"Notional" Letter of Intent: College Football Offers More Than It Can Deliver, Part 1
By: Justin N. Fielkow
Read Part 2 here.
This week, young men across the country signed their National Letters of Intent, a momentous occasion and tremendous achievement in their lives. Unfortunately, for some, both the process and the conclusion will not be what they envisioned. This is the first of a three-part series that will analyze the National Letter of Intent system and the concept of oversigning in major college football. This post will provide a general introduction to the history and rules governing the National Letter of Intent and the doctrine of oversigning in college football. Part Two will then analyze the legality and potential remedies of oversigning, including a promissory estoppel cause of action and breach of contract claim. Finally, Part Three will put the ethics and morality of the practice of oversigning, as it relates to the current world of big-money college football, on figurative trial.
Introduction to Oversigning: How It Works and How It Fails
With nothing more than a wish and a prayer that a university will honor its scholarship offer to a prospective student-athlete, countless young men, such as Elliot Porter, have their verbal commitments vanish into thin air due to the unsavory practice of oversigning.1 Elliot Porter received a scholarship offer to play football at Louisiana State University in the summer of 2009. In July, Porter was one of the first verbal commitments to LSU's 2010 recruiting class.2 In February 2010, Porter signed a National Letter of Intent (NLI) with LSU, qualified academically, enrolled early, reported to summer school in June 2010, and started taking classes.3 Yet, after misjudging how many of his academically shaky signees would qualify and reaching the maximum 25-new-player scholarship limit, head coach Les Miles informed Porter that there was no room for him on scholarship at LSU.4 Porter was granted a release from his Letter of Intent and instead accepted a scholarship at the University of Kentucky.5 Porter disliked Kentucky and returned to LSU, where he is now a walk-on paying his own way for two years before he can finally get the football scholarship LSU promised him as a high school senior.6
Porter's situation is not unique. Often, the unlikely-to-contribute players at the bottom of an incoming class are asked to "grayshirt," dutifully delaying their enrollment (or paying their way for a semester), until there is room for them in the next class, regardless of what a coach promised them during their recruitment or the fact that they signed an NLI. Additionally, every year "thousands" of high school seniors find themselves scrambling for scholarships after coaches simply rescind non-binding scholarship offers because they found more talented players and are forced to comply with the NCAA's signing limits.7
Oversigning is defined as "the act of accepting more signed letters of intent on National Signing Day than you [an institution] have room for under the 85 scholarship limit."8 Football Bowl Subdivision (FBS) schools are limited by three relevant rules. First, schools may only roster 85 full scholarship student-athletes.9 Second, under newly enacted NCAA bylaw 18.104.22.168, schools are limited to annually signing 28 prospective student-athletes to a National Letter of Intent from February 1 through May 31.10 Lastly, regardless of the above two rules, a school may still only roster 25 new scholarship student-athletes.11 Despite these NCAA rules in place, schools still find ways maximize their haul and sign more student-athletes than they have space for on their roster, either through signing players during early enrollment periods to avoid the 28-signee limit, engaging in the practice of grayshirting, or simply releasing players from their scholarships at the end of the financial award period.12 Fully understanding the dynamics of this hot-button issue first requires a closer look into the history, procedure, and rules governing the college football recruiting process.
History and Development of the National Letter of Intent
The National Letter of Intent program was spawned by concerns for both the participating institutions and the student-athletes they recruited.13 In the early stages of intercollegiate athletics, recruiting efforts were limited geographically as advances in transportation, communications, and technology had not yet shrunk the country to the point where transcontinental recruiting would become a way of life. After World War II, enrollment in institutions ballooned, injecting new life into languishing athletic programs. Increased enrollment, coupled with the rise of television, provided incentives for school administrators to view college football as a potential profit source, as opposed to a financial liability.14 Thus, aggressive recruiting was seen as the logical first step to maintaining an elite revenue-generating football program.
