"Notional" Letter of Intent: College Football Offers More Than It Can Deliver, Part 2
By: Justin Fielkow
Read Part 1 here. | Read Part 3 here.
This is the second of a three-part series that will analyze the National Letter of Intent system and the concept of oversigning in major college football. In Part One, I provided a general introduction to the history and rules governing the National Letter of Intent and the doctrine of oversigning in college football. This post will further analyze the legal implications of and potential remedies for 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 of college football, on figurative trial.
Enforcing Verbal Commitments Prior to Signing an NLI
As discussed in Part One, oversigning is defined as "the act of accepting more letters of intent on National Signing Day than you [an institution] have room for under the 85 scholarship limit." As a result, 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 recruitment, or the fact that they signed an NLI. Additionally, every year thousands of high school seniors find themselves scrambling for scholarships after coaches rescind non-binding scholarship offers because they found more talented players and are forced to comply with the NCAA's signing limits.
The remedy some jilted student-athletes choose to pursue is a legal claim for the oral promises on which the institution reneged.1 While verbal commitments are explicitly non-binding agreements between the parties (limiting the legal claims that can be raised), there are some potential remedies available for those student-athletes who are injured by an institution's oversigning practices or other unfulfilled promises. One option is the doctrine of promissory estoppel.
Promissory estoppel is defined as "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."2 In other words, the doctrine is invoked when Party X relies on a promise from Party Y to the detriment of Party X. A written agreement is often not necessary to prove promissory estoppel.3 Typically, the difficulty in a promissory estoppel claim is proving the existence of a promise. Student-athletes, however, have very few problems proving that they were promised a football scholarship by an institution. As such, a number of jilted recruits have solid footing in a lawsuit, and would likely have the remaining issues resolved by a jury. Such as, (1) whether the university reasonably foresaw the prospective student-athlete relying on the scholarship promise, and (2) whether enforcement of the promise will remedy the injustice.4
Daniel Smith was recruited by the University of Hawaii in 2007 and received a scholarship offer to play football soon after.5 However, ten months later Smith was informed that his scholarship offer had been revoked after Hawaii's head coach June Jones left the program.6 With less than a month before National Signing Day, Smith was left without a scholarship offer to any other program and was unable to find another school willing to offer him a scholarship. Smith brought suit under the doctrine of promissory estoppel. Unfortunately for those hoping for favorable precedent, Smith and the University of Hawaii settled their differences before the case reached a jury (albeit under extremely favorable terms for Smith).7 As it stands, the application of promissory estoppel remains a promising yet uncertain option for student-athletes who are casualties of oversigning.
Breach of Contract
A more difficult claim available to student-athletes is breach of contract. In order for an athlete to successfully recover for breach of contract, the athlete "must point to an identifiable contractual promise that the defendant failed to honor."8 To do so, an athlete must prove, first, that there was an oral contract, and second, that the contract was breached.9 Unlike in the case of written contracts, it is much more difficult to prove oral promises made during the recruiting process. Most importantly, both parties must come to a "meeting of the minds," where each shares intent to be bound by the agreement.10 While each party likely intends to completely be bound by the contractual terms of the NLI, it is difficult to conclude that each party intends the verbal commitment to be binding.11 It has been shown that coaches and institutions often do not intend for oral commitments to be binding agreements as they continue to search for the crown jewel of a recruiting class. Further, prospective student-athletes commonly "decommit" from universities after providing a verbal assurance of their intent to sign the NLI.12 Unlike promissory estoppel where the touchstone is reliance upon a promise, a breach of oral contract claim requires proof of a bona fide contract, a difficult hurdle to overcome given the notional nature of the recruitment and NLI process.
