State Supreme Court Justice Believes NCAA Transfer Restrictions Violate Antitrust Law

The NCAA has long faced criticism for its treatment, or lack thereof, of student-athletes regarding the right to be compensated for the value they bring in financially, and now, the organization is being accused of another potential violation with legal implications.

Robert Orr, a lawyer who served as a Justice in the North Carolina Supreme Court from 1994 to 2004, and Marc Edelman, a law professor specializing in sports and anti-trust law, both believe the NCAA’s current transfer restrictions violate antitrust law.

The restriction they’re specifically referring to is the one that doesn’t allow student-athletes to transfer schools and play immediately the following season.

The NCAA has loosened its transfer restrictions in recent years, and student-athletes can change schools without sitting out a season provided they do so within the given window, but there is also strict criteria that need to be met if a student-athlete wants to transfer for a second time during their collegiate career.

The recent case of football player Tez Walker brought this to light, as the NCAA denied him the ability to seamlessly transfer to UNC, his second transfer after starting out at NC Central and then moving to Kent State. Walker was denied the request despite claiming that he only transferred out of NC Central because the pandemic canceled the season, and his move to UNC was for mental health reasons so he could be closer to home and his grandmother.

Orr wrote an op-ed where he says that Edelman told local sports host Adam Gold that the restriction violates antitrust law, and he tends to agree, adding an important second thought.

“After all, it’s the collective power of the NCAA and those 1200 institutions who have imposed punitive limitations on these student-athletes by limiting their ability to transfer,” wrote Orr.

“Of course, these limitations apply to absolutely no one else who walks the campus halls or treads on the sports fields of the universities. Administrators, coaches, professors, other students, literally everybody, can jump to a new school with no punitive limitation – except students wanting to play college sports governed by the NCAA.

“As much as athletes transferring may irritate the schools and fans, there is a fundamental right to do so without any sort of punishment or limitation. Edelman is right, in my opinion, and the NCAA policy is an anti-trust violation but even more importantly it is a fundamental failure to look out for the best interest of students.”

The fact that the NCAA is likely in violation of antitrust law in this regard is another reminder that collegiate athletics have existed and thrived in an ecosystem that doesn’t make sense when applied to traditional American rules of capitalism, and the industry is running headlong into a pinch-point where nothing short of an act of Congress will provide them immunity. That is immunity, by the way, which other professional sports have already been granted. The path we’re headed down is one where collegiate athletes will now be governed by contracts with terms and conditions, ones that treat the athletes as adults and not as the ‘basically kids’ that we’re often told they are, and will come with new responsibilities in addition to their benefits.

If mental health is cited as a reason for a student transferring to a second school, the NCAA’s new criteria require the school to provide “evidence the student-athlete experienced impaired daily function at the previous institution.”

Orr continues: “Secondly, the NCAA’s new policy on waiver of the transfer limitation based on a mental health condition, is both unreasonable and extreme in its scope.

“We, as a society, have become far more acutely aware of the subtleties and scope of mental health issues particularly in our younger population. The NCAA’s PR effort to show their concerns for student-athlete mental health issues belies the reality of their waiver standards for mental health reasons.”

The NCAA rules regarding a mental health transfer, which Walker was attempting, says: “Applicant institution must provide evidence the student-athlete’s impaired daily function was caused by mental health challenges and why those mental health challenges necessitate transfer to applicant-institution.”

In the case of Walker, UNC failed in its attempt to prove as such.

“The obvious takeaway from this burdensome waiver standard for mental health issues, is that the NCAA and its member institutions don’t really want players transferring because of mental health reasons unless the mental health issues are so extreme that the player would be of no use to the original school’s athletic endeavors,” wrote Orr.

Following the NCAA’s ruling that Walker couldn’t transfer, UNC coach Mack Brown blasted the decision:

“I don’t know that I’ve ever been more disappointed in a person, a group of people, or an institution than I am with the NCAA right now,” said Brown. “It’s clear that the NCAA is about process and it couldn’t care less about the young people it’s supposed to be supporting. Plain and simple, the NCAA has failed Tez and his family and I’ve lost all faith in its ability to lead and govern our sport.”

The NCAA responded with a lengthy statement which had the following closing paragraph:

“The DI Board is troubled by the public remarks made last week by some of the University of North Carolina leadership. Those comments directly contradict what we and our fellow Division I members and coaches called for vociferously – including UNC’s own football coach. We are a membership organization, and rather than pursue a public relations campaign that can contribute to a charged environment for our peers who volunteer on committees, we encourage members to use established and agreed upon procedures to voice concerns and propose and adopt rule or policy changes if they are dissatisfied.”

Read the full op-ed from Orr here.