as the North Central Accreditation Association are capable of similar overzealous actions. Their accreditation visits have tended to magnify the Imagery concern though it was not an accreditation issue. |