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How the college football union could end the NCAA's dumbest rule

You know how college athletes have to sit out a year when changing schools, and how that serves no one besides coaches hoping to deter players from leaving? A player union could kill that rule without even trying to.

Former Northwestern quarterback Kain Colter, a leader of the player unionization effort.
Former Northwestern quarterback Kain Colter, a leader of the player unionization effort.
David Banks

If you love chaos, this is a great time to be a college football fan.

No-huddle, hurry-up offenses are breaking records left and right, confounding defensive coaches all along the way. Teams are moving between conferences, shredding all manner of long-standing rivalries. College football has never been more popular, and yet elite programs struggle to convince students to turn up for games. Those same power programs are lobbying for the right to pay their players, despite the opposition of lower-revenue athletic departments.

A traditionalist looks at the landscape and says "I don't know what to make of that." An anarchist looks at college football, smiles, and says "the only sensible way to live in this world is without rules."

And that's before we get to the really far-reaching development of recent weeks, which is Northwestern football players petitioning the National Labor Relations Board for the right to unionize. The argument articulated by former quarterback Kain Colter in front of the NLRB is that college football players are really more employees than students, that they have the demands of a full-time job, that they are subject to control by their coaches, and that their studies are just a sideshow to the main purpose of generating revenue for their schools. If the NLRB agrees with Colter and his fellow players, then it will conclude that Northwestern players (and possibly all major college athletes) are employees and therefore that they have the right to unionize.

The concept of the student-athlete was created by the NCAA as a way to avoid worker's compensation obligations to college football players. Destroy that construct and you open the door to findings that players are protected by worker's compensation laws, as well as a host of additional federal or state laws that cover employees, but not independent contractors or students.

How the transfer rule is at risk

For instance, you have state laws regarding non-compete agreements. These vary wildly. Some states will enforce just about anything. Other states have statutes that prohibit non-compete restrictions altogether, except in limited situations. California achieves this result in one sentence: "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."

The key piece of that sentence -- and the one that creates all sorts of interesting possibilities in the event that the NLRB finds that college football players are employees -- is "engaging in a lawful profession, trade, or business." A student would not be covered by this provision, but Colter was not describing a normal student in his testimony. Rather, he created the image of a full-time employee, one who follows instructions in a revenue-generating position rather than someone pondering the wonders of Homer or differential equations on a college green.

If college football players are employees, then California's prohibition on non-compete restrictions likely applies. Oklahoma and Nebraska, two other states containing schools that have had notable football teams from time to time in the recent past, also have prohibitions on non-compete provisions as unlawful restraints on trade. Louisiana requires that a non-compete restriction list specific parishes to be enforceable. Wisconsin and Arkansas will permit non-compete restrictions, but their law is generally hostile to the concept.

The employee non-compete -- the one that is prohibited in several states -- is less restrictive than the NCAA's.

And that's where the NCAA's rules on transfers enter the picture. A typical employee non-compete restriction tells a sales representative that he can't sell on behalf of a competing business within a certain territory for a year after leaving his current employer. The NCAA's rules on transfers tell FBS football players that they cannot move to another FBS program and play for a year after the transfer. Do you see a difference?

Yes, the employee non-compete -- the one that is prohibited in several states and faces an uphill battle in others -- is less restrictive than the NCAA's system-wide restriction. And that's before we get to the host of ancillary restrictions that the NCAA piles onto players considering a transfer:

A player must receive a written permission-to-contact letter from his current coach. He must have spent a full year in "academic residence" -- i.e., attending classes as a full-time, 12-credit-hours-or-insert-your-school's-equivalency student -- before he is eligible to get back on the court at his new school. There are "4-4" transfers and "2-4" transfers and different rules therein; there are issues involving full, partial, or non-qualifying academic status; and there are waivers and appeals you can make based on specific circumstances that can change the preexisting requirements, just like that.

In short, if college football players are employees, then there is a host of states where transferring players can have the NCAA's one-year waiting period invalidated.

How would this work?

Imagine, if you will, an Alabama football player who has decided that he is tired of listening to Nick Saban. Assume for the sake of argument that you are not one of the players whom Saban wants or needs to excise. Normally, you would have to wait a year before playing elsewhere. Saban would also have the ability to forbid you from transferring to certain schools, as coaches like Oklahoma State's Mike Gundy have done to quite the extent.

But there's nothing in the NCAA's transfer rule that lists specific parishes, so maybe a Louisiana judge is going to set you free! Or perhaps that non-compete restriction does not pass muster under Arkansas law, and Bret Bielema is whispering sweet nothings in your ear. Why sit out a year when an Arkansas court will issue an injunction and a declaratory judgment saying that you can play now?

In this new world where non-compete law applies to college football players, schools in anti-non-compete states would have a competitive advantage. The California schools, for example, could take immediately eligible transfers in a way that some of their Pac-12 rivals could not. Likewise, Arkansas and LSU would have advantages in the SEC over teams in other states. Georgia fans would be ruing their state's 2011 move from an anti-non-compete state to one that is middle-of-the-road. (Mark Richt has lost control of the Georgia legislature!)

Or, nothing could happen. The major challenge for this legal theory is the fact that our imaginary player isn't really signing a non-compete restriction with his Brave New World employer, the University of Alabama. Rather, he is subject to an organizational rule imposed by the NCAA. In a normal non-compete fight, the former employer tries to enforce the agreement, while the departing employee and the new employer try to break it. In the NCAA fun house, the schools are passive participants while the NCAA enforces the rules.

For instance, the NCAA sets eligibility requirements and would therefore have the power to sanction LSU or Arkansas for playing an ineligible player, i.e. one who did not sit out a year as required. Would a state court judge take a step beyond issuing an order governing the employer (Alabama, in our example) and also enjoin a higher-level organization (read: the NCAA)? We won't know until someone tries.

The NCAA is currently involved in a fierce struggle in a California court to defend one of its cherished rules: the restrictions on a player profiting from his likeness. If the NLRB finds that college football players are employees, then the NCAA could find itself back in California trying to defend another of the pillars of its rule book: the restrictions requiring that most transferring players sit out for a year.