Yet, in Malone v. Academy of Court Reporting, the Ohio Court of Appeals noted that specific solicitations from an academic institution to a potential student, whether written or oral, can serve as the basis for a valid breach of contract claim.13 In Malone, officials of the Academy of Court Reporting, a private school marketing and operating a paralegal curriculum in Ohio, made several promises to the potential students through continuous telephone calls, mailings, advertising presentations, and personal interviews. Former students of the Academy brought suit for the breach of such assurances and promises made to them when they were solicited to enroll. The court held that based on evidence of the alleged promises and given the breach of such assurances, the students stated valid claims of breach of contract.14 Unlike most instances of oversigning, however, the students in Malone actually enrolled at the Academy, concrete proof that both parties intended to be contractually bound. Student-athletes generally will not enroll before being denied the scholarship that was promised. Still, while it is possible that the Malone decision was one based on isolated circumstances, it certainly provides interesting precedent under a breach of contract claim for solicited or recruited student-athletes who accepted verbal scholarship offers, only to have those scholarships revoked.
The National Letter of Intent as a Contractual Relationship
While it has been shown how prospective student-athletes who have yet to sign an NLI may seek legal relief, a different set of analysis is required to address those student-athletes who have already signed their NLI, and in most cases, have already attended the institution for a full year. Unfortunately, NCAA regulations do little to protect student-athletes at that point, leaving them with little legal recourse.
NCAA regulations provide that the standard scholarship commitment is renewable on a yearly basis, and most scholarship commitment letters indicate that the duration of the financial aid package is one year.15 In exchange for this annual scholarship, a student-athlete pledges to attend the institution, follow all school and team guidelines, and play.16 Thus, a bilateral contract between the institution and athlete is formed. Even though the NLI is a written one-year agreement, the athlete need not sign a new NLI each year while in attendance at the chosen institution.17 At the end of the academic year covered by the agreement, the coach and athletic director will advise the financial aid department whether to renew the athletic aid. Renewal is discretionary on the part of the athletic department, as neither the institution nor the athlete carries any obligations under the NLI after completion of the first academic year.18
In the most extreme example of oversigning, a university informs a student-athlete that it cannot honor his NLI because of its own oversigning while he is currently attending the university.19 Yet under NCAA Bylaw 126.96.36.199, during the period of the NLI, a scholarship may only be cancelled if the student-athlete renders himself ineligible for competition, misrepresents himself on any signed document, engages in serious misconduct, or voluntarily quits the team.20 In the case of Elliott Porter, his financial scholarship was not awarded even though the he lived up to his end of the bargain by enrolling, attending classes, following school and team guidelines, and being prepared to perform athletically for the institution.21 Furthermore he engaged in none of the restricted activities. Thus, he would have a clear breach of contract claim for LSU's cancellation of his scholarship, which is still protected under the first year of the NLI.22
The more common result of oversigning, however, occurs after the expiration of the NLI where an institution accepts more Letters of Intent than it has room for under the 85 scholarship limit. Schools do this with the expectation that some players currently under scholarship will fail to meet their contractual obligations under the NLI by failing to qualify academically, failing to meet team guidelines and standards, or engaging in serious misconduct; thus granting the school the right to release the student-athlete from his scholarship.23 In other cases, since the standard scholarship is renewable on a yearly basis, some coaches simply "cut" players, for athletic reasons, and choose not to renew the player's scholarship.24 Coaches are therefore able to reduce the amount of scholarship players on the team in order to make room for the new student-athletes signed to NLIs. The result is the attrition of players who have already served a year as a member of the university's football team to make way for new recruits. However due to NCAA rules, this practice has a fairly solid legal foundation to rest upon, despite its moral grayness.