Competitive recruiting for the limited number of elite athletes available spawned a host of problems for universities, prospective student-athletes, and parents. Coaches began their recruiting crusade for their next meal ticket while the current athletic campaign was still in progress. High school students, meanwhile, were besieged with persuasive "salesmen" pimping their university. Pressure on student-athletes, parents, high school coaches, friends, and teammates was overwhelming. On the flip side, the economic pressure on smaller institutions to keep up and the public pressure on larger institutions to maintain their competitive advantage intensified to prohibitive proportions.15 The need for a solution was indisputable. Thus, the Collegiate Commissioners Association (CCA) adopted the NLI system in 1964.16
According to the NCAA, the NLI was designed to "reduce and limit recruiting pressure on student-athletes; and [t]o promote and preserve the amateur nature of collegiate athletics."17 Since 1964, the system has undergone extensive changes, but the goal remains the same. Currently, 57 conferences and over 500 institutions offer athletic scholarships to prospective student-athletes using the NLI.18 The NLI is a four-page contract that provides an athletic financial aid award to a recruit for one academic year, provided he or she is admitted to the institution and qualifies for aid under NCAA guidelines.19 In exchange, the student-athlete will commit to attend the institution and participate in collegiate athletics.20 With the exception of field hockey, soccer, and men's water polo, there are two signing periods for every sport. NLIs may be signed only during these periods; otherwise, they are not valid. Once the prospective student-athlete signs the NLI, he or she is bound to that institution, the recruiting process ceases, and all other institutions are barred from contacting or recruiting the prospect.
Thus, the scholarship commitment on the university's part is normally characterized as a yearly obligation renewable on an annual basis up to four years, or five years in certain circumstances.21 Therefore, the NLI and financial aid award meet the basic criteria of a contract through offer, acceptance, and consideration.22
Courts have generally accepted that student-athletes and universities have a contractual relationship.23 In Jackson v. Drake University, the United States District Court for the Southern District of Iowa held that "[t]he financial aid agreements entered into by [the recruit] constitute valid contracts."24 The NLI and its restrictions are only rendered nugatory if the student-athlete does not meet the admission requirements, financial aid eligibility requirements, or NCAA prerequisites to admission or scholarship assistance.25 The agreement may also be nullified under a few other specific instances outlined by the NCAA.26 Overall, the student-athlete is obligated to attend the institution for one year, but the NLI does not deal with his or her actual participation in athletics, nor does it contain any additional terms regarding the promises made by a coach or university during the recruiting process.27
Oversigning and College Football
It is at this point where things begin to get sticky in major college athletics, particularly with regards to college football. The practice of obtaining verbal commitments from recruits prior to National Signing Day evolved in response to the creation of the NLI. When a coach takes notice of a prospect, he will begin the recruiting process with a series of letters, phone calls, and both official and unofficial visit, all of which are regulated by the NCAA's recruiting rules.28 As the recruitment becomes more serious, coaches will then likely extend to the recruit either a verbal or written scholarship offer. This offer is typically informal and does not include the terms of the NLI.29 Prospective student-athletes may then choose to provide the coach with a "verbal commitment" where a student-athlete informs the institution that he intends to accept the institution's scholarship offer. College-bound student-athletes can announce a verbal commitment at anytime. However, "this 'commitment' is NOT binding on either the college-bound student-athlete or the institution. Only the signing of the NLI accompanied by a financial aid agreement is binding on both parties."30 Further, there are no restrictions on the number of verbal scholarship offers and commitments that an institution can extend and accept.31
Once a prospective student-athlete receives an offer, it is relatively uncommon for a coach to revoke the offer due to the negative publicity that would result:
For a school to "drop" a player at the last minute after accepting a verbal commitment, it is almost sure political suicide. The player and his parents are usually upset and certainly his high school coach is upset. Many times the high school coach will verbally ban a school from coming back to recruit future prospects.32
In theory, however, a coach may revoke a verbal or written offer to a prospect any time before he signs an NLI without breaking NCAA rules.33 Commitments are not finalized and binding upon both parties until the prospective student-athlete signs the National Letter of Intent and accompanying financial aid agreement and returns both to the institution during the designated signing period.34 This is where the real problems begin, as institutions are unregulated with regards to the form of their scholarship offers and number of verbal commitments they can accept.
Coaches and schools justify the practice of oversigning as a necessary business to ensure their programs remain highly competitive in an evolving athletic landscape.35 Further, because of regulatory loopholes such one-year renewal financial scholarships, the NCAA allowed the practice to continue essentially unabated. Yet recently, oversigning has received heavy amounts of negative publicity, prompting calls for reform. As a result, athletic conferences such as the Southeastern Athletic Conference have finally begun to take steps to curtail the practice.36 Additionally, the NCAA recently passed legislation providing schools the opportunity to offer multi-year scholarship offers to incoming student-athletes. While these actions constitute a move in the right direction, more still needs to be done to completely abolish this abhorrent practice that allows those in charge to manipulate the lives of young men who are in an unequal bargaining position and dependent on coaches and administrators to be forthright and ethical in their dealings.
