Wednesday, February 1, is National Signing Day for college football, field hockey, soccer, track and field, cross country, and men’s water polo. Although many student-athletes will sign a National Letter of Intent tomorrow, they are not required to do so, as the signing period continues through April 1.
For National Signing Day, I’ve updated the post that I wrote a few years ago discussing whether the National Letter of Intent is legally enforceable:
Besides the cost of litigation, what would prevent a student from challenging a National Letter of Intent in court?
The National Letter of Intent (NLI) represents a contract between a prospective student-athlete and a university. Thus, both parties could sue each other in the event of a breach. For a student-athlete however, the cost of litigation is not the only deterrent to filing suit. The time spent in litigation might be a more pressing concern. For example, if a player breaks his or her NLI commitment, and is not released by the Athletic Director, he or she has to sit out a year (and lose that year of eligibility) before participating in collegiate athletics at another school. It is unlikely that a lawsuit would be concluded by that point. Moreover, there are never any guarantees of success in litigation.
Could this agreement actually be considered an unconscionable adhesion contract and be voided?
A contract of adhesion is essentially a form agreement that one party drafts and the other party must accept or reject, without a meaningful opportunity to negotiate. The NLI fits that description. Although Memphis and John Calipari negotiated terms (specifically Provision No. 19 regarding the departure of a coach), that loophole has been closed.
But the question of enforceability does not merely hinge upon whether the NLI is a contract of adhesion. After all, we sign such contracts, such as cell phone agreements, gym memberships and liability waivers, without blinking and the contracts are typically enforceable. To void the contract, a court must deem it unconscionable, or contrary to public policy by a court. (Click here to read about a Connecticut case involving the enforceability of a gym’s waiver of liability).
There may be another issue to consider: a student-athlete’s access to counsel to assist him or her in reviewing and signing the NLI. If NLIs are typically signed by a student-athlete without the advice of counsel and without a meaningful opportunity to negotiate, a student-athlete may have a stronger argument to void the contract on unconscionability or public policy grounds. In fact, access to counsel forms the foundation of two ongoing cases in collegiate athletics: Oliver v. NCAA and O’Bannon v. NCAA.
According to Marc Isenberg, publisher of the Money Players Blog, many lawyers do believe the NLI could be deemed a contract of adhesion, and invalidated. But keep in mind that although the terms are certainly one-sided, the NLI is voluntary and the terms may not rise to the level of unconscionable in the eyes of the court.