"Notional" Letter of Intent: College Football Offers More Than It Can Deliver, Part 3
Written By: Justin N. Fielkow
Read Part 1 here. | Read Part 2 here.
This is the third of a three-part series analyzing 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. Part Two analyzed the legal implications of and potential remedies for oversigning, including a promissory estoppel cause of action and breach of contract claim. Finally, this post will scrutinze the ethics and morality of oversigning as it relates to the current world of big-money college football and the impact the practice has on student-athletes.
Ethics of Oversigning
Big-money college football is a broken system. The application of the rules and regulations passed by the NCAA are rife with hypocrisy. Institutions and their coaches clearly operate under different standards than those expected of the student-athletes who fuel the behemoth that is college football. In 2010, the NCAA suspended University of Georgia receiver A.J. Green four games for selling his jersey.1 While Georgia's athletic department is allowed to sell that same jersey to profit the athletic department, Green was ruled ineligible. Meanwhile, 25 different players were arrested and subsequently punished to varying degrees in the short time that Urban Meyer was head coach at the University of Florida.2 In many circumstances, an institution would deem their program wildly out of control, with the blame falling directly on the man in charge, the head coach. However, with Meyer winning multiple championships during his tenure, neither the university nor the NCAA stepped in and issued so much as a public reprimand.
Further evidence of this dual standard is the ability of coaches and players to switch schools. While coaches can move about with relative ease, players are largely immobile once they sign an NLI. Clearly, players and institutions, along with their head coaches, operate under different standards. The NCAA's "paper tiger" regulations regarding oversigning in college football reflect that imbalance.
Said Ole Miss coach Houston Nutt in 2009, "[t]here's no rule that says we can't sign 80 [recruits]. All I know is we have to have 25 ready to go in August."3 While Nutt obviously meant his statement as a joke, he is not too far off point. Schools often sign more players than they have available roster spots under the assumption that not all of the signees will qualify for the financial aid award.4 While in some instances this ends up being the case, often schools are left with a numbers crunch when more than 25 of the up to 28 NLI-signees qualify.5 Thus, lesser regarded signees are told there is no room for them, regardless of when they verbally committed or signed their National Letter of Intent (NLI). For example, Cameron Fordham turned down other scholarship offers, verbally committing to play for Les Miles at LSU.6 The summer before enrolling, Cameron was informed there would not be a scholarship available to him. Lacking other opportunities on such short notice, he was forced to accept an offer to walk-on at LSU and pay his own way through school.7 This situation is not always an option for many prospective student-athletes, yet coaches and universities continuously gamble with the lives of these young men by playing a recruiting guessing game.
In many instances, schools not wishing to lose recruits or face the legal consequences of denying a player his scholarship after signing a Letter of Intent ask a borderline student-athlete to "gray-shirt" in an attempt to mitigate the immorality of a failed recruiting gamble.8 NCAA rules state that college football players have five calendar years to complete four seasons of play.9 When a recruit enrolls at an institution, he can defer scholarship benefits until the following calendar year so long as he is not enrolled as a full time student (achieved by taking fewer than 12 credit hours).10 This restricts the student from engaging in certain team activities, playing in games, and accruing financial benefits, but in terms of the scholarship numbers, grayshirted student-athletes don't count against NCAA scholarship limits until the following year.
Advocates of grayshirting will often point to its benefits. Athletes can get bigger, faster and stronger without expending eligibility or using up their redshirt season. Also the process is similar to prep school, only better because the student-athlete can be on campus, train with future teammates, and get acclimated to the college environment and workload. Plus, any credit hours completed still accrue, affording the student-athlete a significant head start in maintaining adequate academic progress throughout his collegiate career.11 Head coaches such as University of Alabama's Nick Saban will point to outliers such as John Parker Wilson who readily accepted a grayshirt under coach Mike Shula and became one of the most prolific passers in Alabama school history.12
However, none of these factors take into account the fact that most grayshirts are concealed until absolutely necessary.13 This is the main complaint with the practice. Where schools are upfront about the possibility of a recruit grayshirting or a program oversigning, the harm that results can be mitigated or completely avoided. But most student-athletes will not consider attending a school where they must defer financial benefits or playing time.14
According to the Collegiate Commissioners Association, the governing body of the NLI program, grayshirting is not supported, and a policy is in place nullifying the NLI if a coach or institution asks the student-athlete to grayshirt, thereby allowing the prospective student-athlete to enroll at a different university without suffering under restrictive transfer rules.15 Unfortunately, this is not much of a remedy since most schools have already filled up their recruiting classes by this point, leaving no scholarships available for the student athlete who was surprised by the grayshirt. Thus, many student-athletes decide to delay enrollment and accept the gray shirt, ensuring the NLI remains valid.