In Hysaw v. Washburn University, athletes attending the university brought action for breach of contract, claiming their right to play football was denied by the coaching staff and that this right was protected by their respective scholarship contracts.25 However, the court disagreed and found no such promise in the contract, stating: "when a written contract exists and its language is clear and unambiguous, the language controls . . . the written scholarship contracts they signed make no indication of such promises. In fact, the only promises in those written contracts were that the players would receive money."26 Thus, the court recognized only the express obligations set forth in the contract documents and was reluctant to read any implied obligations into the contract.26 In Jackson v. Drake University, basketball player Terrell Jackson brought suit against Drake University for breach of contract, alleging the financial aid agreements granted him the right to an educational opportunity and the right to play basketball for a Division I school.28 The federal district court disagreed, ruling that the financial aid documents were clear and unambiguous, and therefore limited to their express terms.29
This notion that the NLI is clear and unambiguous and not bound by any implied terms is further supported by the parol evidence rule. The parol evidence rule serves to discharge all prior written and oral agreements that are inconsistent with the final agreement.30 The NLI is a standardized agreement and is considered to be final because it contains all the necessary terms of the contract. In plain language, the NLI states that "[n]o additions or deletions may be made."31 In the case of the NLI and financial aid award, any promises made during the recruiting process are void unless they are part of the final, written agreement. As such, the parol evidence rule dictates that a court would have difficulty ruling that any implied obligations, specifically regarding duration, of the scholarship offer may be read into the NLI.32 With the NLI still expressly established as an annually renewable option contract, institutions are free to "revoke" the scholarships of student-athletes, for whatever reason, at the end of the life of the NLI without breaching the explicit terms of the contract.
Although the law seems to favor the NLI as a one year contract, unilaterally renewable at the discretion of the institution, an alternative interpretation exists. Alternatively, the NLI can be viewed as a four-year contract that calls for a series of one-year performances.33 Many scholarship letters intimate that the one-year scholarship is renewable each year up to four years, provided the student meets the university's requirements. For example, in Rensin v. Indiana State Univ., the financial aid agreement read:
FINANCIAL AID AGREEMENT
Mr. Fred Rensing
Belleville, Illinois Sport: FOOTBALL
This is to certify that Indiana State University will award you an educational grant if you meet the academic requirements of Indiana State University and the [NCAA].
Your grant will consist of the following: Tuition Fees; Room and Board; and Book Allowance for a period of One Year.
This award may be renewed each year for a total of four years as long as you are academically qualified and abide by acceptable conduct standards.34
Although the current NLI, administered by the Collegiate Coaches Association, is a form-contract which can be modified, the language at the end of the above agreement seems to imply that the choice to renew the award is a bona fide conclusion, or at the very least, up to the discretion of the student-athlete, not the institution. The standardized, publically available model NLI contains similar, or even potentially more forceful, language, "This NLI is in full force and effect for a period of four (4) years, commencing with the date I sign this NLI."35
Because most students consider a scholarship to be a four-year ride, the actions of a university's agents, coaches, and administrators may reflect an intention to be bound for four years. Should an NLI be interpreted as a four-year contract, the efforts by an institution to revoke a student-athlete's scholarship without his consent as a result of oversigning would be viewed as a breach of contract.36 Still, given numerous court precedents declining to read implied terms into the scholarship contract between a student-athlete and a university, it is unlikely that such an alternative interpretation would prevail in court.37
Student-athletes inevitably harmed by the unsavory practice of oversigning may still have a number of legal remedies available to them. For those student-athletes who were promised or offered an athletic scholarship only to have that scholarship revoked before signing their National Letter of Intent, the doctrine of promissory estoppel or even an action for a breach of an implied contract may eventually prove to be successful should specific litigation ever be ruled on by the courts. Meanwhile, those student-athletes who have signed and already completed a full year under their NLI contract may also bring an action for a breach of express contract. Yet, with institutions likely reserving the right to decline to renew a student-athlete's one-year scholarship without justification, coaches are likely legally entitled to continue oversigning athletes and manipulate the scholarship system. Even with the NCAA's recent adoption of pending legislation permitting schools to offer student-athletes two- or even four-year scholarships, this policy is merely voluntary and still provides those schools who abstain from adopting it the ability to revoke scholarships upon their expiration.
In my next and final posting, I will scrutinize the morals and ethics of oversigning and offer my suggestions to fix what many perceive to be a broken system.38
1 See e.g., Fortay v. Univ. of Miami, CIV. A. No. 93-3443, 1994 WL (D.N.J. Feb 17, 1994); Ferd Lewis, "Player, UH settle lawsuit," The Star Tribune, June 8, 2010 (noting both Brian Fortay and Daniel Smith individually brought suit for breach of oral promises by universities, though both settled out of court).
