The National Letter of Intent Violates Doctrine of Unconscionability

By Leo J. White

It is my opinion that the National Letter of Intent (NLI) program, and specifically the executed National Letter of Intent itself, is in need of reform to place the universities and the athletes, along with their families, on more equitable terms. The NLI, which is a binding contract between the university and the athlete, in my opinion violates basic cannons of contract law, specifically the doctrine of unconscionability. Without reform, the NLI in its current form should be held void.

A contract may be found unconscionable if either the procedures by which the formation of the contract have followed, or the terms of the contract itself, are unfair. The NLI is a boilerplate contract that is not open to negotiation. Clause 15 of the NLI, for example, expressly prohibits additions or deletions to the NLI. The inability to negotiate terms puts the athlete at a significant disadvantage. For example, the NLI may be nullified if the athlete does not meet the admissions or eligibility requirements of the institution. The NLI does expressly include, or incorporate by reference, what the terms for admissions or eligibility are for the signing institution. Such ambiguity may provide a loop-hole through which the institution may back out of the contract. The athlete does not have such an option.

Also, the terms of the NLI do not indicate what recourse the athlete has should the institution be found in violation of NCAA rules. The athlete may be adversely affected if the institution is held ineligible for tournament participation, required to forfeit wins, put on probation, or suffers a host of other potential punishments. The athlete, however, by the terms of the contract may not enroll in another institution without suffering the basic penalty for breach.

In addition, the choice of an institution by an athlete may be significantly influenced by the coach and coaching staff of the particular sport in which the athlete intends to participate. The NLI, however, explicitly states that the NLI is executed between the institution and the athlete (Clause 19). The athlete remains bound to the institution if the coach remains or leaves. In today’s world of a seemingly coaching carousel at top athletic programs, the athlete should be entitled to some form of recourse without penalty if the coach decides to leave after the NLI is signed.

Furthermore, the NLI is a contract whose term is for one year (the athlete is to receive a one-year scholarship in return for enrolling in the institution for one academic year). The basic penalty upon the athlete for breach of the contract by not enrolling in the original institution for one academic year and enrolling in another institution that participate in the NLI program carries a duration of two years. The athlete that breaches must not participate in intercollegiate competition of any kind for one year. In addition, the athlete loses one year of athletic eligibility. Such a punishment is unfair to the athlete.

Finally, the contract is not negotiated at arm’s length by equally sophisticated parties. It is not likely that prospective college athletes deciding to sign an NLI, or their families, are receiving counsel of any kind. The university, the NLI Steering Committee, or the NCAA, on the other hand, I presume to have had significant legal guidance in drafting the boilerplate NLI. The disparity in representation is further evidence in support of an unconscionable contract.

The NLI may provide some level of predictability in the behavior expected between the signing institution and the athlete. However, the level of predictability afforded does not outweigh the contract law issues associated with the NLI. It is current form, it is my view that the NLI is an unconscionable contract due to: (1) the express inability to negotiate terms; (2) the terms of the contract heavily favor the institution; and (3) the contract is not negotiated at arm’s length by similarly sophisticated parties.

Leo J. White is a third-year evening law student at Quinnipiac School of Law concentrating in Intellectual Property Law.