To Sign Or Not To Sign, That Is The Question

National signing day for football is quickly approaching. Most top high school players will sign the National Letter of Intent (NLI), a voluntary program now administered by the NCAA, without question. Marc Isenberg has been arguing that the NLI should either be abolished or rewritten and has put together a piece for SportsAgentBlog.com, seen below.

National Signing Day has become a national holiday for college football coaches, players and especially fans.  Recruiting is big business as hope springs eternal. Finally, the process ends and the celebration begins. But first athletes must sign the National Letter of Intent, a horribly one-sided agreement that binds player to the school.

Most top high school players will sign the National Letter of Intent (NLI) without question. After all, this is what to athletes do on National Signing Day. They don’t read the fine print. They don’t consult attorneys. They just sign on the dotted line, put on the school cap and smile for the cameras.  I have argued that the NLI should either be abolished or, at the least, rewritten.

Background of the National Letter of Intent

The National Letter of Intent (NLI) is an agreement that heavily favors athletic departments over recruits. Many lawyers believe the NLI is what can legally be defined as a “contract of adhesion,” which is “a standard-form contract prepared by one party, to be signed by the party in a weaker position…who adheres to the contract with little choice about the terms.” Technically, the NLI is a voluntary program, but unless an athlete is a superstar, he or she does not have market power to dictate terms of enrollment. Sign on the dotted line or risk losing the scholarship offer.

The NLI program was founded in 1964. From 1995 through 2006, it was administered by the Southeastern Conference. From the NLI’s website: “From 1964 to 1973, the NLI rules were very specific, with little flexibility provided to meet the needs of a particular sport…student-athletes failing to fulfill the obligations of an NLI were charged with the loss of two seasons of eligibility in all sports, and few appeals to the rules were ever considered.” From the athlete’s perspective, the NLI is a bad deal today. And 35 years ago it was ever worse.

An interesting dimension of the NLI is the fact that it is written in first-person singular (“I understand that if I do not attend the institution named in this document for one full academic year…I may not represent the latter institution in intercollegiate athletics competition until I have completed one full academic year in residence at the latter institution…”). First person seems odd because this document was crafted by-and clearly represents the interests of-athletic directors and coaches, rather than the athletes who must abide by the NLI’s onerous terms, even if they later have misgivings or outright regret about their decision to sign it.

In 2001, Dan Wetzel of Yahoo! Sports, then writing for CBS Sportsline, provided an excellent analysis of the NLI. As Wetzel writes, “What is thought to be guaranteed really isn’t. What people believe it represents, it doesn’t. What is meant to be a celebration, should really be a final chance for someone to closely read it.” Sandy Atkins, then assistant director of the NLI, told Wetzel, “The prospective student-athlete does not have to sign the NLI. The prospective student-athlete chooses to sign it.” That’s nice…blame the victim. The notion that the NLI program is voluntary is an absolute crock. It is “voluntary” for only the cream of the recruiting crop. In 2007, the NCAA took over administration of the NLI. Certainly, the more “student-athlete friendly” NCAA would bring the NLI into the 21st Century. But Dr. Brand, talking like a commissioner representing a group of professional sports owners, said, “We’re just there to reconcile the books. We send out the letters, we collect the information and we turn it over to the schools. So we’re doing the paperwork, we’re not running it.” When it comes to the NCAA, the buck
stops nowhere. Sports Illustrated writer and CBS college basketball studio analyst Seth Davis also rails against the NLI. He writes:

“When you inform your future employer, they say they are thrilled. Then they ask you to sign a contract. You are told that you will not be able to negotiate, even if you find the provisions overly restrictive. Nor has the document been collectively bargained by a union to which you belong. What’s more, this contract is completely voluntary — you can still have the job even if you don’t sign it. But if you sign and something big changes (say, your company gets into legal trouble or the boss you
thought you were going to work for leaves), you can’t get out of the deal unless the company wants to let you out of it. Would you sign? Of course you wouldn’t.”

The NLI guarantees a player a grant-in-aid (athletic scholarship), but provides athletic departments with the ability to wiggle out of their commitment (the NLI is subject to the athlete being admitted into the university). Provision No. 19 of the NLI states that players agree they are signing with the school, not the individual sports program, even if the actual recruiting often reflects the opposite. It is always hoped that athletes factor the school into their decisions, but every dollar-or thousand-an athletic department invests to sign a player signals just the opposite.

Some suggest schools are providing more releases today than in the past, especially after a coaching change occurs. However, for players who want out of the NLI, they remain at the mercy of the school and the new coach.  Wetzel’s article quotes several experts. Michael Lee, a partner at Amberg, Firestone & Lee, a firm specializing in the union side of labor law, says this about the NLI:

“A contract is usually, ‘I give you something, you give me something,’ If there is not mutual consideration, it cannot be a contract. In this case, the individual student doesn’t get anything. This is essentially a one-sided pledge…[the NLI is] an example of when two parties of extremely unequal bargaining power, which happens between a major public university and a high school kid, come together. The powerful side often takes advantage of the situation.”

Top basketball and baseball agent Arn Tellem:

“Clearly, this is a one-sided document in favor of the institutions. It requires a one-way commitment from the player and not a mutual commitment from the school. There is no commitment to even admit the player to the school.”

Dan Wetzel concluded, “The basic advice for any student or parent about to sign a NLI is to be cautious and to contact the school and explore other options, including retaining an attorney to draft your agreement between recruit and school.” In reality, one athlete will not change the system. We need dozens of athletes, parents and the media talking about it. Better yet, we need top college prospects to threaten to not sign the Letter…at least not in its current form. If I had the opportunity to negotiate on behalf of student-athletes, here’s what I would ask to change:

• Get rid of the first-person singular. This is an agreement between two parties with obligations on both sides. It should not be called the National Letter of Intent, but something like the National Student-Athlete Agreement.
• If a player wants to sign with a particular school, he can make his commitment subject to two coaches that he designates remaining on staff for his freshman year (e.g., the head coach and the coach most responsible for his recruitment).
• If a player decides he or she wants to attend another institution due to a coaching change, he may do so without strings attached (e.g., a release stipulating that a player may not attend a specific school).
• If a player is offered a scholarship, but is subsequently not admitted as a student, that program would lose a scholarship for one year. The program would also be required to donate the cost of that lost scholarship to the school’s general scholarship fund earmarked for truly deserving students. (Wouldn’t that make coaches think twice about offering a scholarship to an at-risk student?)
• If a player who signed an NLI is found guilty of a felony crime, the athletic department and school make revoke the scholarship without penalty.

What do you think? Let me know.

Marc Isenberg, an advocate for athletes, is the author of “Money Players: A Guide to Success in Sports, Business & Life for Current and Future Pro Athletes.” He also writes the MoneyPlayersBlog.com. He can be reached at marc.isenberg@gmail.com