Lawsuit aims to eliminate all NCAA transfer restrictions, while some are pushing for a stricter policy

Within the U.S. District Court of the Northern District of West Virginia and before presiding judge John P. Bailey, the NCAA’s transfer policy is at risk of being canceled.

A judge’s ruling on Wednesday at 10 a.m. could at least temporarily lift the association’s rules around second-time transfers, opening a path for athletes who have had waivers denied or whose waiver is outstanding to play immediately at their new schools. The hearing is the first step in a lawsuit filed last week by seven states that looks to eliminate the NCAA’s transfer rules.

The lawsuit is another example of a recent trend: Member schools aggressively pushing back on the very same rules that they helped create and pass. In this case, attorney generals from seven states are suing the NCAA at least partially over the organization denying a high-profile athlete at one of their state schools from transferring a second time and playing immediately.

The latest legal challenge against the organization focuses, this time, not on athlete compensation like many of the other active cases, but on athlete eligibility — it, too, a long-running criticism of the organization and its membership from… its own members or those connected to its own members.

“We are the NCAA,” said Jon Steinbrecher, commissioner of the MAC.

Unrest over the NCAA’s transfer policy — specifically its waiver process — has not only resulted in a lawsuit. The situation has those in important positions within the association contemplating a different path.

While the lawsuit in West Virginia seeks to give athletes the ability to transfer an unlimited amount of times and retain their immediate eligibility, some believe that it’s time to make rules more strict by getting rid of the waiver process.

“I want to propose eliminating waivers,” Steinbrecher told Yahoo Sports in an interview last week. “I am teeing it up for the DI Council.”

He’s got support, too. Under such a proposal, athletes would not have the ability to seek a waiver to play immediately at their new school if they’ve previously transferred. They'd have to sit out their first year at the new school.

“We’ve got to somehow figure out how to get out of the waiver process. That’s one way to do it,” said Baylor president Linda Livingstone, one of the most powerful people in college athletics who serves on the Division I Board of Directors.

The backlash over the waiver process took center stage this fall as the NCAA denied multiple athletes transferring for a second time from playing immediately at their new schools — a dynamic that is the focus of this new lawsuit.

High-profile cases shine light on waiver system

In 2021, under pressure from state and federal lawmakers as well as the courts, the NCAA made possible for football and basketball players to transfer once and play immediately at their new schools. The organization, through a membership vote, lifted the rule that made transferring athletes ineligible the first year at their new school.

Those transferring a second time must be granted a waiver to play immediately. That’s where the real problems begin.

The association has recently tightened its guidelines on granting such waivers. At one point, the organization offered athletes 12 avenues in which to be granted eligibility. That number has been modified to four.

As of Nov. 30, the NCAA says that 175 undergraduates filed waivers to play immediately in this academic year (2023-24). One-third of those waivers were submitted in men’s basketball and another 25% from FBS and FCS players. Waivers were granted in 25% of cases, the organization says.

Several high-profile waiver cases — most of them denials — made national news this year, some of which are closely tied to schools in states that filed the latest antitrust suit. Those states include West Virginia, North Carolina, Ohio, Colorado, Illinois, New York and Tennessee.

Waiver denials have often led to skewering public comments directed at the NCAA from various sources: school administrators and coaches; state attorney generals; players themselves.

In North Carolina, UNC receiver Tez Walker was initially denied a waiver as a multi-time transfer before the NCAA reversed the decision after, it said, “new information” came to light. One of the lead characters involved in the lawsuit, North Carolina attorney general Josh Stein, threatened legal action against the NCAA over the Walker case earlier this fall.

In West Virginia, Mountaineers basketball player RaeQuan Battle, transferring from Montana State, had his waiver denied, triggering a rebuke from the state’s attorney general. In Colorado earlier this year, Buffaloes football head coach Deion Sanders ripped the NCAA for denying eligibility to transferring offensive lineman Tyler Brown.

“Some things just don’t make sense,” Sanders said. “You say you really care about mental health, but when you have someone really dealing with mental health, there’s a problem. Then, ostracizing him and not allowing him to do what he’s blessed and gifted to do and the thing that brings him peace, that’s trying for a young man.”

