COVID-19’s Legal Ramifications Part 2: What Dead Period? NCAA Schools Defy Recruiting Restrictions During COVID-19

This series is a discussion of the legal issues in the sports world amid the novel coronavirus. This is a first for our forum, where each of our contributors will be authoring at least one post, discussing either the sports world now, or what will likely happen in the future, during this unprecedented time. One post will be published each day, focusing on a new topic. Please check in each day for updates and feel free to comment with your questions or comments. Together, we will navigate this new landscape. #ubsportslaw #ublawsportsforum

• Part 1: Where is my Refund
• Part 2: What Dead Period? NCAA Schools Defy Recruiting Restrictions During COVID-19
• Part 3: The Year of the 5th Year Senior
• Part 4: Not Returning Seniors may Violate Title IX
• Part 5: Predicting Future Liability
• Part 6: Whose Draft Is It Anyway
• Part 7: I’ll be Home for Christmas
• Part 8: Credibility and Corona
• Part 9: Simulated Sports Betting

What Dead Period? NCAA Schools Defy Recruiting Restrictions During COVID-19

In 1979, a few colleges and universities that made up the College Football Association decided to buck the NCAA’s television policies. Starting in 1951, the NCAA began a process to fix the price and output of the airing of college football on television to protect the competitive balance. The CFA, which was made up of schools within the five powerful conferences SEC, ACC, SWC, WAC, and Big Eight, with some independents, decided to sign their own television contract against the orders of the NCAA. The NCAA responded with the threat of banning the CFA schools from being members of the NCAA. The CFA decided to file a lawsuit, and after two appeals, it was heard in the Supreme Court.

NCAA v. Board of Regents is not a landmark case in the Supreme Court’s terms, but it is a landmark case by changing post-secondary education forever. The Supreme Court upheld the lower courts’ ruling that the NCAA’s television policies were a horizontal price-fixing and output scheme, and the NCAA’s argument to protect competitive balance was not justified. However, the Court acknowledged that using per se analysis was incorrect because, to have college football at all, there had to be a horizontal restriction to create rules to standardize play.

The Supreme Court’s ruling has allowed the NCAA to apply rules to standardize play across the now the more than 1,200 schools and 460,000 student-athletes competing in 24 sports in 2020. The NCAA Bylaws, which initially had humble beginnings, currently consists of 440 pages detailing rules to maintain competitive balance, with one of these rules being Bylaw 13.02.5.5, the Dead Period.

A dead period is a period of time when it is not permissible to make in-person recruiting contacts or evaluations on or off the institution’s campus or to permit official or unofficial visits by prospective student-athletes to the institution’s campus. It remains permissible, however, for an institutional staff member to write or telephone a prospective student-athlete during a dead period.

• NCAA Bylaw 13.02.5.5 – Dead Period

The spring is an important season for NCAA schools and potential student-athletes. It’s the last season for fringe high school athletes to show their skills to NCAA schools in hopes of a spot on a college team, hopefully resulting in a scholarship.

Then COVID-19 hit.

The NCAA instituted a dead period on March 13, 2020, to limit the amount of in-person contact schools could make to recruits through April 15, 2020. Additionally, with the dead period institution, the NCAA also banned all signings of National Letters of Intent and financial aid agreements – also expiring on April 15. The National Letter of Intent, also known as an NLI, is a contract signed by a prospective student-athlete that binds them to the school to play a sport. Usually, an NLI is accompanied by a financial aid agreement, providing a full or partial scholarship to the student-athlete. The dead period accompanied by a ban on NLI and financial aid agreements was instituted to maintain competitive balance amongst the schools. Not instituting an NCAA-wide ban would allow schools that haven’t been shut down, or institutions with nearly-unlimited resources, to court recruits as some campuses are entirely shut down.

