When Reform Leaves Athletes With Nowhere to Turn

Written By Todd Graff

OPENING STATEMENTS

The NCAA had a chance to fix a broken waiver system. Instead, it eliminated the safety net entirely and left injured athletes with nowhere to go.

While so much time, money and words have been focused in recent weeks on the NCAA’s implementation and court losses of its new 5-in-5 eligibility rules, what’s been overlooked is not what it added but what it eliminated. As such, this is nothing like reform: rather abandonment, and exactly the kind of unilateral decision-making that keeps landing the organization in court.

And we think the NCAA owes it to college athletes to revise the policy.

On June 23, the Division I Cabinet unanimously approved its new age-based eligibility model giving athletes five years to compete, with the clock starting at first full-time enrollment or the year after an athlete turns 19. Division II followed in early August. In the process, the NCAA wiped out medical hardship waivers, extension-of-eligibility waivers, season-of-competition waivers, athletics activity waivers, and delayed-enrollment waivers. What is left: exceptions for pregnancy, active-duty military service, and religious missions. Nothing for a torn ACL. Nothing for a career-threatening illness. Nothing for a family emergency that pulls a student off campus for a semester.

Our phones have not stopped ringing since the vote. Parents are calling confused about injuries in fall camp. Athletes aren’t sure what age-based eligibility means for someone who already redshirted. Compliance officers are calling to ask whether paperwork filed in June still counts. Almost none of them knew a deadline existed until it had already passed.

Hundreds of Division I athletes suffer season-ending injuries every year, and starting this fall, every one of them loses that season with no process to get it back. That has never happened before in the modern era of college sports. Here’s why injury and hardship waivers need to be reinstituted:

  • Injury is not a choice. Athletes control effort and preparation, not the moment a knee gives out or a concussion protocol ends a season.

  • The clock shouldn't outrun the recovery. Rehab timelines don't bend to fit an arbitrary five-year window, and eligibility rules shouldn't pretend otherwise. Just consider a fall athlete who tears an ACL this month; a long recovery period likely eliminates most or all of two seasons.

  • Life circumstances don't pause for a rulebook. Illness, family emergencies, and other hardships are exactly what the old waiver system was built to accommodate.

  • The NCAA’s new rules are boxing athletes in from both sides. Rosters are already being reshuffled as coaches add back Class of 2022 players with newly restored eligibility, pushing other athletes off teams after the camps have begun and with nowhere to turn. While anyone injured after the portal closes (i.e., spring practice) has no way to transfer (especially as the NCAA seeks to crack down on “ghost transfers,” no waiver to file, and no choice but to sit out a season for something they never did.

  • It’s in the NCAA’s best interests. Courts have already shown a clear willingness to protect athletes' NIL opportunities across a full five years, granting the Class of 2022 a fifth season on exactly that reasoning. Ignoring medical hardship is the next wave of lawsuits waiting to happen.

The NCAA needs a process for athletes whose legitimate hardship claims went unfiled through no fault of their own. We are not asking for a return to the old, cluttered waiver system. We are asking for a narrow safety valve so an 18-year-old with a blown-out knee doesn't lose a year of his life because a compliance office was buried in summer paperwork it never asked to handle. If the NCAA won't build that mechanism voluntarily, we will take this fight to court on behalf of the athletes it failed.

None of this is surprising, because the NCAA has a long record of getting the big calls wrong until a judge forces its hand. O'Bannon v. NCAA found the association profiting off athletes’ names and likenesses while paying them nothing, a case that fed directly into the Supreme Court's unanimous 2021 ruling in NCAA v. Alston striking down its compensation limits. That cascaded into House, Hubbard, and Carter settlements, which cost the NCAA and its conferences more than $2.5 billion and amounted to an admission that amateurism rules had illegally suppressed athlete pay for decades. NIL implementation was similarly reactive, driven by state legislatures and lawsuits rather than the NCAA's own judgment.

What remains ironic in all of this is that an association that depends entirely on athletes’ labor keeps making decisions that put athletes at risk. Unfortunately, athletes have no real seat at the table when it happens.

EXHIBIT A

As the Protect College Sports Act gets pushed until next month, Sens. Chris Murphy and Cory Booker are zeroing in on one of the most important, and too often underplayed, questions in college athletics: whether athletes will have a meaningful voice in rules governing their labor, compensation and mobility. Their opposition to the Protect College Sports Act is not simply about NIL limits or an NCAA antitrust exemption. It is about the representation that we and others continue to harp on. Players sit at the center of multi-billion-dollar enterprises, yet Congress is considering legislation that could further constrain their leverage without requiring their input. Any durable federal solution must include athletes at the table, not merely treat them as the subject of the conversation.

EXHIBIT B

The financials from Georgia are quite revealing within the current landscape. While college athletics’ new compensation model is routinely cast as a financial crisis, the rest of the enterprise continues to expand unchecked. Georgia’s athletic payroll rose 6.3% year over year to nearly $67 million; non-clerical staff grew 5%, and the number of employees earning at least $500,000 increased from 16 to 19. While the Protect College Sports Act seeks to target athlete compensation and mobility, it offers no restraint on escalating executive, coaching or administrative spending. If the concern is truly college sports’ sustainability, the scrutiny cannot begin and end with the athletes generating the value.

ON THE DOCKET

The 10th Circuit is where the real eligibility fight now moves for the class of 2022. But likely isn’t where it will end, as both sides have dug in. Judge Charlotte Sweeney’s denial of the NCAA’s emergency stay request earlier this week means the 2022 class blanket waiver remains in place for the moment, preserving eligibility for affected athletes under the preliminary injunction. Following an appeal by the NCAA, the 10th Circuit issued a quick briefing schedule with submissions due Monday. The 10th Circuit’s decision will determine whether athletes like Seth Trimble, who are reliant on the injunction, will be able to continue playing. That said, the NCAA appears intent on defending this position at all costs, while other state suits seem inevitable if the preliminary injunction is reversed.

FOOTNOTES

“That’s not a functioning free market. It’s a distorted marketplace operating within nonprofit educational institutions that ultimately depend on students, donors, and, at many public universities, taxpayers.”

Todd Graff
Next

WNBA’s Product Is Thriving. Its Leadership Still Isn’t.