2 Restatement (Second) of Contracts § 90 (1981).
3 Id, § 2 cmt. a (1981).
4 Id, § 90 (1981).
5 Andy Staples, "Going to court over commitment," Sports Illustrated, Feb, 29, 2008.
6 Id, at 3. ("On Jan. 11, the Smiths say that [Hawaii's defensive line coach Jeff] Reinebold called them to say that because of Jones' departure to SMU, all previous scholarship offers had been revoked").
7 Lewis, supra note 2.
8 Ross v. Creighton Univ., 957 F.2d 410, 417 (7th Cir. 1992).
10 Lucy v. Zehmer, 196 Va. 493, 503 (1954) ("an agreement or mutual assent is of course essential to a valid contract").
11 Timothy Davis, "Student-Athlete Prospective Economic Interests: Contractual
Dimensions," 19 T. Marshall L. Rev. 585, 601 (1994). The verbal commitment practice allows coaches to "provide answers which are motivated by their desire for the high school athlete to matriculate and participate in intercollegiate competition at a particular school, but which fail to comport with reality."
12 Manny Navarro, "The Lesson Bryce Brown Taught Us," Miami Herald, Feb. 27, 2009, (discussing the "phenomenon of being committed while looking elsewhere").
13 582 N.E.2d 54, 56 (Ohio Ct. App. 1990).
14 Id, at 59.
15 2011-2012 NCAA Division I Manual, Art. 15.3.3-15.3.5 (last visited Feb. 2, 2012) [hereinafter NCAA Bylaws].
16 Michael J. Cozzillio, The Athletic Scholarship and the College National Letter of Intent: A Contract By Any Other Name, 35 Wayne L. Rev. 1275, 1312 (1989).
17 Taylor v. Wake Forest Univ., 191 S.E.2d 379, 383 (1972).
18 NCAA Bylaws, Art. 188.8.131.52.
19 Gregg Doyle, "Bad guys utilize over-signing, and it has to stop," CBSSports.com, Aug. 8, 2010.
20 NCAA Bylaws, Art. 184.108.40.206
21 Porter received a scholarship to play football at LSU in the summer of 2009, and he was one of the team's first verbal commitments in July. After signing his NLI in February of 2010, Porter was informed there was no room for him in the class as head coach Les Miles misjudged how many of his academically shaky signees would qualify and reaching the 25-new player scholarship limit. Porter was granted release from his NLI and accepted a scholarship at Kentucky. However, he did not like Kentucky and soon returned to LSU, but is still not under scholarship. Doyle, supra note 22.
22 Specifically, breaching NCAA Bylaws, Art. 220.127.116.11 and Art. 18.104.22.168 ("Institutional financial aid award based in any degree on athletics ability may not be reduced or cancelled during the period of its award").
23 "Definitions," supra note 1.
24 Kelly Whiteside, "Rules fail to curb schools from oversigning football players," USA Today, Feb. 1, 2011.
25 690 F. Supp. 940, 942 (D. Kan. 1987).
26 Id, at 946-947.
27 Id, at 947.
28 778 F. Supp. 1490, 1492-93 (S.D. Iowa 1992).
29 Id, at 1493.
30 Restatement (Second) of Contracts § 213 (1981).
31 Text of the National Letter of Intent, § 15, "Understanding the National Letter of Intent," Baseball Factory (last visited Feb. 15, 2012).
32 See e.g. Jackson, 778 F. Supp. at 1493.
33 See Niedermeyer v. Curators of Univ. of Mo., 61 Mo. App. 654 (1895); Rensing v. Indiana State Univ. Bd. of Trustees, 437 N.E.2d 78 (Ind. App. 1982).
34 Rensing, 437 N.E.2d at 80.
35 Model National Letter of Intent for 2011-2012 Text of the National Letter of Intent, § 17, "Understanding the National Letter of Intent," Baseball Factory (last visited Feb. 15, 2012).
36 NCAA Bylaws, Art. 22.214.171.124.
37 See Jackson, 778 F. Supp. at 1493; Hysaw, 690 F. Supp. at 947.
38 Sports Illustrated, "Some schools begin pledging 4-year scholarships," Feb. 1, 2012.