Well, some of the schools making up the Power Five are not complying. The schools that made up the now-defunct CFA now make up the Power Five conferences, consisting of the ACC, SEC, Pac-12, Big Ten and Big 12, and they are now defying the NCAA’s rules again. As Sports Illustrated’s Pat Forde reported, some schools have not complied with the NCAA’s order and should expect a Notice of Allegation. In other words, the NCAA caught you and will provide notice in writing. Louisville, LSU, Alabama, Arizona, North Carolina State, Kansas, Oklahoma State, University of Southern California, Texas Christian University, Auburn and Creighton have all been reported to receive, or are in the process of receiving, Notice of Allegations for failing to comply with the NCAA’s COVID-19 recruiting restrictions. Outside of Creighton, all of these schools are members of a Power Five conference.

Schools breaking NCAA bylaws should not come as a surprise, as there is a reason why there are 440 pages of rules. Schools are always looking for loopholes to increase their advantage over competitors, and it has only gotten worse over time. The competitive imbalance has grown to the point that the NCAA has used its $400 million emergency fund to help smaller colleges and universities stay competitive with the larger schools.

There has been a growing divide between Power Five football-playing schools and non-Power Five schools, frankly, since Board of Regents. The NCAA does not sanction a national champion in FBS football, as the champion is crowned through the College Football Playoff Tournament, a consortium between BCS Properties LLC and ESPN, not the NCAA. The Power Five schools receive 71.5 percent of the 12-year, $5.64 billion contract. Also note, the College Football Playoff consists of three games a year.

The lack of NCAA control over large college football is ironic, yet troubling. The Intercollegiate Athletic Association, the precursor to the NCAA, was created with the help of President Theodore Roosevelt to create a safe, standardized ruleset for college football. As time went on, the NCAA did not sanction a national championship tournament for football, as the NCAA allowed teams to play in bowl games. Thus, the NCAA had to find other ways to control the sport and settled on television. However, after Board of Regents, the NCAA could only create a standardized set of rules for competition and not restrict any other methods for schools to differentiate themselves. What has resulted is the creation of multi-million dollar palaces, also known as football stadiums, and football coaches making roughly 87-times more money than their governors (Dabo Swinney of Clemson University makes $9.3 million a year, compared to South Carolina’s Governor Henry McMaster’s $106,078 salary.)

The Power Five has even strengthened to become the autonomous five through NCAA Bylaw 5.3.2.1. The five major conferences can adopt or amend their own legislation, with one of the areas being recruiting restrictions under Bylaw 5.3.2.1.2(d). So, the question must be asked, how much power does the NCAA have over the large schools?

Frankly, not too much.

If the NCAA throws the book at these schools, they have the power to create their own set of rules to stay within the NCAA or just outright leave and form another organization. Additionally, the COVID-19 dead period does not affect the larger schools that much. They have all of their games on television, their merchandise is featured on the Nike, Adidas and Under Armour websites, and student-athletes want to go to their schools without even being contacted by representatives as recruits want to play for Dabo Swinney of Clemson and Nick Saban of Alabama. The majority of these schools’ recruiting isn’t necessarily through their actual recruiting, it’s through their image.

It is the smaller schools and the passed-over student-athletes that are most hurt by the COVID-19 dead period. The smaller schools with less of a domestic scope use this period to find over-looked student-athletes, the ones who are not on the ESPN top 100 lists. While the rule’s purpose was to maintain a competitive balance, the damage is already done. The more significant recruits have already committed, signing NLIs and receiving financial aid packages. The larger schools’ images through big-name coaches and huge apparel contracts do the majority of their recruiting.

However, what happens to the smaller schools and less sought after recruits? Do future student-athletes want to play for Lance Leipold at Buffalo without visiting the campus? Does the next Ja Morant — a lightly-recruited basketball player who became the second overall pick in the 2019 NBA Draft — get a chance playing at the Division I level? COVID-19 certainly increases the odds of UB not getting the players it needs to stay competitive, and the under-the-radar recruits not getting the opportunities they need to thrive.

Even though the NCAA’s motive may have been good, the COVID-19’s dark period with the Power Five’s violations do nothing but prejudice the smaller schools and smaller recruits, thus widening the gap between the powerful and the rest of the group.