Leveling the playing field: applying the doctrines of unconscionability and condition precedent to effectuate student-athlete intent under the National Letter of Intent.

• Author: Riella, Michael J.

"I don't feel like I should play for somebody who has never seen me play." (1)

"The players have no voice, and that's wrong.... [I]f a coach leaves before the player sets foot on campus, the player should have the ability to choose [a school] again." (2)

Under the current rules governing an incoming student-athlete's relationship with the chosen university, however, the player does not have such a choice. The dramatic turnover of intercollegiate coaches in recent years (3) has resulted in an increasing number of incoming student-athletes who have signed a National Letter of Intent (NLI) (4) to play for and attend a particular institution being "left behind" when the coach for whom they have chosen to play departs for greener pastures. A coach is free to leave the university to pursue alternate career paths, often bringing his or her style of play to another university, yet the athletes recruited to play in that coach's system are precluded from following the one for whom they wished to play.

The National Collegiate Athletic Association (NCAA), the Collegiate Commissioner's Association (CCA), and proponents of the NLI see no injustice in such a situation. (5) They stridently assert that the athlete agrees to toil in a program, devoting countless hours to practice, and incurring obligations far greater than a nonathlete student, not because of an affinity for a particular coach's personality, style of play, or reputation for molding professional athletes, (6) but for the school itself. (7) Such views hold true in numerous situations, but are not shared by those left with uncertain futures because of the coach's departure--the incoming student-athlete. (8) Enforcement of the NLI results in a situation in which a coach can tear up his contract and move to an environment in which he can immediately pursue his dreams, aspirations, and occupation. The prospective student-athlete, however, is not so fortunate. (9)

The current NLI enforcement policy has been severely criticized by intercollegiate coaches. Dale Brown, the former head men's basketball coach at Louisiana State University, once compared the athlete's predicament to that of a bride arriving at the chapel and discovering that the groom did not show. (10) Rick Pitino, once notorious for moving from one coaching position to the next, stated that his "personal feeling is that the recruits should have the right to go" and follow their coaches. (11) Even Cedric Dempsey, president of the NCAA, agreed that the welfare of the student-athletes should be taken into account "because they're the ones who are caught in the middle." (12)

Despite such sentiment, and the outcries of players who have been jilted at Dale Brown's proverbial alter, players continue to be bound to the universities with which they signed. The rules governing the NLI

have not been discussed at any great length [by college sports administrators] in recent years. But as we have become more and more concerned about ... student-athlete welfare this is one of those issues where you ask: Are the rules fair to the student-athletes? This is certainly an issue that deserves some discussion. (13) Such a discussion, in the context of presenting two avenues for student-athletes to free themselves of the NLI's transfer constraints, is the focus of this Note. The current rules and relationships between college administrators and student-athletes harken to a time when coaches remained at institutions for their entire careers (often becoming institutions in their own right), but are no longer applicable in the current era of intercollegiate athletics. The primary goal of this Note is to apply traditional contract principles to the NLI to posit possible causes of action that support the incoming student-athlete's position, and that would afford such an athlete the option to reselect a school if the athlete's anticipated coach has vacated the position.

The first part of the Note will introduce the reader to the NLI: its history, provisions, and purposes. (14) The second part will discuss the contractual nature of the student-university relationship to lay the groundwork for a discussion of the student-athlete's possible causes of action. Courts' general unwillingness to rule in the student's favor in actions brought against their respective universities and the failed legal theories asserted in such suits will be explored as well. (15) Finally, the third part will propose and analyze novel causes of action that the student-athlete may be able to assert in a successful action to terminate the NLI when a coach surrenders his or her position. Specifically, the athlete may assert nonperformance of conditions precedent to formation of a contract with the university, and apply the doctrine of unconscionability to the NLI itself. (16)

The scope of this Note is limited to possible causes of action for attacking the restrictive nature of the NLI by incoming student-athletes [hereinafter athletes]. The concerns of those already matriculated and involved in the athletic program, though no less significant, will not be addressed.

To place the Note in the proper context, an analogous situation that nonsports fans are more likely to understand may be appropriate. Not allowing the athlete the option to transfer when a coach leaves is akin to eating at a restaurant and receiving the wrong entree. If you order chicken and get beef, (were the CCA and NCAA operating the establishment) you would be obligated to eat it, even though it was not your choice. One of the advantages of eating out is that we are allowed to order what we want, constrained of course by restaurant type and menu selection, and if we receive the wrong dish, we can send it back in exchange for the desired entree. That same opportunity should be afforded to athletes. (17)

THE NATIONAL LETTER OF INTENT

History

The National Letter of Intent Program (NLIP) is administered by the CCA, with the basic purpose of providing certainty in the recruiting process. (18) Started in 1964 with seven conferences and eight independent institutions, fifty leagues and over 500 institutions currently participate in the program. (19)

The NLIP was spawned by concerns for both the athlete and the recruiting institutions. During the early years of college athletics, recruiting efforts focused on the geographic region in which the university was located. (20) Advances in technology and transportation, however, quickly expanded the scope of recruiting efforts, and with the return of World War II soldiers, university officials began to see athletic programs as an untapped revenue source. (21) Increased focus on revenue derived from "big time" athletic programs resulted in a correspondingly increased emphasis on recruiting. Few, if any, rules existed to regulate university recruiters' conduct towards a potential athlete. (22) The athlete heard sales pitches detailing a program's storied past and bright future, and coaches often engaged mothers in "sincere" conversations regarding the athlete's education and general well-being. (23) Athletes and their families were constantly under pressure to attend one university or another, and the athlete's schedule was continually disrupted. (24)

The fierce recruiting battles for "blue chip" athletes took its toll on universities as well. Larger institutions often faired better financially than smaller universities, but the impact on athletic department budgets was noticeable across the board. (25) The movement for a solution or an alternative to the then-prevalent recruiting practices grew in strength as economic exigencies reached prohibitive proportions. (26)

By the early 1960s, after fifteen years of conference-by-conference experimentation with various letter-of-intent programs, momentum gathered for a national letter of intent. (27) Initial NCAA suggestions for a compulsory system were met by vigorous dissent, led by smaller universities who viewed a letter of intent as favoring larger, more financially sound institutions. (28)

A voluntary program, adopted in 1964, called for a prospective athlete, a parent or guardian, and the chosen institution's athletic director, to sign an "Inter-Conference Letter of Intent" on a specific date. (29) The letter certified that the student intended to enroll at the chosen institution and indicated, if applicable, any financial aid that was to be provided to the student by the institution. (30) From the athlete's view, the primary reason for signing the NLI was that once signed, no other participating institution could recruit the athlete further. (31)

The Current NLI and Requirements

The NLI is "a contract of sorts, a written agreement.... The most important service the program does is cease the recruiting process when the kid signs." (32) The NLI is a binding agreement between a prospective athlete and an institution in which the athlete agrees to attend the institution for one full academic year in exchange for athletic financial aid for that year. (33) The athlete must be academically eligible to attend the chosen institution and the NLI must be accompanied by an institutional financial aid agreement. (34) The NLI does not guarantee the athlete a place on the sports team, nor does it guarantee playing time. Further, the NLI is not satisfied if the athlete completes one season of athletic competition--he or she must attend the institution for one academic year. (35)

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. 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. (36) 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. (37)

Penalties will be imposed on...