In the hyper-competitive atmosphere of big-money college football, coaches will wait until learning whether the oversigning gamble will pay off before informing recruits that they must accept the grayshirt offer to play football at the school, at which point many student-athletes are left with no other option other than to accept the grayshirt.16 It is such actions that have led to those with a voice, such as University of Florida president J. Bernard Machen, to label the practice of grayshirting morally "reprehensible" and unethical as coaches play Russian roulette with the lives of young men because of their football talents.
Even where a school successfully slides under both the 28-signee and the 25-annual new scholarship limit per recruiting year, they are often in violation of the NCAA's 85-scholarship limit for the entire roster.17 Where schools are over the 85-scholarship limit, some student-athletes will see their annually-renewable one-year scholarship unilaterally "revoked." Yet, according to Alabama's Nick Saban, who has signed 133 recruits in 5 years, "[w]e have never gotten rid of a player because of his physical ability." Saban has further stated:
"Any player that has left this program prematurely has created his own exit route . . . He's created his own conditions for leaving, if that makes any sense, whether they're academic in terms of not doing what he needs to do academically, whether there's some violation in terms of team rule or policy, whatever it is. Some of these things we're not allowed to comment on."18
The reason Saban would decline to comment on specific accusations of oversigning is because he alone knows the truth. Why else would Alabama withhold their scholarship numbers information from the media?19 According to ex-Alabama players such as Chuck Kirschman, Saban pressured them to take "medical hardship" scholarships.20 These scholarships, which are allowed under NCAA rules, are intended to make sure scholarship athletes who are too injured to play don't lose their financial aid. A player who receives one of these scholarships, however, is finished playing with that team. Often, however, players who are not seeing significant minutes are encouraged to accept these scholarships in order make room for recently signed recruits. Between 2007 and 2010, Alabama offered at least 12 medical hardships.21 To compare, much maligned, former-Ohio State head coach Jim Tressel, who also competed for multiple national titles, only placed four players on hardship scholarships in his entire 10-year tenure.22 It is clear that Saban's numbers are likely inflated in an effort to gain every possible competitive advantage, even if it means exaggerating the degree of a player's injury and manipulating a rule that is in place to benefit the student-athlete befallen with unfortunate luck. While advocates of oversigning will retort that the students still receive financial windfall, they fail to take into account the fact that young, talented student-athletes are denied the opportunity to ever compete again at the collegiate level, leaving ex-players bitter about the business of college football and the questionable ethics of coaches and universities who supposedly have their best interests at heart.23
Due to the negative public backlash that would result, schools often attempt to avoid simply cutting a player who fails to live up to expectations.24 In order to avoid such headlines, schools instead release players from their scholarship for violations of vague team rules.25 Inevitably, there exists a double standard for the top student-athletes and fringe players. "Violation of team rules" is a catch-all phrase that can cover anything from missing team meetings or practices to failing the mandatory drug testing all players must submit to in the month leading up to the bowl. In most instances, schools are not required to reveal exactly what violation occurred.