In the next posting, I will analyze the legality and potential legal remedies student-athletes have against the practice of oversigning, as well as their likelihood of success. Finally, in Part Three, I will further scrutinize the morality and ethics of the practice and offer my suggestions to fix what many perceive to be a broken system.
1 Gregg Doyle, "Bad guys utilize over-signing, and it has to stop," CBSSports.com, Aug. 8, 2010.
5 Andy Staples, "Going to court over commitment," Sports Illustrated, Feb. 29, 2008.
8 "Definitions," Oversigning.com (last visited Feb. 2, 2012).
9 2011-2012 NCAA Division I Manual, Art. 22.214.171.124 (last visited Feb. 2, 2012) [hereinafter NCAA Bylaws].
10 NCAA Bylaws, Art. 126.96.36.199.
11 NCAA Bylaws, Art. 188.8.131.52.
12 Andy Staples, "Oversigning offenders wont be curbed by NCAA's toothless rule," Sports Illustrated, Jan. 24, 2011, http://sportsillustrated.cnn.com/2011/writers/andy_staples/01/24/oversigning/index.html.
13 Michael J. Cozzillio, The Athletic Scholarship and the College National Letter of Intent: A Contract By Any Other Name, 35 Wayne L. Rev. 1275, 1287 (1989).
14 Id. at 1288.
15 Id. at 1289.
16 Stacey Meyer, Unequal Bargaining Power: Making the National Letter of Intent More Equitable, Comment, 15 Marq. Sports L. Rev. 227, 227 (2004) (citing the Collegiate Commissioners Association).
17 Id. at 228.
18 Collegiate Commissioners Association, "NLI Member Institutions," national-letter.org, available at http://web1.ncaa.org/onlineDir/exec/nliListing (last visited Feb. 2, 2012).
19 National Collegiate Athletic Association, "About the National Letter of Intent (NLI), http://www.ncaa.org/wps/wcm/connect/nli/NLI/About+the+NLI/ (last visited Feb. 2, 2012).
20 Meyer, supra note 16, at 229-230.
21 There has, however, been a recent push to provide universities the option of offering multi-year scholarships, as opposed to renewable, one-year awards. See Andy Staples, "Schools, not NCAA, standing in he way of positive scholarship change," Sports Illustrated, Dec. 20 2011, http://sportsillustrated.cnn.com/vault/article/web/COM1193216/2/index.htm.
22 Meyer, supra note 16, at 230.
23 See Jackson v. Drake Univ., 778 F. Supp. 1490, 1493 (S.D. Iowa 1992); Ross v. Creighton Univ., 957 F.2d 410, 415-417 (7th Cir. 1992); Hysaw v. Washburn Univ., 690 F. Supp. 940, 946-47 (D. Kan. 1988); Taylor v. Wake Forest Univ., 191 S.E.2d 379, 382 (1972).
24 Jackson, 778 F. Supp. at 1493.
25 Cozzillio, supra note 13, at 1291 (citing Letter of Intent, infra Appendix A, at para.1(a)).
26 Id. at 1291-92.
27 Taylor, 191 S.E.2d at 382.
28 National Collegiate Athletic Association, 2009-10 Guide for the College-Bound Student Athlete, at 18 (last visited Feb. 2, 2012) [hereinafter NCAA 2009-2010 Guide].
31 Andy Staples, "Brown Saga Reveals Recruiting Flaws; Here's How To Fix The," Sports Illustrated, Mar. 16, 2009, http://sportsillustrated.cnn.com/2009/writers/andy_staples/03/16/brown-tennessee/index.html ("Some [coaches] offer more than 200 players for a 25-man class").
32 Andy Rogers Inside the Verbal Commitment Circle," Rivals.com, http://studentsports.rivals.com/content.asp?CID=504616 (last visited Feb. 2, 2012).
33 NCAA 2009-2010 Guide, supra note 32, at 18.
35 Hannah Karp and Darren Everson, "SEC Coaches Defend 'Oversigning," The Wall Street Journal, Mar. 1, 2011, http://online.wsj.com/article/SB10001424052748704444604576172954187357370.htl.
36Jon Solomon, "SEC teams adjust to 'Houston Nutt' Rule," The Birmingham News, Feb. 3, 2010, http://blog.al.com/solomon/2010/02/sec_teams_adjust_to_houston_nu.html.