What is to stop a student from challenging a National Letter of Intent after the fact in court, besides the cost of litigation?
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 issue. 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.
If it really comes to it, could this agreement actually be considered an unconscionable adhesion contract and thus, if challenged, be rendered void?
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 have been willing to negotiate terms (specifically Provision No. 19 regarding the departure of a coach) most schools are unwilling to negotiate.
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.
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