In a previous article titled “NCAA Transfer Guidelines Look a Lot Like Non-Compete: Another Example of How Student-Athletes are Treated as Employees” I discuss the arcane NCAA transfer guidelines and conclude that the NCAA continues to assert that student-athletes are not employees, however, their rules suggest otherwise. The newest “tightening” of transfer guidelines looks just like a non-compete, which typically is used to restrict an employee’s freedom.
This isn’t the first time one of our authors has discussed the transfer guidelines. In his extensive analysis of the Year in Residence Rule, UB Law Alum Joseph Schafer notes:
“[T]he Year in Residence Rule functions to prevent the small percentage of Division I athletes who are NBA and NFL prospects from shopping teams to increase their draft stock. Yet only 1.1% of 18,684 men’s basketball players and 1.5% of 73,660 football players go on to compete professionally. Unfortunately, the remaining 98% of Division I football and basketball players are forced to abide by the same rules as the few who would go on to a professional career. So, for instance, if a student-athlete transfers to a new school to pursue a major her previous school did not offer, she must sit out one year. If a student-athlete transfers due to a coaching change, where the new head coach chooses not to renew his scholarship, he will also be held from competition for one year. Finally, if a student-athlete transfers because he has been verbally or physically abused by a coach, he will also be forced to sit out a year.” Joseph W. Schafer, NCAA Division I Transfers “are now basically screwed”: The Battle Against the NCAA’s Year in Residence Rule in the Seventh Circuit, 66 Buff. L. Rev. 481 (2018).
2019 saw many new arguments for why the NCAA should change transfer years and although changes have not been officially proposed, the momentum continued this past week when a second Power 5 conference joined the fight to overthrow the current transfer system. The Big Ten was the first conference to support the one-transfer opportunity with the Atlantic Coast Conference joining them this past week. The ACC stated: “During the league’s annual winter meetings the ACC discussed the transfer environment and unanimously concluded that as a matter of principle we support a one-time transfer opportunity for all student-athletes regardless of sport. As a conference, we look forward to continuing the discussion nationally.”
Currently, under the Year in Residence Rule Division I student-athletes who choose to transfer from one institution to another must sit out for an entire year before they are eligible to play. Does this sound like an anti-trust issue? It should. However, the Supreme Court has sided with the NCAA on more than one occasion to “preserve amateurism.” Although the Sherman Act applies to the NCAA, most of its rules are justified because they foster competition among its institutions.
The new proposal would allow Division I student-athletes in all sports to transfer and compete immediately if it is the student-athlete’s first time to transfer and if they meet academic and disciplinary requirements. On the surface it may look like a revolutionary change for the NCAA, but in reality it is more than fair (probably too favorable to the NCAA).
At the end of the day the proposed change, detailed in a news release, allows a first-time four-year transfer to compete immediately if they receive a transfer release from their previous school, leave that school academically eligible, maintain their academic progress at their new school, and leave their previous school under no disciplinary suspension. Although not completely ironclad, the NCAA will still be asking quite a lot from student-athletes in order to transfer and become immediately eligible to play at their new institutions. First and foremost, receiving a transfer release from school is not the easiest task for a student-athlete to accomplish.
What is even more concerning is that this is already the rule for student-athletes involved all sports except for baseball, basketball, football, and men’s hockey. What a surprise – it’s the student-athletes that make the most money for the schools who aren’t allowed the simple luxury of freedom to transfer schools. Imagine being a young college student who decided at the age of 17 to attend a certain college being trapped for the next four years. Not to mention the inherent inequity between the students who play the “revenue” sports and those who do not – a lawsuit may certainly be lurking out there just waiting for the right case at the right time.
Given how slow the NCAA typically drags its feet, it is astounding that the ACC has jumped onboard with what the Big Ten proposed just this last fall. It seems that the transfer issue will continue to heat up for the NCAA. The possibility of new rules by the 2020-2021 season exists and if so, we would see this play out with college football first.
Where there is a will the NCAA will get its way. But maybe not this time.