Call It What It Is: NCAA Anti-Transfer Rule is a Player’s Personal Death Penalty

 The Player’s Ever-Looming Death Penalty

Families, players, fans, and the NCAA all celebrate the recruit’s signing of the NLI, but few recognize that the NLI ‘sit-out’ penalty for transfer will immediately and daily loom over that player as a personalized potential Death Penalty — almost identical to, and just as savage as, the Death Penalty the NCAA can use to shut-down a sport at a member school.

But the stark differences between the two Death Penalties show that the Player’s Penalty is more burdensome. The School Death Penalty is once-in-a-generation’ (not imposed for, now, more than three decades); the Player’s is imposed upon hundreds, if not thousands of ‘student-athletes’ – every year. (According to NCAA data, for example, 40% of D-1 basketball players leave their original school by their sophomore year.) And the last School Death Penalty, imposed upon SMU in 1987, was based upon repeated, knowing, intentional, and egregious bad conduct (including large under-the-table payments to players); in contrast, the Player’s Death Penalty is imposed for doing what hundreds of thousands of U.S. students do every year: transfer to another school. (Only in the wacky NCAA world could anyone argue that transfer is really bad.) And, because football and basketball careers are precarious and short, the player’s mandated two-year sit-out (one year out of competition, combined with a loss of one year of eligibility) inflicts upon him a whopping, long-term economic disadvantage: as one year of a dog’s life is seven years of a human life, so also might one year of a player’s athletic career be the equivalent of seven years of a more conventional one. The body wears out, and professional opportunities beyond college are relatively rare. (Contrast these athletes with professional golfers, which often have careers spanning forty years.) Using this rough equivalency, a one-year player ‘sit-out’ penalty lasts a walloping seven career-years.

That Ain’t No Letter of Intent

Before explaining the other factors which make this Player’s Death Penalty so outrageously onerous, though, a quick word about the NCAA’s bad faith in designing the Penalty. First, the document which creates it – the National Letter of Intent – fundamentally deceives the player as to its essential function and title. It is not a letter of intent. It is a Non-Compete Agreement, so very valuable to the NCAA and its members, because it works as an immediate Player ‘Lock-Down,’ so that he cannot go elsewhere to immediately compete. And the NCAA’s euphemistic name for the player’s pay — the ‘Athletic Scholarship’ — aims to fundamentally trick him into believing the pure fiction that it is not pay. It is Athletic Scrip-Pay; effectively, a coupon, which he presents at the school’s ‘company-store,’ to purchase academic service.

The power of this player Death Penalty is multiplied because: 1) unlike most Non-Compete Clauses, it takes effect many months before the player even shows up for ‘work,’ or receives any pay; and 2) the unique constraints of the player’s Athletic Scrip-Pay create for him a variant of the old sharecropper’s dilemma: he can leave by transferring but, if he does, his income will immediately cease, after which he will have few assets or savings accumulated from his labors with which, while seeking other arrangements, he can support himself and his family. The sharecropper’s dilemma was, in fact, less onerous because, pockets and accounts empty, he could at least venture down the road to immediately make a new arrangement with another landowner; in contrast, during the player’s sit-out, his school-issued scrip is useless for purchases elsewhere, he has no income, and he must pay out-of-pocket for substantial costs at his new school.

The Threat-of-Player-Death-Penalty is the Coach’s Main Billy Club

And this threat of player Death-Penalty-for-transfer operates as the school’s Big Billy Club, which daily looms over college basketball and football players, and is used by coaches, day-by-day, to impose upon the player the thousands of NCAA and athletic department rules and regulations, and every coach whim. (That coach power is enlarged by the coach’s unfettered discretion to ‘non-renew’ what are still, usually, one-year, ‘renewable’ player athletic scholarships.)

It is as if, when the player signs the NLI, a Billy Club icon is inserted at the margin of each paragraph of the NCAA Manual, the NLI and Student Athlete Statement, the Student-Athlete Code of Conduct, and any other athletic department rules, to reflect the reality that the threat-of-Death-Penalty Billy Club will be wielded by coaches and other management, each well aware that the player’s only option, if faced with an objectionable order, instruction, or decision as to playing time, position assignment — or even unsafe practice or directive – will be to transfer, and immediately submit to the NLI’s two-year Death Penalty. “Leave if you don’t like my decision or order,” any coach can be heard to say to the player, “ and we both know you’ll be up a creek, without a paddle.”

(The arbitrariness and power of this Player’s Death Penalty is further illustrated by imagining if school and player roles were reversed, by having no NLI in operation, so that the school would be forced to petition to prove that a particularly valuable player should not be allowed to transfer. Good luck with that one.)

By Itself, the Player Death Penalty Should Establish Employment Status

The NLI’s Lock-Down, and the enforcement Billy-Club which its transfer-bar creates, so significantly suppresses the value of the player’s labor, that it serves as a linchpin of the entire NCAA cartel. And, by itself, the Lock-Down represents such a walloping forfeiture of the player’s right to freely engage in commerce or education as an adult Economic Man, as to form the basis for a finding of player employment status. And because its constraints fall so disproportionately upon: 1) African-Americans; and 2) students below the age of 22, the NLI’s sit-out Death Penalty should serve as a solid foundation for both age and race discrimination actions.

The threat-of-Death-Penalty Billy Club is the coach’s primary tool in his tool box — which explains why the NCAA has just issued more stringent anti-transfer controls, and why the NCAA will never eliminate the tool — without being forced to.

Copyright 2019 Wm Wilson

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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