For those arguing against waiver denials, the NCAA’s message has been quite clear: The member schools created the rules and waiver guidelines and can change them if they’d like.

Well, maybe that’s on the way.

However, eliminating the waiver process could result in more legal challenges.

“We’re going to get challenged no matter what we do, as we’re seeing,” said Steinbrecher, one of the original members of the NCAA transfer working group created in 2017 and a member of the Division I Council. “I think it’s crazy we now have attorney generals and senators weighing in on stuff. Come on.

“We need to manage our own business. That’s how associations work. If you don’t like the rule, then change something. That’s on us. Do we have a rule problem or transfer problem? I think we have a waiver problem.”

Complicated waiver process leads to problems

The waiver process is convoluted, too subjective and inconsistent, leading school administrators say. Few blame the people making these decisions. Most blame the system from which these decisions are made.

The waiver process is the focus of the latest lawsuit, Stein told The Associated Press in an interview last week. Stein suggested that, if an athlete is in good academic standing and on track to graduate, he or she should be able to transfer and play immediately an unlimited number of times.

“That is absolutely the American Way,” he said. “And that’s a requirement of federal law. The rule offends that requirement.”

The case shines a light on the intricacies of a complicated waiver process.

“The waiver process has been unbelievably challenging,” Livingstone said. “It’s really difficult to manage waivers.”

Initially, waivers are managed by a team of 12 NCAA staff members at the organization’s headquarters in Indianapolis, many of whom are former college athletes themselves. A team member is assigned to each waiver as a case manager.

Case managers communicate with an athlete’s new and old school to obtain documentation to determine if an athlete meets any of the four criteria to be granted a waiver: (1) physical illness or injury; (2) mental health issue; (3) exigent circumstance such as being the victim of an on-campus crime; (4) educational disability.

Case managers consult with a panel of mental health professionals who volunteer their time to assist in uncovering what is the most common claim from athletes wishing to play immediately: mental health. An athlete’s previous school gets 10 days to provide to the case manager statements and comments on the situation.

Case managers meet several times a week to review their cases and make a determination. If the team denies a waiver, a school has the option to appeal to the DI Committee for Legislative Relief, which is made up of administrators from member schools. It is members of that committee who received threats over the Walker situation earlier this fall.

A decision from the committee is final, although a school is given a 30-day window in which they can present “new information” to potentially reopen the case.

Other modifications are coming to the transfer policy as it relates to post-graduate transfers. Those athletes who have graduated can, for now, transfer a second time and play immediately. However, in the future, the NCAA made a modification that would require a waiver if post-graduate athletes have already used their one-time transfer as undergraduates.

The waiver process can take time. Over the last three years, waiver requests have increased significantly. The average time for a waiver to be granted or denied has doubled, from about 20 to about 40 days, the organization said.

The latest modifications to the transfer waiver guidelines were built around the mental health issue, Livingstone said. That makes the issue more complex.

“It’s really difficult to judge that and be fair about it,” she said. “Should we be making determinations about the significance of mental health issues?”

The transfer portal is flush with players.

More than 500 FBS players entered the portal last Monday on its first day. That number is now at nearly 1,000, according to The Athletic. As the early signing period approaches next week, the transfer portal market is in overdrive as schools jockey for veteran players, specifically quarterbacks. Experienced quarterbacks are fetching annual NIL payments of $1 to $2 million, according to Nebraska coach Matt Rhule.

Meanwhile, in the background, college sports leaders continue to contemplate rules around transferring as the very rule itself is in the crosshairs of a hearing Wednesday in West Virginia.

“Go back four or five years and there was a cry [over the old rule] and now you hear it’s free agency and people moving all over the place,” Steinbrecher. “Well, everybody asked for it [the one-time transfer]. We’ve got a rule that I would argue is defensible educationally. We can go about our business or change the rule or get rid of the rule.

“Go back to the NCAA before [president] Myles Brand,” Steinbrecher continued. “There were no waivers and the NCAA was getting beat up for being cold and heartless. So Myles, well-intentioned, gave waivers. But how you discern between this and that is virtually impossible and it causes another set of issues.”