Last week, the NCAA Division I Committee on Infractions (COI) issued a notable decision. In this week’s Film Room, we draw out underreported aspects of the decision that shine a light on significant features of college athletics’ new regulatory structure, which now includes multiple regulatory bodies: the NCAA and the College Sports Commission.
We also note another athletics-related Video Privacy Protection Act class action filed within the past week.
Recent COI Decision Informs Regulatory Approach
Last week, the NCAA Committee on Infractions issued a notable decision that has been the subject of much press, including detailed articles by Ross Dellenger in Yahoo! Sports and by Pete Thamel and Dan Wetzel for ESPN.
An aspect of the decision that has not garnered much attention is the fact that the main bylaws at issue remain in force even following the major changes to the regulation of college athletics implemented over the past year. For reference, see this helpful NCAA publication from the spring, which previewed bylaw changes later approved by the Division I Board of Directors after the court’s approval of the House settlement.
While the College Sports Commission (CSC) has been established to regulate critical and economically sensitive institutional cap compliance and third-party NIL dealings, large swaths of conduct remain under the purview of NCAA enforcement, including legislation governing academic progress and misconduct, recruiting, head coach responsibility, cooperation, and the expectation of institutional monitoring and control.
The membership still awaits additional details from the CSC regarding its procedures, including in hot-button areas sure to draw varied reactions, like cap circumvention rules and penalties. When published, these standards will be important to incorporate in institutional rules education and monitoring efforts. Some have referred to this period as a deregulation of college athletics. The opposite seems more accurate: With an additional regulator (the CSC) and a related new set of policies and procedures, plus the additional layers of state and federal law considerations, the institutional athletics function confronts more regulatory and legal considerations than ever before.
It’s understandable that the CSC is being circumspect in connection with the enactment and publication of its procedures. The intense focus in the decision on existing and deeply considered NCAA legislation and infractions procedures—including the duty to cooperate and investigative standards—demonstrates that designing a structure that garners uniform agreement is exceedingly challenging.
Another VPPA Lawsuit Targets Athlete Data
As we previously noted, sports entities have been subject to a wave of class action lawsuits alleging violations of the Video Privacy Protection Act (VPPA). This past week, Whoop, Inc.—creator of the popular fitness tracker Whoop Strap—was sued in a class action lawsuit alleging data privacy law violations, including of the VPPA.
Among other things, plaintiffs allege that Whoop unlawfully disclosed to third parties sensitive personal data of its fitness tracker and app users. The recent VPPA lawsuits warrant a close eye from entities that share video and track athletes’ data.
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