REPORT OF THE NCAA EXECUTIVE COMMITTEE

SUBCOMMITTEE ON MANDATORY BINDING ARBITRATION

ACTION ITEM.

a. Recommendation. The subcommittee recommends that the Executive Committee not support the concept of mandatory binding arbitration as a condition of membership. Further, the subcommittee recommends that the Executive Committee implement, as operating policy for the NCAA general counsel, increased effort to initiate mediation, where appropriate.

b. Rationale. During the course of its review, the subcommittee received a wealth of information outlining the benefits and possible concerns associated with mandatory binding arbitration, examined from a variety of perspectives, including conference representatives, institutional administrators and affiliated organizations. During its most recent meeting, the subcommittee also reviewed an opinion from a law firm specializing in anti-trust law and received feedback from the general counsel's advisory board, a group comprised of institutional general counsel that frequently discusses issues related to college athletics. In arriving at its conclusion, the subcommittee determined that the concerns and potential costs associated with implementing mandatory arbitration outweighed the perceived benefits. The subcommittee noted that the possibility of costly litigation continues to exist despite an agreement to arbitrate, inasmuch as the risk of litigation runs from the beginning of the dispute through and beyond the arbitrator’s award. Additionally, the subcommittee noted that such a policy, based solely on cost savings grounds, could expose the NCAA to antitrust liability.

The subcommittee also discussed the possibility of mandating facilitated mediation. The group rejected this option because, historically, only a small percentage of cases fall within the realm of this form of dispute resolution. However, the group agreed that, where possible, NCAA general counsel should move toward mediation. Finally, the subcommittee discussed the possibility of implementing a rule requiring Indiana as a forum for any litigation brought against the Association. The group, while considering this option to be quite favorable for the Association generally, agreed not to make this recommendation because of the potential economic hardship to institutions and coaches

Committee chair: Phillip C. Stone, Bridgewater College (VA)

Staff liaisons: Elsa Cole, general counsel

Bernard Franklin, governance and membership

Delise O’Meally, governance and membership