The Case for Direct Waivers
OPENING STATEMENTS
A flood of recent legal inquiries underscores a growing problem in college sports: student-athletes are caught in eligibility limbo, unclear about their rights and powerless to advocate for themselves when it matters most. This isn’t new, of course, but the unmistakable upheaval in college sports continues to amplify this issue.
Eligibility, and its many permutations, is the most common reason that so many contact us. (Here’s a primer on some common eligibility questions). The circumstances vary, but every one revolves around a single point: a lack of clarity with little to no support or guidance offered by the institutional leadership, who typically have resigned themselves to defeat to avoid more work. In one notable case this month, a student-athlete was informed by a school’s internally-driven recommendation that she had exhausted eligibility, a mistake we were able to reverse, but a risk that persists for others without dedicated legal counsel. Especially if actions are taken too late.
The crux of the issue lies with the NCAA’s waiver system. Eligibility waivers, whether for hardship, transfer, or academic exceptions, must be submitted not by the athlete but by the institution. Schools weigh waiver requests against their own interests: roster management, competitive advantage, budget, and risk. As they should. But, as a result, schools may deprioritize or refuse waivers that could help athletes reclaim a lost season or transfer to a better environment. This is particularly true if an athlete doesn’t fit into a team’s future plans. And transfer athletes are especially vulnerable, sometimes blocked from play because their old or new program sees no benefit in facilitating the process. What’s clear is that the NCAA and its member institutions have prioritized establishing and following protocols designed to minimize institutional liability, not necessarily maximizing the student-athlete’s human development, growth and prosperity.
Recent litigation has accelerated calls for reform. Diego Pavia’s challenge forced the NCAA to issue a blanket waiver, granting ex-junior college athletes like him an extra year to play at the NCAA level. Rutgers football player Jett Elad and Wisconsin football player Nyzier Fourqurean have successfully used federal court orders to access a fifth season. Tennessee’s Zakai Zeigler dropped his bid seeking a fifth season, but is continuing his eligibility lawsuit against the NCAA.
Legal experts have increasingly criticized the NCAA’s restrictive process. Harvard sports law scholar Peter Carfagna calls the waiver system “arbitrary,” and asserts that without legislative or further court action, change may remain stalled. Athlete coalitions have protested new roster limits and the scope of blanket waivers, urging action that aligns procedural rights with the realities of athlete labor markets and NIL compensation.
This system is not just flawed; it’s fundamentally unjust. Athletes deserve the right to advocate for their own eligibility. When institutions alone decide who gets a second chance or a waiver for extenuating circumstances, outcomes too often turn on arbitrary or self-serving logic rather than fairness or merit. The process is notoriously opaque; similar cases can produce wildly different results, with no external review or transparency.
Legal precedent increasingly supports change. The most recent federal rulings have not only enabled direct athlete compensation but also questioned the very foundation of eligibility caps and school-driven waivers. Change is coming. But for now, the best protection is proactive legal advocacy and demands for procedural reform.
For clients and families, understand: the waiver process is fraught with risk and uncertainty. Schools are not neutral gatekeepers. Student-athletes must be vigilant about their status and seek professional guidance. Until the NCAA aligns eligibility control with athlete rights, injustice and missed opportunities will persist.
EXHIBIT A
I touched on this briefly in a recent Motion to Disrupt, but it bears repeating: the transgender issue in athletics is far from resolved and isn’t going away. Most recently, three Santa Rosa women’s volleyball players filed a Title IX complaint, claiming their college endangered female athletes by allowing a transgender teammate to compete.
Transgender athletes remain a flashpoint for legal battles over fairness, safety, and rights – where the friction stems from a clash between federal and state law, and shifting interpretations of Title IX depending on who’s in the White House. Some states and athletic associations adopt rules focused on inclusion and protections for transgender athletes, while federal guidance swings back and forth, leaving schools, athletes, and governing bodies caught in constant legal uncertainty.
This isn’t simply a question of right or wrong. It’s about the lack of a clear, consistent, and fair framework for handling transgender participation in sports. Female athletes raise concerns about safety and fairness. Transgender athletes raise concerns about inclusion and opportunity. Schools are left navigating lawsuits, compliance mandates, and political pressure from both sides.
Until there is alignment, or at least a sustainable compromise, we can expect more lawsuits, more policy whiplash, and more confusion for athletes at every level. What’s missing is a deliberate, data-driven, and empathetic effort to create paths forward that balance fairness and safety, rather than simply litigating the issue into an endless stalemate.
EXHIBIT B
Wherever you stand on the authenticity of OneTeam’s pushback on EA Sports’ new College Football 26 contract terms, it reflects a deeper fight over fair value in the NIL economy.
EA is offering more money to athletes, but the same sticking points remain: no individual negotiation, no royalties, and opt-outs that aren’t readily apparent. That’s a problem. Royalties are standard when likenesses drive ongoing sales, and banning opt-outs undermines consent.
How this could play out:
Player leverage: Athletes collectively resist, forcing EA back to the table to preserve the game’s authenticity.
Legal action: Lawyers argue the “all-in, no royalties, no opt-out” model constitutes coercion or unfair restraint on athletes’ rights, opening the door for new legal challenges.
Advocacy choices: If OneTeam refuses, it must decide whether to return, repurpose, or donate related funds – each sends a different signal.
Fracture risk: Continued disagreement could push athletes to seek new representation or organize independently.
This isn’t just about whether $1,500 is fair. It’s about whether athletes accept one-time checks while companies profit indefinitely, or push for royalties and true bargaining power.
ON THE DOCKET
It appears that the SCORE Act won’t be headed to a House vote next week, and it will be interesting to see what changes are made before it does. As written, it protects institutions – not student-athletes – and threatens the rights athletes have fought to secure. Backed by the NCAA and power conferences, the bill could be amended to address these flaws, but lawmakers must decide whether to prioritize the system or the individuals it’s meant to serve. As I’ve previously stressed, let’s hope they do the latter.
FOOTNOTES
$19 billion.
Combined estimated annual revenue for college football and men’s basketball (via The Economist).
