THE NCAA'S TRANSFER CONUNDRUM.

• Author: Gerace, Christopher J.

INTRODUCTION

In September 2018, Kelly Bryant was demoted from the position of starting quarterback for the Clemson University football team. (1) While it is not uncommon for players to be benched in college athletics, whether it is a result of performance, behavior, or otherwise, Bryant reacted negatively to the benching, calling it a "slap in the face." (2) Only a few days after being benched, and after a conversation with Clemson head coach Dabo Swinney, Bryant announced that he would be transferring to a new school. (3)

Transfers in National Collegiate Athletic Association (NCAA) Division I sports have become a topic of interest and controversy in recent years. Trends from the NCAA's own research appear to indicate that there has been a small uptick in the incidence of student-athlete transfers in the NCAA's revenue-generating sports, (4) though the increase in some sports has been smaller than others. More specifically, men's ice hockey has seen a dramatic increase in the proportion of its student-athletes who have transferred in the last fourteen or so years, while men's and women's basketball and bowl subdivision football have all seen modest increases in the number of student-athlete transfers over that same time frame. (5) AthleticDirectorU has done an in-depth analysis of the recent trend of transfers in NCAA men's basketball, stating that "transfers have become a vitally important aspect of college basketball." (6) The NCAA's graduate-transfer rule-which generally permits student-athletes, who are enrolled in graduate school at a different institution from where they received their undergraduate degree, to participate immediately in their respective sport (7)-has contributed significantly to the overall prevalence and impact of student-athlete transfers on collegiate athletics. The number of graduate transfers in the NCAA has increased markedly since 2011. (8) Many of the most noteworthy cases of student-athletes exercising their graduate-transfer eligibility have come in just the last few years, mostly in college football. (9) Graduate-transfer quarterbacks in particular have drawn a large amount of attention, if for no reason other than their importance on the football field. In what has become a new trend in college football, reliance on quarterbacks joining Division I teams via the graduate-transfer rule is beginning to look like the new normal. (10) Because of the immense amount of media attention that college football generally garners, it may seem as though transfers (graduate or otherwise) are most prevalent in that sport only, but the impact of the transfer rules has been felt throughout collegiate athletics.

College coaches and administrators have not been shy about discussing the impact of the increasing number of transfers in their respective sports. One men's basketball coach anonymously said that "[t]ransfers and grad transfers have changed recruiting more for us than any calendar change." (11) The popularity of graduate transfers, and the fact that the student-athletes have immediate eligibility upon transferring to play without sitting out a year, seems to have galvanized the movement for more flexibility and freedom for undergraduate student-athletes who want to have control over where they play a college sport, without having to wait a year sitting out under the NCAA's longstanding year-in-residence rule. (12) Coaches have become concerned with the creation of something akin to free agency in professional sports, fearing that allowing student-athletes to transfer at will and without restriction will damage the landscape of college athletics. And the graduate-transfer rule seems to be particularly hard on mid-major schools that risk losing their best players if they develop into great players and are able to graduate early or retain a year of eligibility after receiving their undergraduate degrees. While the rule was undoubtedly intended to create a reward of sorts for student-athletes who earned their diplomas, school officials seem to believe that it has had a fairly negative impact on the sports themselves. (13) This has led to some coaches pondering measures that seem inconsistent with the goals of the graduate-transfer rule and with academic considerations generally: at least one mid-major Division I men's basketball head coach has stated an intention to "slow[ ] down the graduating process" for student-athletes so as to lessen the chances that the players are able to jump ship, so to speak, to a larger or more prominent program. (14)

