Dept of Education to NCAA Player: the ‘Student-Athlete Statement’ FERPA Waiver is Illegal

The ‘Student-Athlete-Statement’ which the NCAA and school require that the player sign is no statement. It is a bewildering mash-up of cleverly-disguised efforts to induce the player to sign away every possible economic opportunity which might come his way. And it is where all the action is: when faced with antitrust challenge, or when presenting the SAS to the player, the NCAA portrays it as a mere ‘eligibility’ statement. But when the NCAA and school seek to sanction the player for violation of one or more of the thousands of rules in its manual, they claim he has agreed to be bound by them because of his SAS affirmation that he has “read and understands” them. This preposterously global pledge — which should cause any person even vaguely familiar with the impenetrable wilderness of that manual to respond with this Churchill retort: “I should think it was hardly possible to state the opposite of the truth with more precision” – serves as the primary basis for any NCAA claim that the player is bound by contract.

The appalling list of the deceptions and contracting atrocities included in the SAS is much too long for this brief update, but last November, the U.S. Department of Education (USED) issued what has since been referred to as its Agora letter, which provides, as its letters have typically done, guidance for schools and students about how USED will interpret the 1974 Family Educational Records Protection Act [FERPA] mandate concerning parental and student consent for ‘term of services’ mandated by third-party providers to educational institutions.

Agora Cyber Charter School was one of the many third-party providers of digital/online services which many schools require for testing, evaluation, and tracking of students. And it has become commonplace for schools which contract with those third-party providers to have parents or students (once they achieve the age of majority, which is usually, in most states, eighteen) sign a waiver of FERPA protections, in order to allow such third-party providers access to all of the student’s educational records deemed ‘private’ by FERPA.

Except that now the Agora letter says that such waivers cannot be mandated by such third-party providers.

And the NCAA is a third-party. Is it a ‘provider,’ pursuant to this significant new Agora rule? This question, as it turns out, is not particularly relevant. What is relevant is this long-standing FERPA principle, reiterated in the Agora letter: 

A parent or eligible student cannot be required to waive the rights and protections accorded under FERPA as a condition of acceptance into an educational institution or receipt of educational training or services.”

This, then, is the line in the sand for the recruit, and the player at every school who is required to annually sign a new version of the SAS: do not sign the FERPA waiver. You not only have no obligation to sign the waiver: the school and NCAA violate FERPA’s terms if they require you to sign it.

JUST SAY NO.

Sure, the player’s refusal to sign the FERPA waiver would eliminate all NCAA involvement in academic matters, and would also possibly jeopardize: 1) much of any athletic department authority for its academic racketeering, which involves mammoth spending, on buildings, tutors, and slavish academic monitoring; and 2) the school and NCAA ‘particular brand’ of ‘pro-competitive’ football and basketball entertainment. And these developments might help to heal the pathological current state of things in big-time college sports.

As things now stand, the school procures from the player a mandated FERPA waiver of whopping value — at no cost. If the school really needs that waiver, then it should first sign its own waiver of any ‘no-pay’ provision, to allow the school to then pay the player for his FERPA waiver, at fair-market-value.

Player: do not sign the FERPA waiver in the Student-Athlete Statement which is handed to you when you arrive on campus.

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About brewonsouthu

Michigan and Big Ten fan, former lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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2 Responses to Dept of Education to NCAA Player: the ‘Student-Athlete Statement’ FERPA Waiver is Illegal

  1. SOUTHALL, RICHARD says:

    Thanks for the post. When I first began looking at the S-A Statements going back to their inception, I made the same point you are and initially this was a major element of the O’Bannon case. It’s fascinating the double-speak in the statements as well as in the National Letter of Intent that is not in the athletes’ best interests. These situations are the reason the players need to have an independent players association.
    Thanks for blogging!!
    Richard
    Dr. Richard M. Southall
    Professor
    Director – College Sport Research Institute
    http://csri-sc.org/
    Department of Sport and Entertainment Management
    University of South Carolina
    Carolina Coliseum, Room 2024
    Columbia, SC 29208
    Office: 803.777-5550
    Cell: 901.240-7197
    Email: southall@hrsm.sc.edu
    Spring 2018 Office Hours:
    M: 12:00-1:00pm
    T/R: 1:00-2:30pm, 4:15-5:30pm
    NOTE: If I am unavailable during my office hours because of university business (e.g., Guest lecture or committee meeting), other times are available by appointment.
    From: BOSU
    Reply-To: BOSU
    Date: Thursday, May 17, 2018 at 8:51 PM
    To: “SOUTHALL, RICHARD”
    Subject: [New post] Dept of Education to NCAA Player: the ‘Student-Athlete Statement’ FERPA Waiver is Illegal
    brewonsouthu posted: “The ‘Student-Athlete-Statement’ which the NCAA and school require that the player sign is no statement. It is a bewildering mash-up of cleverly-disguised efforts to induce the player to sign away every possible economic opportunity which might come his wa”

    • brewonsouthu says:

      Richard. Mea culpa. I just saw this comment by you. For some reason it does not show up on my blog on my computer and I just happened to look at the blog on my cell phone and found your response. Anyway thanks for your response and input. Keep giving em hell! Bill Wilson

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