Alongside NIL, the one-time transfer rule has changed the landscape of college athletics. Prior to the launch of the “Transfer Portal,” NCAA football, men’s and women’s basketball, baseball, and men’s hockey players were required to sit out for a full season of play if they decided to transfer. Before the enactment of this rule, many players still changed schools in search of more playing time, enhanced competition levels, better academic opportunities, etc., but the quantity of transfers in today’s environment is not even comparable to the pre-2021 figures.
Once the NCAA opened pandora’s box of allowing one transfer while retaining eligibility, it was only a matter of time before athletes, agents, and lawyers alike started to begin pushing for multiple transfers. In the time since the passing of the one-time transfer rule, the legal environment has swung even more towards college athlete empowerment. The 9-0 decision in the Alston case, looming employment lawsuits like the House case, and even Charlie Baker’s new proposal that would create a “new D1” have certainly changed the narrative in rapid fashion. To avoid sitting out after transferring for a second or even third time, many athletes have attempted to obtain a waiver from the NCAA, indicating a “good” reason for their additional transfer. These waivers have routinely been denied by the NCAA, which has caused quite a stir in many cases.
However, the NCAA’s insistence on preventing athletes from maintaining eligibility after multiple transfers has recently taken a hit. After an antitrust lawsuit was filed by seven different states on the matter, U.S. District Court Judge John P. Bailey granted a 14-day temporary restraining order prohibiting the NCAA from enforcing its transfer waiver rules. The states involved in seeking the restraining order were Colorado, Illinois, New York, North Carolina, Ohio, Tennessee, and West Virginia.
Ohio Attorney General Dave Yost stated “At the hearing, we found out that 99 players had been denied a waiver, and 44 are currently in process waiting. It’s reasonable to believe that 100 athletes or more could be impacted by today’s restraining order against the NCAA double transfer rule.”
The lawsuit alleged requiring athletes to sit out means lost potential earnings form NIL or professional career opportunities. It pointed to exposure from competing in national broadcasts, claiming: “One game can take a college athlete from a local fan favorite to a household name.”
Despite the ruling, college administrators are still holding fast in their belief that athletes shouldn’t maintain immediate eligibility following a second transfer.
Georgia President and Board of Directors Chair Jere Morehead believes a policy to allow unlimited transfers is “inconsistent” with the NCAA’s mission of graduating student-athletes. Moreover, in unpacking the NCAA’s argument Sportico’s Michael McCann notes the NCAA has “sharply rebuked the AGs’ legal arguments as endangering college athletes’ academic interests, disturbing college athletics’ competitive balance and embodying government overreach into a private association.” The NCAA also argues the attorneys general are seeking to “rewrite the rule of a private association” to effect “virtually unlimited” transferring in college sports and offer “virtually no facts or legal authority to support their proposed change.” In its argument, the NCAA contends the AGs are misreading the U.S. Supreme Court’s ruling in the Alston case in saying “The ruling concerned a narrow and unrelated issue: NCAA limitations on education- related benefits (not athletics, transfers or NIL).”
The TRO also prohibited the NCAA from enforcing its rule of restitution, which allows punishment for playing athletes who are later deemed ineligible.
As for how many schools will play student-athletes while the rules are suspended, Kennyhertz Perry attorney Mit Winter remarks: “I think it’s unlikely the NCAA tries to enforce its transfer rules against any athletes now. It will instantly get sued. And I think the judge is also likely to grant a preliminary injunction after the end of the TRO’s 14-day period.” Winter also points out that to grant a TRO, a court “has to find there’s a likelihood of success on the merits of the underlying claims. This means the judge believes the state AGs will likely prevail on their claim that the NCAA’s transfer waiver rules violate fed antitrust law.”
After Judge Bailey’s decision, according to Yahoo’s Ross Dellenger, the NCAA originally claimed that as a result of the decision, it “will not enforce the year in residency requirement for multiple-time transfers and will begin notifying member schools.” However, Dellenger reports the NCAA has since provided clarity, and a student-athlete who competes in a game over the next 14 days will, in fact, lose a season of eligibility if the court’s ruling is reversed.
Where things go from here will definitely be worth monitoring. A full hearing is set for December 27, where more clarity on the matter would certainly be welcomed by athletes seeking a waiver, coaches, and compliance personnel across the country. Regardless, this is just another example of the legal environment threatening the NCAA’s governance power over college athletics.