Under the guise of "a violation of team rules," a coach can cut a player from the roster for a seemingly innocuous offense. Meanwhile top players, such as Oklahoma State star wide receiver Justin Blackmon who received only a single-game suspension despite being arrested for a DUI before he even turned 21 years old, are merely slapped on the wrist for seemingly major violations.26 It is often up to head coaches to utilize their discretionary powers to determine appropriate punishments for such violations of team rules. Unfortunately, in too many cases, coaches use the notion of a "violation" as an excuse to dismiss players when faced with an oversigning numbers crunch.27
Further, there exist competitive advantages to the practice.28 Because of oversigning, Southeastern Conference (SEC) teams have signed 321 more players over the last nine seasons than football teams in the Big Ten Conference (including Nebraska).29 Basically, each of these SEC teams has had an entire extra recruiting class to sift through in order to find the talent to beat their opponents. For example, Ohio State faced an Arkansas team in the 2011 Sugar Bowl that had signed 30 more players than the Buckeyes in the preceding four-year period.30 Said Sports Illustrated's Andy Staples, "[t]he coaches who signed more players had a chance to erase their mistakes. The coaches who signed fewer had to live with their mistakes. That certainly seems like a competitive advantage."31
Universities go to great lengths to conceal their intent to choose not to renew a student-athlete's annual, merit-based financial award by offering medical hardships, inventing violations to mask cuts, and hiding true scholarship figures. These actions highlight the murky ethics of the oversigning practice and the unequal balance of power between the university and the student-athlete, despite the notion of a bilateral contract between them. Because of NCAA loopholes, less talented players are pared from rosters and have their scholarships given to more recent recruits. Legal? Debatable, as discussed in Part Two of this series. But moral? With players left to fend for themselves without financial aid, many are unable to continue to attend the institution. Therefore, it is no surprise that the Big Ten, which most completely regulates the practice of oversigning, boasts a significantly higher graduation rate for its football players than other NCAA institutions.32 While competitively the Big Ten is at a disadvantage without the substantial opportunity for "do-overs" via oversigning, it is to the benefit of young, impressionable student-athletes, who retain the opportunity to at least pursue the academic opportunities promised them, even where they did not meet expectations on the football field.
To stem the morally repugnant and competitively unbalanced practice of oversigning, the NCAA must step in and enact rules that close up the loopholes in its regulations, through mandatory multi-year scholarship awards, increased transparency in the recruiting and NLI process, and more effective enforcement measures.
To start, the financial agreement between the institution and the prospective student-athlete should be a four-year arrangement. Since 1973, under pressure from cash-strapped institutions and claiming the need for uniform competition, the NCAA banned colleges from offering scholarships for longer than one academic year.33 The Division I Board of Directors recently approved a measure that gives individual schools the authority to award scholarships on a multiple-year basis.34 This is clearly a step in the right direction. However, the decision whether to adopt multi-year scholarships is up to the individual schools and is not mandatory, significantly diminishing its effect in protecting student-athletes.35 Further, this measure was hardly adopted unanimously. In an effort to override the new legislation, 62.12% of the 330 voting institutions voted to shoot down the proposal.36 A 62.5% majority was needed to override the legislation. With such a high number of schools opposing even such a small, voluntary step towards reforming a broken system, the courts, or even Congress, should step in and ensure that scholarships are multi-year contractual arrangements.
Another, less drastic step the NCAA could take would be to adopt the regulations that have been in place in the Big Ten Conference since 1956. In the Big Ten, schools are limited in the number of offers they can issue prior to the signing period.37 Further, while schools in the Big Ten are allowed to oversign by three, much like the 28-signee limit recently implemented by the NCAA, transparency via a monitoring procedure has profoundly deterred revocation of scholarships.
According to the Big Ten's Associate Commissioner Chad Hawley, "[a]n institution that ultimately oversigned has to account for every signed prospect--did they enroll, and if not, why? In addition, the institution has to account for every student-athlete who received a scholarship the previous year."38 These student-athletes will fall into four basic categories: (1) renewal-counter, (2) renewal-noncounter, (3) nonrenewal-graduate, and (4) nonrenewal-other. For any student-athlete categorized as "nonrenewal-other" - defined as a student-athlete who has, transferred, turned professional, or knew they were getting aid for just one year - the institution must provide the reason the student-athlete was classified as "nonrenewal-other." This includes any information regarding the student-athlete's history at the institution (including academic history), who initiated the nonrenewal (student-athlete or institution), whether a hearing for nonrenewal of aid was requested by the student-athlete, and the student-athlete's present status.39 Such stringent review standards help to curb the oversigning practice as institutions are required to "open their books" as to how and where spots became available for players in oversigned classes.
