Over the course of the past two weeks, an increasingly heated transfer-related battle has played out along the west Tennessee banks of the Mississippi River, as the University of Memphis and its former-standout basketball player, Austin Nichols, have gone head-to-head over Nichols’ immediate options after his decision to leave the university and finish his playing career elsewhere. As I addressed in this piece two months ago when discussion of Everett Golson’s transfer announcement was all the rage, the current NCAA rules governing transfers vest an enormous amount of the control over a student-athlete’s future in the hands of those most immediately effected by that student-athlete’s transfer decision. And while it’s not difficult to be empathetic towards the coaching staffs and athletic administrations that are left behind in the wake of a valuable contributor’s decision to seek greener pastures, the disparity in power that the current NCAA rules confer in favor of the university – combined with any sort of codified oversight of this authority– culminates in a situation ripe for unfairness and even possible abuse. Which is why this particular story is so noteworthy; for the first time in recent memory, the threat of taking this transfer disagreement to the courts was invoked, with seemingly some degree of immediate results.
Drawing any type of conclusions about future policy based on a distinct and not-often-to-repeat-itself situation is frequently a fool’s errand. And, to be sure, this particular transfer struggle was a nasty little internecine affair with a fact pattern not likely to be seen again anytime soon. According to Memphis, Nichols, the hometown hero, leading scorer, and putative captain next season, blindsided the coaching staff by announcing his imminent transfer during a July 8th interview with a Memphis radio station (without so much as a courtesy call in advance). To complicate matters further from the coaching staff’s perspective, Nichols’ sudden decision to leave Memphis came about in mid-July, well after the traditional “transfer market” for players heats up immediately following the late March/early April conclusion of the college basketball season. Shortly after July 8th, the university announced it would not be releasing Nichols, meaning that he would not only have to sit out the NCAA-mandated season after his transfer but that he would also be forced to pay his own way at his new school (unable to be on scholarship in two places concurrently). Memphis would later relent, granting Nichols an NCAA-approved conditional release that allegedly prohibited him from attending a number of schools Memphis would face in the coming years (and even a few that they wouldn’t, necessarily).
The First Legal Volley
Besides a few particularly curt sound bites from the various actors, up to this point there wasn’t anything all that noteworthy about this transfer skirmish. Until yesterday morning, that is, when Nichols and his family announced that they had hired nationally-renowned sports attorney Don Jackson to aid in their fight against Memphis’ restrictions. Jackson, naturally, wasted no time in dumping an industrial-sized barrel of kerosene onto the smoldering embers of this controversy, explicitly stating that Memphis behavior towards Nichols was almost purely punitive in nature. Jackson wrote, in a widely-publicized email: “Memphis’ denial of his [Nichols] release is based upon a bad faith effort to deny his request to transfer… Further, the restrictions are nothing more than a calculated effort to punish Austin’s family for his desire to transfer to a new program. Although the staff has attempted to imply ‘tampering,’ the broad nature of the restrictions clearly establishes that ‘tampering’ is not an issue; this is a calculated effort by a dysfunctional staff to punish a player for taking a step to remove himself from a failing program.”
Even more interesting than this incendiary language, however, is Jackson’s assertion of how he planned to fight this perceived injustice. “The current NCAA regulations relative to member institution transfers violate the Sherman Act (as they illegally affect both the ‘input’ and ‘output’ markets),” Jackson wrote, further stating, “There’s no legal basis for Memphis to deny a release at this point… There’s a very realistic possibility this winds up in federal court.” This is, as far as I can tell, the first time the Sherman Antitrust Act has been invoked to defensively combat any university’s decision to restrict the transfer abilities of one of its student-athletes, and that makes this particular discussion truly unique.
To be clear, I offer no opinion on the validity or merits of Jackson’s Sherman claim here, as it relates to the NCAA-mandated transfer process. The sum total of my Sherman Act acumen is derived from one semester of Antitrust taken many moons ago, which now basically amounts to unreliable memories of a few random “price-fixing” snippets interspersed with a ton of student-newspaper crossword puzzles (Richard Posner, I am most assuredly not). What’s fascinating, however, is that in an era where the NCAA has seemingly been inundated with major legal challenges from every angle (from licensing issues to the cost of attendance fight to union status), are we on the cusp of the next great legal roadblock to the current status quo?
We Should Still Expect Change
As it pertains to the Nichols and Memphis situation, the matter is now moot. Yesterday morning, the university announced that it was removing all conditions from his release, effectively granting Nichols the right to transfer to any school he wishes (and in either an amusing coincidence or the smoking gun evidencing tampering – depending in large part on what side of the fence you sit on – it appears Jackson’s law school alma mater, the University of Virginia, is now Nichols’ presumed frontrunner). And consistent with the opinions espoused in my article regarding the Golson situation two months ago, I think this is the right decision.
Nichols still must sit out a year, which I believe to be an effective deterrent to combat the “transfer mania” that so many folks predict would be just around the corner should the NCAA prohibit schools from restricting transfers (especially when the recent NBA Draft only reinforced the prevailing thought that, when it comes to basketball, at least, one year older is quite a big deal to those who slot draft picks primarily on “potential”). Absent any insight into the motivations of Memphis – or any casual link between Jacksons’ threat to take this matter to court and Memphis’ decision yesterday – I will give the university the benefit of the doubt and assume that, after some raw emotions subsided, they felt compelled to do the right thing and let Nichols go peacefully. But that doesn’t change the fact that the way bitterly-contested transfer situations are handled, henceforth, may have been irrevocably changed by this past week’s occurrences in Memphis.
At the very least, Don Jackson’s phone should be ringing off the hook for the foreseeable future.