NCAA Fears ‘Unchecked Free Agency’ After Judge’s Transfer Ruling
In a move the NCAA warns will trigger a “system of perpetual and unchecked free agency” in Division I college sports, U.S. District Judge John Preston Bailey on Wednesday granted a 14-day temporary restraining order that—for now—prohibits the NCAA from enforcing a rule that restricts athletes transferring from their second college to their third college.
Under current NCAA rules, athletes can transfer once without cause, provided they’re admitted by their second college. However, should they transfer for a second time, they must either defer their eligibility to play for one year or obtain a waiver.
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A college athlete transferring from their second college to their third college is a rare occurrence. NCAA data indicates that over the past five years, just 0.17% of college athletes transferred more than once and sought immediate eligibility to play. That percentage might climb, however, if restrictions are permanently lifted.
According to the attorneys general of Ohio, Colorado, Illinois, New York, North Carolina, Tennessee and West Virginia, the restriction on a second transfer runs afoul of antitrust law. They accuse the NCAA and member schools and conferences of conspiring to “harm” college athletes’ opportunities and “degrade the quality” of DI sports consumed by the public and fans.
The transfer rule, the AGs claim, places would-be second (or third etc.) time transfers at a “competitive disadvantage” since schools will be less interested in recruiting them if they have to sit out an academic year. This arrangement is depicted as “unjustifiably disadvantaging” college athletes and effectively “limiting their choices” of schools they could attend.
The AGs filed their complaint, with an accompanying request for a temporary restraining order and preliminary injunction, on Dec. 7 in a West Virginia federal district court. Judge Bailey held a hearing on Wednesday to assess arguments by both sides.
In court documents, the NCAA has sharply rebuked the AG’s legal arguments as endangering college athletes’ academic interests, disturbing college athletics’ competitive balance and embodying government overreach into a private association.
The AGs, the NCAA insists, seek to “rewrite the rule of a private association” to effect “virtually unlimited” transferring in college sports and offer “virtually no facts or legal authority to support their proposed change.”
The NCAA maintains that the AGs are misreading the U.S. Supreme Court’s 2021 ruling in NCAA v. Alston. The ruling concerned a narrow and unrelated issue: NCAA limitations on education- related benefits (not athletics, transfers or NIL). As the NCAA tells it, the AGs view Alston as their “central pillar” of precedent despite Alston “in no way” relating to transfers.
The NCAA maintains that its restriction on repeat transfers is intended to help athletes “acclimate to their new school and focus on education, [thereby] furthering their progress toward a degree.” The association also chastises the seven attorneys general for believing they “should decide the rules governing college athletics” instead of “the schools, professors, chancellors, counselors, and student-athletes that comprise [the NCAA].” The NCAA also argues that multiple transfers can cause significant team “disruption” and undermine “team continuity and predictability.”
On X, West Virginia Attorney General Patrick Morrisey posted about University of West Virginia point guard RaeQuan Battle, who transferred from Montana State after previously playing two seasons at the University of Washington. The NCAA denied Battle a waiver to play in 2023-24 but, given the restraining order, he is now eligible.
“Very pleased our state-based coalition was able to achieve a temporary restraining order against the NCAA’s transfer rule,” Morrisey wrote. “Big win for RaeQuan Battle!”
Judge Bailey has scheduled a hearing on Dec. 27 to further review the dispute and a potential preliminary injunction, which could last for months and until the court determines the merits of the case. The NCAA could also appeal to the U.S. Court of Appeals for the Fourth Circuit.
If an athlete or school relies on the temporary restraining order only to see it later terminated and the NCAA prevail, the NCAA can’t punish them for it but could demand they reverse course.
When USC wide receiver Mike Williams relied on U.S. District Judge Shira Scheindlin granting summary judgment to Ohio State running back Maurice Clarett in his antitrust lawsuit against the NFL over the league’s eligibility rule in 2004 and signed with an agent in preparation for entering the 2004 NFL draft, the NCAA later denied him a chance to return to school after the U.S. Court of Appeals for the Second Circuit reversed Scheindlin’s ruling. As a disclosure, I was an attorney on the legal team representing Clarett.