The transparency of the Big Ten system is a huge upgrade over the current NCAA regulations; however, it still lacks a critical aspect, namely, enforcement. Andy Staples recommends hitting chronic oversigners where it hurts the most: by taking away scholarships from the coach who oversigns.40 While loose with potentially unlimited offers, scholarships are one of the most valuable and scarce resources at a coach's disposal. Says Staples, "[i]f a coach fails to provide a promised scholarship to a signee, he gets one mulligan. Everyone makes mistakes. Do it again, and the program loses five scholarships for a year. Do it a third time, and the program loses 10 scholarships."41 Under Staples's rule, the same rules apply even where a coach is manipulating the medical hardship rule to accommodate oversigning practices, except without the mulligan. Such a rule would provide teeth the current NCAA regulations and Big Ten monitoring procedures lack.
Advocates of oversigning will claim that college football is a business, and there is nothing wrong with universities engaging in such competitive practices, so long as they are within the bounds of the law and NCAA guidelines.42 However, such an attitude fails to take into account the persistent exploitation of young men who are dependent on coaches and universities keeping their promises amidst a flawed system. Athletic departments already exploit student-athletes for tens of millions in profit in exchange for a minimal price - the cost of an athletic scholarship. Yet, where players are deemed to have no further value to an institution and punished through the revocation of their financial scholarship, the line between college and professional football becomes blurred to the point where universities forget that they are first and foremost academic institutions shaping the minds of young individuals, regardless of the amount of money that is poured into their football programs. It is at that sad point where institutions championing higher learning allow the notions of fair play, morality, and ethics to be compromised in the name of winning a game played primarily by teenagers.
1 Clay Travis, "A.J. Green Case at Georgia Illustrates Hypocrisy of College Football Jersey Sales," AOL News, Sept. 8, 2010, http://www.aolnews.com/2010/09/08/a-j-green-case-at-georgia-illustrates-hypocrisy-of-college-jers/.
2 Steve Weinberg, "Florida says football arrests shouldn't define its program overall," USA Today, Sept. 24, 2010, http://www.usatoday.com/sports/college/football/sec/2010-09-23-florida-football-arrests_N.htm.
3 Andy Staples, "Oversigning offenders won't be curbed by NCAA's toothless rule," Sports Illustrated, Jan. 24, 2011 (quoting Nutt during his 2009 National Signing Day press conference).
4 Gregg Doyle, "Bad guys utilize over-signing, and it has to stop," CBSSports.com, Aug. 8, 2010 (LSU's Miles "intentionally went over the 25-signee limit, assuming several would fail to qualify").
5 Under newly enacted NCAA bylaw 220.127.116.11, schools are limited to annually signing 28 prospective student-athletes to a National Letter of Intent. Still, schools may only roster 25 new scholarship student-athletes. 2011-2012 NCAA Division I Manual, Art. 18.104.22.168 (last visited Feb. 2, 2012) [hereinafter NCAA Bylaws].
6 Staples, supra note 3.
7 Michael Carvell, "Ex-LSU offensive lineman Cameron Fordham transfers to NC State," Atlanta Journal Constitution, Aug. 16, 2011, http://blogs.ajc.com/recruiting/2011/08/16/ex-lsu-offensive-lineman-cameron-fordham-transfers-to-nc-state/ (reporting that Fordham eventually transferred to North Carolina State University after one year at LSU, but will have to sit out the 2012 season per NCAA transfer rules).
8 Definitions," Oversigning.com (last visited Feb. 2, 2012) (defining "Gray Shirt").
9 NCAA Bylaws, Art. 14.2.1.
10 NCAA Bylaws, Art. 22.214.171.124.
11 "Shades of Gray: The Abridged Guide to Grayshirting," DawgSports, Jan. 15, 2008.
12 Travis Reier, "Signing Day 2005: Tide Takes Care of Business," Rivals.com, Feb. 2, 2005; "2011 Alabama Football Record Book," at 10-11, 16-18.
14 "Shades of Gray," supra note 10.
15 Greg Johnson, "Football Issues Committee to monitor oversigning," National Collegiate Athletic Association, Mar. 3, 2011, http://www.ncaa.org/wps/wcm/connect/public/ncaa/resources/latest+news/2011/march/football+issues+committee+to+monitor+oversigning.
