Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review
Within the past few years, the rights, or lack thereof, of college athletes have received significant media attention. One of those discussions centers on the arguably lopsided nature of the National Letters of Intent (NLI) that many student-athletes sign each year. The NLI is a contract between a student-athlete and a university, in which the student-athlete promises to play a sport at the university in exchange for the university’s promise of financial aid for one year. Although the NLI has been riddled with issues since its creation, the new millennium has seen more complaints, resulting from the increased rate of coaching changes and complications surrounding the requirement that each student under twenty-one years of age obtain a parent’s signature on the NLI. This article discusses the pros, cons, and possible solutions to the numerous issues with the NLI.
How NLIs Work
The NLI was created in 1964 to curb intensive recruiting practices. The Collegiate Commissioners Association (CCA) governs the NLI while the National Collegiate Athletic Association (NCAA) manages its daily operations. The NLI offers protections and advantages to both student-athletes and universities. The student-athlete is guaranteed financial aid for one year, while the university is guaranteed play from the student-athlete for one year. After a student-athlete signs an NLI, other universities are prohibited from recruiting the student-athlete. If a student-athlete breaches the NLI, he or she ineligible to participate in athletics for the following year. The signing process has become a spectacle for the 2% of student-athletes who receive scholarships. However, in recent years, several characteristics of the NLI have sparked debate about its functionality: the parental consent requirement, the lack of negotiations, and the term. In order for the NLI to remain a functional instrument in the recruitment of student-athletes, these three issues need to be addressed and new frameworks need to be adopted to better fit the interests and educational goals of the student-athletes.
The “infancy doctrine,” developed under common law, generally requires a parental signature when an individual under the age of eighteen enters into a contract. The NCAA requires a parent’s signature on the NLI of a student-athlete under the age of twenty-one. There are sensible reasons for the signature requirement. Because parents will likely be financing their student’s education if the student-athlete does not receive any additional aid beyond the first year, this requirement seemingly makes sense, especially because the goal of the NCAA is to further the educational goals of the student-athlete. However, this can lead to parents refusing to sign an NLI due to a university’s location, rivalry status, or any other plausible reason. For example, the father of CeCe Jefferson, a recruit for the University of Florida, refused to sign the NLI for an unstated reason. Thus, the age at which a parent’s signature is required should be lowered to at least eighteen because any other individual can freely contract at that age. Because adults should be able to make decisions independently and free from unwarranted parental restraint, this framework would benefit those traditional student-athletes who are transferring from a two-year institution to a four-year institution, as well as those signing NLIs late in their senior year, since the student-athlete will likely have turned eighteen by that point.
Another possibility is that the signature requirement be abolished entirely with the exception of those student-athletes who are under the age of sixteen when they sign. The “infancy doctrine” was developed to protect innocent children, who lack adequate judgment, from crafty adults who would force them into contracts. With regard to NLIs, there is no actual financial harm to student-athletes who are signing the NLIs as there would be if a minor entered into a contract to purchase a car. Instead, the student is only set to gain from the receipt of financial aid. Thus, recruiters are unable to take advantage of the student-athletes, with the exception of the recruiting techniques currently utilized, so the rationale behind the infancy doctrine is inapplicable here. Therefore, parental consent should only be required for student-athletes who are under the age of eighteen or should be entirely abolished with exceptions.
There is no requirement that student-athletes sign an NLI in order to play college sports. However, students who refrain from signing an NLI risk losing a scholarship due to filled scholarships slots. If a student decides to sign with a school, there is zero negotiation. This means the student-athlete can either take the NLI with its boilerplate language or refuse to sign. While the uniform language is intended to protect the interests of the student-athlete and the school, the practical result is an advantage for the school.
The NLI’s boilerplate language harms student-athletes due to the unequal bargaining power between the parties to the NLI. As a recent example, Roquan Smith verbally agreed to play football for UCLA this spring. On the day he was set to sign the NLI, he received notice that Jeff Ulbrich, the defensive coordinator for UCLA, had joined the Atlanta Falcons’ staff as the linebackers coach. Smith’s main reason for agreeing to play for UCLA was Ulbrich, who heavily recruited Smith. As a result, Smith has verbally committed to play for the University of Georgia, but refused to sign an NLI for fear of another coaching change occurring that would leave him in an awkward position.
The solution to this problem is permitting negotiation of the NLI’s provisions consistent with the general notion of the freedom to contract. The negotiation would reflect the actual intent—why the student-athlete chose to play for the university—aspect, as well as the penalty associated with the breach of the NLI by a student-athlete. The most common reason for breach of an NLI is a coaching change. The relevant NLI provision provides, “I understand I have signed this NLI with the institution and not for a particular sport or coach. If a coach leaves the institution or the sports program, I remain bound by the provisions of this NLI. I understand it is not uncommon for a coach to leave his or her coaching position.” Instead of including this provision, the institution and the student-athlete should be able to negotiate language to reflect the student’s reasoning for attending the university, whether that is academics, location, or coach. This permits the student-athlete to express his or her intent in the NLI, which courts can use in any subsequent lawsuit to determine if a breach has actually occurred.
The current breaching provision of the NLI also needs revision. Currently, it provides in part, “I understand that if I do not attend the institution named in this document for one full academic year and I enroll in another institution participating in the NLI program, I may not compete in intercollegiate athletics until I have completed one full academic year in residence at the latter institution.” This creates an issue for student-athletes who desire to play in a professional league after graduating, since they lose a year of eligibility, which hinders growth of performance at a higher level of play. However, despite the potential loss of millions of dollars in future earnings, courts have consistently held that student-athletes do not have a constitutional right to play college athletics, so they are unable to invalidate this provision on substantive due process grounds. Thus, the student-athlete should be able to negotiate which terms of the NLI are “breaching” terms and the penalties associated with a breach of the terms, such that the student-athlete knows in advance of signing the NLI what any ramifications of signing will be.
