How Blocking College Transfer Interference Protects Program and Player Futures

A Power Four university football coach recently opined that the problem with the current transfer environment is that there are no consequences when competitors interfere with players already under contract. He produced evidence that a competing university contacted one of his players and noted that NCAA rules prohibit tampering but were not being enforced.

No less authority than the Old Ball Coach, Steve Spurrier, later told USA Today he thought someone would have told the coach that “there ain’t no rules anymore.” Though there may no longer be any rules, there fortunately are laws against this type of interference and courts in which to enforce those laws. Recent transfer portal dustups made these issues national news. The NCAA is weighing in, but the courts might give schools a better chance to deter this practice in the near future.

The NCAA’s Response

The NCAA expressed intent to enforce these rules, but that will first require an NCAA investigation, which is seldom quicker than the court system. An investigation would place the NCAA uncomfortably between its two fighting member institutions, lack subpoena and discovery power, and likely produce due process questions based on prior cases.

Further, any significant sanctions imposed by the NCAA as a result of an NCAA investigation will likely be challenged in court by the offending university, raising claims of arbitrary deprivation of due process and selective enforcement and further delaying a remedy.

For an illustration of these issues, one need look no further than the recent findings of the Circuit Court of DeKalb County, Alabama. The court entered an injunction blocking enforcement of a Public Infractions Decision levying sanctions against a football coach as the result of an NCAA investigation, ruling the coach’s claims against the NCAA’s investigation procedures had merit. 

How Courts Could Deter Player Interference

Different action should be considered, because even if there are no longer any rules, there fortunately are laws against such conduct and which provide remedies. If one school has a binding contract with a player with which it is complying, and another university tries to induce the player to breach that contract, the school could file suit and seek redress, which may be a more direct and effective route than NCAA or Congressional intervention.

The lawsuit would solve many of the problems inherent in the current NCAA investigative process. Notably, the victim university may sue the offending university, and any agent, representative or person involved in interfering with its contractual relationship. The lawsuit can seek from a jury the maximum damages allowed by state law. By swiftly acting against all those who were part of the interference, a university could hopefully deter them or others from doing something similar again, not to mention enforce its contractual rights and recoup damages.

How Does Player Interference Hurt Schools and Athletes?

In the case of tampering with an existing contractual relationship between a player and a university, there seem to be certain common consequences. The victim university entered and performed a contract, relied on its performance by the player, promoted its program to ticket buyers, advertisers, and supporters, and will be left fielding a lesser product due to the loss of the player. By entering or extending the contract:

• The player likely motivated competing players on the roster to transfer.
• The university was limited in its opportunity to pursue other players to replace the tampered-with player.
• Potential incoming transfers (not to mention organic recruits) were likely caused to not have interest in the university, since it had a capable incumbent player in place. 

The conduct of the player could also destroy any value of commercial NIL rights the university continues to hold. This is a situation faced by every program experiencing unauthorized interference with its contractual relations, and there are wide ripple effects which can produce substantial monetary damages. These are unlikely to be recouped by an NCAA investigation but would be available in litigation.

Managing Risk in the Player-School Relationship

How to treat the player where interference is concerned has been the subject of debate. Some say that taking action against the player will chill the ability to recruit other players in the future, and in a vacuum, there could be something to that position. Regardless, the player is not the true problem. It is the offending university and those acting with it. Still, by entertaining the interfering offers or proceeding past that to breach the contract, the player has violated his contract and damaged his own reputation. That said, the player joined to the litigation could be separately settled for a nominal sum or other relief and might have recourse against the other parties and advisors for getting him into that situation.

Universities can mitigate many player-related concerns by taking strong positions as part of recruiting that they will:

• Compensate players
• Put their commitments in writing so players know they can enforce them
• Perform and operate with integrity according to the contract and expect players to do the same

Regardless, the people the university should focus on holding accountable are competitors who interfere and individuals who facilitate interference.

A unique aspect of this type of litigation is that it is almost always brought where the contract was to be performed, which is the county where the university is located. A first-of-its-kind trial in a college town would be highly publicized and likely precedent setting.

One is reminded of legendary folksy Wyoming lawyer Gerry Spence suing Penthouse Magazine in Jackson Hole, Wyoming, in 1980 for defamation on behalf of Miss Wyoming. A Wyoming jury sent a message and returned a verdict for her of over $25 million, worth nearly $100 million today. Local juries can be sensitive to the rights of their own.

A similarly high-profile verdict might go a long way toward deterring poaching universities.

Please contact Tom Sullivan, Rhett Parker or any member of the Phelps sports, media and entertainment team with questions or for advice or guidance.