The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
Ohio Attorney General Dave Yost is leading a lawsuit against the NCAA alleging its transfer policies amount to collusion. The seven-state lawsuit contends the NCAA’s arbitrary use of waivers creates a de facto “no-poach” scheme among competing schools without providing any benefit to college athletes.
“It is ironic,” the complaint reads, “that this rule, stylized as promoting the welfare of college athletes, strips them of the agency and opportunity to optimize their own welfare as they see fit.”
The state of transfers
In 2021, the NCAA began allowing Division I athletes playing baseball, basketball, football and ice hockey to transfer schools and start playing immediately. Previously, transfer athletes in those sports would have to sit out for a year after transferring. The NCAA’s so-called “one-time transfer rule” had been in place already for other Division I sports, and all sports in Divisions II and III.
The problem is college athletics is big business, and the decisions administrators make to maximize their programs’ success don’t always redound to the benefit of athletes. A new coach may bring along a new system or players they recruited at their previous institution. Each year the transfer portal sees players looking for a new program because their coach got fired or the school hired somewhere else.
The splashiest college football hire last offseason was the University of Colorado hiring Deion Sanders. At an introductory press conference, he pointedly encouraged players to leave. “We got a few positions already taken care of because I’m bringing my own luggage with me,” he said. When it was all said and done, Sanders brought in 86 transfer players.
Texas A&M was frustrated enough with head football coach Jimbo Fisher that the school fired him midseason — spending more than $75 million to buy out his contract. Ten of its players have already entered the transfer portal.
Former St. John’s basketball coach Mike Anderson is suing the school for upwards of $45 million. Anderson claims the school wrongfully terminated him, aiming to avoid his contract buyout so it would have money to lure current coach Rick Pitino. The team got an overhaul heading into the season, including 10 transfers.
Those three coaching changes alone prompted more than 100 athlete transfers. But it’s just a glimpse of the total. According to the NCAA, 20,911 Division I athletes entered the transfer portal in 2022.
Waivers
In addition to the first-time transfer waiver, athletes pursuing grad school can make a second transfer without sitting out a year. But for undergrads headed for a third school, the NCAA considers waivers case-by-case. Yost contends their track record is “arbitrary and atrocious.”
The complaint describes the experiences of a handful of college athletes, caught up in circumstances beyond their control.
RaeQuan Battle came to West Virginia University to play basketball. He started out at the University of Washington but transferred to Montana State. His coach there left the program, so he caught on with WVU. He and the team expected the NCAA to grant a waiver, but it was denied.
“Losing his coach at MSU, which prompted his decision to transfer to WVU, is a situation that he had no control over and severely affected his mental health,” the complaint states.
Jarrett Hensley got recruited to play basketball at the University of North Carolina Greensboro, but the coach who recruited him left to coach at the University of Cincinnati. Hensley is a Kansas native with no real connection to North Carolina, so he decided to follow his coach. The transition didn’t work out.
“As the coaches and staff started putting more emphasis on outcomes instead of focusing on his collegiate athlete experience, UC staff encouraged Mr. Hensley to enter the transfer portal,” the complaint notes.
He transferred to Southern Illinois University to be a bit closer to family and be part of a program where he was more comfortable. The complaint states UC officials assured him he’d be able to play immediately. Still, the NCAA denied his waiver.
Noah Fenske is on Southern Illinois University’s football team — he’s part of the exodus of players who left the University of Colorado as Sanders took over the program. Fenske started his collegiate career at the University of Iowa but transferred due to mental health concerns.
“The new coach at Colorado made it clear that current players were not going to be welcomed back after spring practices,” the complaint explains. “And as such, Mr. Fenske had no choice but to look to transfer again in order to keep his scholarship.”
Pretext and restitution
Yost’s complaint takes a swipe at the NCAA’s justifications for transfer restrictions as well. The organization defends its limitations as a way to ensure athletes continue progress toward a degree and maintain athletic amateurism. The Attorneys General dismiss those arguments as little more than a pretext for their policy.
The complaint derides the suggestion that a one-year delay in competition would assist in an athlete’s transition between schools. The AGs note athletes already face academic requirements to play and new transfers still have to practice. They get no additional time for academics, the complaint scoffs, “except for a few hours on gameday when affected college athletes are forced to watch from the sidelines.”
“Moreover,” the complaint continues, “the NCAA does not limit the eligibility of freshman college athletes, whose transition from high school to college is far more arduous.”
The complaint then turns to the NCAA’s own definition of “amateurism,” and insists existing transfer policies simply have nothing to do with the those limitations on accepting compensation.
“The absence of the Transfer Eligibility Rule would do nothing to affect the amateur status of transferring college athletes,” the complaint states.
Yost took particular offence at the NCAA’s “rule of restitution.” The bylaw holds that in the event a school or player gets a court order allowing a player to participate, if that order is later rescinded the NCAA can impose significant penalties. In addition to stripping the school and players of awards, it can claw back television revenue and impose further financial penalties.
The complaint contends the rule is ripe for abuse. Say an athlete gets a court order allowing them to complete their final season. After that season is over, they might not want to continue the case, or the court might decide it’s moot.
“In both instances, the NCAA could impose harsh penalties in retaliation against the college athlete and the athlete’s school even though the only court to consider the issue had ruled in the college athlete’s favor,” the complaint notes.
Outlook
Yost filed the lawsuit along with Attorneys General from Colorado, Illinois, New York, North Carolina, Tennessee and West Virginia. The complaint was filed in the Northern District of West Virginia federal court.
In a press conference, Yost said expressed hope that the court will respond quickly.
“We’re asking for emergency relief here,” he said. “Every day that goes by is continuing harm, and I hope to get a ruling, a preliminary ruling, in a matter of days, not weeks.”
