Repeal of Permission to Contact is the first of many steps the NCAA needs to take to do right by Division I transfers.
Last Wednesday afternoon, the NCAA altered one major pillar of its current transfer regime. Starting October 15, where a student-athlete who previously sought to change schools needed to secure a release from a coaches or the athletics administration to even begin the transfer process, now the student-athlete can simply inform his or her current school of the intention to transfer, and the school has no choice but to put the student-athletes on a database of all Division I transfers, and the transfer process can begin. Translation: coaches cannot block transfers any longer.
According to the NCAA’s Press Release: “[the] rule change ends the controversial practice in which some coaches or administrators would prevent students from having contact with specific schools. Conferences, however, still can make rules that are more restrictive than the national rule.”
The end of the Permission to Contact era is unquestionably a victory for the student-athletes, as it effectively puts the transfer decision in their hands and opens new avenues that were not previously available. According to Tim Nevius, founder of Nevius Legal, a New York City law firm dedicated to protecting and advising college athletes, “removing the permission to contact restrictions is a big step in the right direction because it finally allows athletes to be recruited and get financial aid in situations that they couldn’t before. From a strictly financial standpoint that is very important for a lot of people and helps ease financial burdens that existed before.”
Where transfers used to have to ask their schools for permission and be granted approval to even speak with another school, now they can opt to transfer without worrying about what coach thinks. As schools seek to remain competitive in a tough conference or break into a new echelon of competitiveness, greater scholarship opportunities will be available for student-athletes who won’t feel as confined to their current schools and can pursue better opportunities, financially, athletically and academically.
Nonetheless, Nevius also recognized in an article with CBS’s Dennis Dodd, that we are far from where we need to be with transfer regulations: “[d]eclaring a victory is silly. We used to deny people the ability to contact another school and get financial aid. But, by the way, we still prevent them from playing.”
Yes we do–and that is the kicker for me. I recognize getting rid of Permission to Contact is the first time the NCAA has come down from its high horse with regard to transfer regulations, but I don’t believe it is enough.
Although student-athletes who seek to transfer can now do so on their own accord, the NCAA will still force these transfers to sit a year before competing for their new universities. NCAA Bylaw 188.8.131.52, better known as the Year in Residence Rule, requires student-athletes who seek to transfer and participate in Division I FBS football, men’s and women’s basketball, baseball and men’s ice hockey to sit out one full academic year before being able to take the field, court or ice.
The NCAA’s outward justifications for the rule are simple–student-athletes transferring institutions need to be comfortable in the classroom before they can endure the rigors of intercollegiate athletic competition. Yet, it exempts all sports except its revenue generators (basketball, football, baseball and men’s ice hockey) from the rule, and allows junior college transfers to compete immediately upon transferring to a Division I school. Riddle me this: how is a junior college transfer or a true freshman more adequately prepared for the rigorous academic environment at a D-I institution than an individual who is currently academically eligible at a four-year university? In most situations, these individuals are not, which brings to light the true justification–to prevent free agency in NCAA Division I revenue-generating athletics.
The NCAA has been able to legally keep this otherwise unlawful restraint on trade in place based on the Supreme Court’s 1984 holding in NCAA v. Board of Regents, which reasoned that the organization’s amateurism bylaws were presumptively competitive under antitrust law. Yet the NCAA of 2018 is not the NCAA of 1984, especially once you look at the billion-dollar revenue streams.
Due to the inconsistency between the over thirty-year-old dicta on which the NCAA’s amateurism bylaws were upheld in Board of Regents and the current multibillion dollar industry that college sports have become, between November 2015 and November 2016, the NCAA was sued three separate times in federal court over the Year in Residence Rule. One of the cases, Deppe v. NCAA, has been heard on appeal in the 7th Circuit and is still awaiting a decision. At the institutional level, the Committee to Reform College Basketball (a.k.a. the Rice Committee) suggested tying transfer eligibility to GPA and keeping the year in residence rule in place because Division I basketball transfers are at an all-time high. At the Knight Commission hearings, a panel including one student-athlete, Noah Knight, debated whether the year in residence should be tied to GPA.
And despite the calls for reform, transfer rule change lags behind.
So, although ridding the rulebook of Permission to Contact is surely a step in the right direction, it is just one of number of changes that need to be made. Given its failure to reform an increasingly broken system, it is unreasonable to expect the NCAA to institute actual substantive rule changes out of the blue that hint at altering the organization’s current model of amateurism, which is still valid under current Supreme Court antitrust jurisprudence. The NCAA has proven time and again it will cling to the argument that its amateurism rules are presumptively procompetitive, no matter how antiquated the rationale, because the organization still believes it is the protector of the revered tradition of amateurism in the United States.
As such, transfers will continue to be put into precarious situations by coaches and administrators who are too petty to let them leave. As Gary Gutting of CBS wrote on this issue in 2015: “there’s a pretty terrible unintended consequence to the NCAA no longer allowing waivers for transfers to play immediately, and that pretty terrible unintended consequence is this: Players who are run off by their coaches are now basically screwed.“
‘It’s wrong,’ said one college coach who requested anonymity because he didn’t want to speak out publicly against the policy. ‘You’re telling me I can sign a kid, keep him for a year or two, decide I misevaluated him and pull his scholarship, and then that kid has to to sit a year no matter what? That’s [expletive] up, man. That’s just [expletive] up.'”
And thus I conclude this post the same way I did in my comment recently published in the Buffalo Law Review on this exact same topic:
“Continuing to view NCAA Bylaw 184.108.40.206 as presumptively procompetitive [turns] a blind eye to the evolution of amateur athletics in the United States and also to the personal needs of student-athletes. The NCAA is earning money hand-over-fist, but depends on its student-athletes to drive its lucrative business model. The FBI investigation and indictments in Fall 2017 and February 2018 showed the inherent inconsistencies of today’s NCAA, and proved to be a step in the right direction for reclaiming student-athletes’ rights. O’Bannon was another step in making this model a little fairer for the young men and women who allow it to thrive. Future cases should follow its lead by no longer granting NCAA bylaws the antitrust deference they have been given historically. . . . [T]he NCAA must work to understand that its student-athletes are not commodities. In the end, where the Year in Residence Rule may be black and white, the transfer cases for the student-athletes subject to it are not.”