Thursday, April 19th, 2012...2:47 pm

NCAA Basketball’s Transfer Restrictions: Valid?

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The biggest story in College Basketball this week is not Kentucky’s starting five going to the NBA, but instead the debate over transfers. The story hit a fever pitch this morning when Wisconsin Head Coach Bo Ryan went on ESPN Radio’s Mike and Mike in the Morning, to justify his recent decision to “block” the transfer of Jarred Uthoff to twenty-five schools. (Listen to the interview here: ESPN). You can read the full story of the episode here, but basically, Uthoff, a redshirt freshmen has decided to transfer. Per the terms of his scholarship, Uthoff had to ask for a “release” to contact other schools. Bo Ryan, as many other coaches have done recently, restricted such release to dozens of schools, including all Big Ten teams, Marquette, Iowa State and the entire ACC. College basketball fans and media members seized on this story, bringing it to the forefront of sports news. Ryan, apparently feeling the pressure, agreed to go on Mike and Mike to clarify his position.

Let’s just say he did not engender much sympathy today. Ryan’s arguments can basically be summarized in two ways: 1) everyone else does this so I am doing it too and it’s not fair for me to be criticized; and 2) “the restrictions” exist solely to force the student-athlete to communicate with either the coach or administrator to tell “why they are transferring.” The theory behind excuse #2 is that there is an appeals process by which the student can speak to an athletic administrator and get the “block” removed.

Judging by the reaction of college basketball insiders/media members, those arguments don’t have a whole lot of merit. Here is a sampling from Twitter (we are now officially social media proficient here at SELS):

[Ed’s note: sorry if those aren’t clear. The point was that Twitter was very anti-Bo this morning. Check out feeds from Seth Davis, Jeff Goodman and Andy Glockner for more of the specifics.]

To be fair to Ryan, yes other coaches are restricting transfers. Michigan, South Carolina, Western Kentucky and others have similarly had issues with transfers and “blocked schools.” Though Ryan certainly overstated his case, based on this CBS Sports report. Last year there was a high profile incident at St. Joes with Head Coach Phil Martelli not releasing one of his players to any school (that story was big in the college basketball world but did not make into the mainstream sports media as this one has).

Ryan’s two prominent justifications, listed above, don’t move the needle too much. The fact that everyone else is doing it, even if true, is bogus. To make a parallel to antitrust law, cheating on an agreement is not an cognizable benefit. Same here, because others engage in arbitrary restrictions does not make it valid for the next coach to do it. Second, forcing a student to go through an appeals process is silly, for if the appeal process is going to make an difference, it would have to undo these restrictions. If the block on some schools will eventually be lifted, why put it on in the first place? Neither of those make any sense.

But Ryan did make reference to a valid argument: that scholarships come with restrictions governed by the NCAA, and the scholarship is a contract binding on both sides. In other words, these transfer restrictions are like the standard non-compete clause. And in some ways that makes sense. This school is paying for your education in return for your performance on the field; among the conditions of said agreement are transfer restrictions. The NCAA governs amateur sports and has valid interest in maintaining certain eligibility criteria, etc. Makes sense in some ways. The next question would be whether the ability to restrict where a student-athlete can transfer to are in this agreement, and if so, is it enforceable.

Now it is of course hard to answer this question without the actual scholarship agreement to look at, but we can draw some conclusions from what we know. Transfers are restricted by the NCAA as part of its determination of eligibility, completely apart from the standard language in scholarship agreement (though I am sure the language confirms this policy). Absent a waiver, every basketball player who transfers must sit out a full year, measures by the NCAA in semesters. That restriction, as alluded to above, is perfectly valid because the NCAA has an interest in promulgating eligibility requirements that incentivize stability and real reasons for preventing the free jumping of player from school to school. I’m not sure many would argue against this.

But this still leaves us with the issue of whether a coach/school can restrict transfers to certain other schools. I might accept such an argument if not for this fact: college scholarships are one-year renewable agreements. In other words, a school can cut any of its scholarship players lose at the conclusion of the academic year, leaving no recourse for the player. So the legal question would be, if these agreements are valid for one year, why should schools be able to control what the player does the following year? And really the question is two years down the line because in nearly all situations, the player must sit out the next year from competition.

The easy answer is that a school would exercise its renewal option to “hold” the player to his scholarship in order to continue to control his future destination. But if that is that case, especially in light of the fact that student athlete’s do not negotiate their scholarships (they are forced to sign a standard agreement in order to obtain scholarship money), this begins to look like a contract of adhesion. By that, I mean that there is no meeting of the minds, in that the player has not agreed to the conditions, he has instead signed an unfavorable deal due to a lack of bargaining power. I’m not sure the argument is perfect, but I do think a compelling argument could be made to a court that some conditions of the scholarship, like this one, are unenforceable.

Let me clarify by saying that the whole agreement is not unenforceable [Eds. note: apologies for the double negative; we are using the term of art here.] just that this particular condition, particularly if it is not spelled out in the scholarship agreement, is dubious. And the evidence seems to indicate that this power given to coaches and athletic departments is not prominently displayed or spelled out to the student athlete. Uthoff said that he was shocked about the list of blocked schools. Other players have made similar comments in response to their denied requests to contact certain schools. In light of this, I wonder whether a court would enforce this condition if a player were to challenge it in court.

As far as policy goes, we can all agree there must be some restrictions in player movement. An unregulated system of transfers would likely hurt the college game, both in football and basketball. But the one year waiting period seems like enough. I will even submit to the rule that many conferences have discouraging intraconference transfers. Many schools, according to the aforementioned CBS report, only restrict transfers to conference opponents. Practically, this makes sense. Restricting transfers to 25 schools or more, however, makes no sense, and seems like coaches and athletic departments asserting their dominance over college kids without real bargaining power, simply because they think they can. And in that case, I wonder how enforceable these “contract rights” (as Bo Ryan apparently would like you to believe they are) would be if challenged on legal principles.

 

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