16 Mike Easterling, "Collins Moore signs with Ole Miss," The Huntsville Times, Feb. 2, 2011 (reporting the circumstances of Collins Moore, who committed to Ole Miss in August 2010, but was informed in late January that the team no longer had a scholarship to offer him and was asked to gray shirt, which he accepted, even though he would be unable to officially join the squad until next January); Kevin Scarbinsky, "Late grayshirts a black mark against college football," The Birmingham News, Aug. 8, 2010 (reporting that Harrison Jones, younger brother of starting guard Barrett Jones, signed with Alabama the first week in February 2010, moved into the dorm in May, enrolled and earned stellar grades in summer classes, and excelled in the team's summer conditioning program, yet was asked to grayshirt, delaying his enrollment until January, move out of the dorm, and defer his athletic scholarship because a higher-regarded 2010 signee received
17 J. Bernard Machen, "Florida president: grayshirting is morally reprehensible practice," Sports Illustrated, Feb. 1, 2011, http://sportsillustrated.cnn.com/2011/football/ncaa/01/31/bernard.machen.letter/index.html.
18 See Staples, supra note 3.
20 Citing federal privacy laws, Alabama refused to release the number of scholarships given to each sport. In contrast, Northwestern University's Pat Fitzgerald openly declared, "[w]e are at 85 scholarships, we had 17 to give, and we are at 85 right now." Marquavius Burnett, "University blacks out scholarship numbers," The Crimson White, Apr. 13, 2011, http://cw.ua.edu/2011/04/13/university-blacks-out-scholarship-numbers/
21 Hannah Karp & Darren Everson, "Alabama's Unhappy Castoffs," Wall Street Journal, Sept. 24, 2010 (reporting ex-players say coach Nick Saban pressured them to take medical scholarships).
23 Stewart Mandel, "Decoding Nick Saban's surprising diatribe in defense of oversigning," Sports Illustrated, Feb. 4, 2011, http://sportsillustrated.cnn.com/2011/writers/stewart_mandel/02/04/saban-oversigning/index.html.
24 Karp & Everson, supra note 21.
25 Randy Rogers, "Inside the Verbal Commitment Circle," Rivals.com, http://studentsports.rivals.com/content.asp?CID=504616 (last visited Feb. 2, 2012).
26 NCAA Bylaws, Art. 126.96.36.199 (during the period of the NLI, a scholarship may be cancelled if the student-athlete renders himself ineligible for competition or engages in serious misconduct).
27 "Justin Blackmon suspended one game," ESPN, Oct. 28, 2010, http://sports.espn.go.com/ncf/news/story?id=5734722 (last visited Feb. 14, 2011).
28 Hannah Karp, "Former Players Say Saban Twisted the Truth," Wall Street Journal, Nov. 25, 2010 (Alabama's football coach said four athletes were let go for breaking team rules, yet, three of them say those allegations are not true).
29 Ken Gordon, "College Football Rules on oversigning put Big Ten at a disadvantage," The Columbus Dispatch, Feb. 15, 2011.
30 "Recruiting Numbers," Oversigning.com, http://oversigning.com/testing/index.php/recruiting-numbers/ (last visited Feb. 14, 2011).
31 Staples, supra note 3.
33 The Football Bowl Subdivision boasts an average "Graduation Success Rate" of 67% for all of its players, according to the NCAA's 2010 graduation report. 11 of the SEC's 14 football programs, including recent additions Missouri and Texas A&M, are at or below that average, compared to five of the Big Ten's 12 football programs. "The Bootleg's 2011 Graduation Rate Analysis," The Bootleg, Scout.com, Apr. 22, 2011.
34 "Suit claims antitrust law violations," ESPN, Oct. 26, 2010.
36 Michelle Brutlag Hosik, "Multiyear scholarship rule narrowly upheld," National Collegiate Athletic Association, Feb. 17, 2012.
38 Andy Staples, "Schools, not NCAA, standing in he way of positive scholarship change," Sports Illustrated, Dec. 20 2011.
40 Hosik, supra note 35.
41 "Chad Hawley on how the Big 10 Monitors Oversigning," Oversigning.com (last visited Feb. 13, 2012) (according to Big Ten Conference Associate Commissioner, Chad Hawley, Big Ten schools are required to establish a budget on how many offers they can give equal to the number of available scholarships under the 85-scholarship limit plus three).
44 Staples, supra note 3.
46 Hannah Karp & Darren Everson, "SEC Coaches Defend 'Oversigning'," Wall Street Journal, Mar. 1, 2011, http://online.wsj.com/article/SB10001424052748704444604576172954187357370.html?mod=wsj_share_twitter.