The NLI has a one-year term, which means a student is only guaranteed financial aid for one year of enrollment. The one-year term is convenient for universities because it coincides with the school’s budgetary period. Additionally, the student-athlete may underperform or want to transfer after the first year, which leaves room for the university or the student-athlete to part ways.
However, since the NCAA’s stated goal is to further the student’s education, a term of four years would achieve this goal. With a four-year term, a student-athlete would have no concern regarding his or her ability to pay for tuition. Furthermore, the one-year term is inconsistent with other provisions of the NLI. For example, the NLI only applies to student-athletes attending four-year institutions and lasts for four years in the event a student-athlete does not attend a four-year institution. Therefore, the term should be extended to four years. When combined with the negotiable provisions, the student-athlete and university would be able to draft appropriate termination or opt-out clauses so that the parties can part ways if the relationship sours in the first year of enrollment.
Overall, the NLI is losing its credibility quickly and the refusal to sign by Roquan Smith may be the first of many to come in the future. In order to remedy this, the NCAA and institutions participating in the NLI program should make three changes. First, the parental consent requirement should be abolished because the rationale behind “infancy doctrine” is nonexistent here. Second, student-athletes should be permitted to negotiate the terms of the NLI with the university so that the student-athlete and university can express what they hope to achieve with the NLI and what the ramifications of a breach are. Finally, the term of the NLI should be extended to four years to further the student-athlete’s educational goals and to be consistent with the provisions that apply the NLI only to student-athletes attending four-year institutions and the four-year term of the NLI when a student-athlete does not attend a four-year institution.
 Roger Groves, How Parental Responsibility Will Radically Change College Football – Is the Alex Collins National Letter of Intent the Start?, Forbes (Feb. 7, 2013, 4:45 PM) http://www.forbes.com/sites/rogergroves/2013/02/07/how-parental-responsibility-will-radically-change-college-football-is-the-alex-collins-national-letter-of-intent-the-start/.
 See e.g., 2014-2015 FBS Head-Coaching Changes, ESPN, http://espn.go.com/college-football/story/_/id/11885461/football-bowl-subdivision-head-coaching-changes (last visited Mar. 8, 2015); 2013-2014 FBS Head-Coaching Changes, ESPN, http://espn.go.com/college-football/story/_/id/10067570/football-bowl-subdivision-head-coaching-changes (last visited Mar. 8, 2015); Coaching Changes for 2000-2001, ESPN http://espn.go.com/abcsports/bcs/s/2000/0818/691536.html (last visited Mar. 8, 2015). These take into account head-coaching changes only in the Football Bowl Subdivision of the NCAA. In essence, it does not factor other sports, other divisions of the NCAA, and coaching positions in the same program, such as offensive and defensive coordinators.
About the National Letter of Intent (NLI), National Letter of Intent, http://www.nationalletter.org/aboutTheNli/index.html (last visited Mar. 8, 2015) [hereinafter About the NLI].
 See id.
 Basic Penalty, National Letter of Intent, available at http://www.nationalletter.org/nliProvisions/penaltyBasic.html (last visited Mar. 8, 2015).
 Amy Wimmer Schwarb, Signing of the Times, NCAA (Nov. 19, 2014, 2:25 PM), http://www.ncaa.org/champion/signing-times.
 See, e.g., Dodson v. Shrader, 824 S.W.2d 545 (Tenn. 1992).
 Signing the NLI FAQs, National Letter of Intent, available at http://www.nationalletter.org/frequentlyAskedQuestions/signingTheNli.html (last visited Mar. 8, 2015).
 NCAA, Division I Manual, art. 2.9.
 Derek Tyson, CeCe Jefferson Officially a Gator, ESPN.com (Feb. 9, 2015), http://espn.go.com/college-sports/recruiting/football/story/_/id/12300771/cece-jefferson-faxes-loi-florida-gators.
 See Dodson, 824 S.W.2d at 547.
 Universities are limited in the number of scholarships they can award to student-athletes in certain sports. Once those spots are filled, the student-athlete is then responsible for funding his or her own education for at least the following year.
 Andy Staples, Why Prized Recruits Should Refuse to Sign the NLI; More Punt, Pass, & Pork, Sportsillustrated.com (Feb. 10, 2015), http://www.si.com/college-football/2015/02/09/national-letter-intent-punt-pass-pork.
 Id. By not signing the NLI, Smith is not guaranteed the financial aid in the fall.
 See generally id.
 Coaching Changes, National Letter of Intent, available at http://www.nationalletter.org/nliProvisions/coachingChange.html (last visited Mar. 8, 2015).
 Basic Penalty, supra note 8.
 See e.g., NCAA v. Yeo, 171 S.W.3d 863 (Tex. 2005); Bloom v. National Collegiate Athletic Association, 93 P.3d 621 (Colo. App. 2004).
 About the National Letter of Intent (NLI), supra note 3.
 See e.g., Initial Enrollment in Four-Year Institution, National Letter of Intent, http://www.nationalletter.org/nliProvisions/initialEnrollment.html (last visited Mar. 8, 2015); Statute of Limitations, National Letter of Intent, http://www.nationalletter.org/nliProvisions/statuteLimitations.html (last visited Mar. 8, 2015).