In a sense, some feel as though the graduate-transfer rule actually penalizes schools for "doing their jobs well" by supporting their student-athletes and helping them graduate early or on time. (15) And most concerning to these coaches is the specter of a free-agent market. Coaches and schools have taken notice of the trend in higher-level college basketball schools of putting together a list ahead of the season of any student-athletes who may be eligible to transfer as a graduate student. (16) And it does not stop there-in some instances, schools will then contact former coaches of the eligible student-athletes to express their interest in a potential graduate-transfer situation. (17) As a result of the potential for collegiate free agency, some coaches have suggested alterations to the current graduate-transfer rule. One coach recommended an additional graduate-transfer requirement that schools have to use a scholarship for graduate transfers for two years, unless the student-athlete actually receives his or her graduate degree in one year. (18) Another coach proposed getting rid of the graduate-transfer rule altogether, suggesting a broad rule for all transfers: "Just have people sit no matter what.... If you transfer, you have to sit a year." (19) Coaches are not the only ones who are concerned about the more lax transfer rules-some players have spoken up, as well. Hunter Renfrow, a wide receiver for Clemson's football team, expressed his concerns about the rule that would permit Kelly Bryant to transfer after playing four games this season before being benched. (20) Renfrow's uneasiness is similar to the free-agency concerns held by college coaches: "Now Week 4 every year is going to be the trade deadline, and everyone is going to make decisions. I don't like that part of it. When you commit to a school, when you commit to a team, that's your team, right?" (21) Thus, there is widespread concern with removing restrictions on student-athlete transfers, especially as it pertains to consequences normally associated with professional sports, such as free-agency and trade deadlines. Meanwhile, the student-athletes themselves are hoping to achieve a level of freedom that, in their eyes, would only be fair. One example of a common fairness argument makes the point that "[a] coach can leave whenever he wants. There's no reason a player shouldn't be able to [transfer and be eligible] right away." (22) Another common fairness comparison is to other, non-athlete students: 'You're treating the student-athlete different than everybody else on that campus.... Nothing stops the chemistry major from leaving Gonzaga and going to the University of Washington." (23) And perhaps the most notable equity concern is that some transfer rules apply only to the revenue-generating sports. (24)

The variety of opinions surrounding the transfer rules makes clear that there is no easy solution and the NCAA faces difficulties in shaping these rules. Well-intentioned proposals may have unintended effects that could damage student-athletes, the schools they play for, and college sports as a whole. It is important to lay out the many concerns articulated by college coaches and schools regarding the graduate-transfer rule because it is likely that a softening of the undergraduate-transfer rules would result in the same issues on a broader scale. Thus, the NCAA must inevitably weigh those same complications as it attempts to form the appropriate rules related to student-athlete transfers in Division I athletics, regardless of whether the transferring student-athlete is a graduate or undergraduate student. The issue of transfers is one that the NCAA will have to deal with for the foreseeable future. As student-athletes seek more control over where they play in the interest of fairness and empowerment, and the concerns of a free agency free-for-all continue to be asserted by coaches and administrators, the NCAA must navigate the issue of transfer regulation and revision with great care, thought, and attention to detail.

This Note articulates a normative framework for analyzing NCAA transfer rules, arguing that a balance must be struck between fairness for student-athletes and appropriate restrictions on transfer rules so as to prevent full-on free agency in collegiate athletics. The Note additionally argues that institutional autonomy over academics is a factor the NCAA must consider along with fairness and prevention of free agency. This Note will not wade into the complicated waters of potential antitrust issues with the NCAA, nor discuss the controversial calls for pay-for-play or unionization for student-athletes-instead, this Note will simply take for granted that it is desirable for the NCAA to avoid free agency and to maintain the amateuristic aspects of college sports. Part I will review the basics of the NCAA, lay out the current rules that govern Division I transfers, and discuss the normative structure that will be used in examining specific proposals and outstanding issues related to NCAA transfers. Part II analyzes each of four recent proposals by the NCAA Transfer Working Group to see how well they comport with the normative framework, and discusses the lurking problems surrounding the one-time transfer exception. The Note argues that a focus on the common ground between student-athletes' interest in fairness and college athletics' (assumed) interest...