Aug 30 2019

This article originally was published by Law360.

Student-athletes across the country will be grappling with these difficult questions in the days to come. September 1 of a high school student’s junior year is a new deadline (as of 2018) for recruitment and communication. Coaches are allowed to communicate directly to a PSA starting on September 1 for all sports (except football and basketball; they have their own rules).

Thus, a practical effect of the new legislation means that the earliest possible date for a verbal offer and verbal acceptance is 12:00 am on September 1. No decisions need to be made by that date; it is the opening of the gates for coach-to-player recruiting communication. This legislation was created in response to growing concerns from players, parents and coaches over early recruiting. Coaches, in many sports, were making verbal offers to PSAs still in middle school.

The Scenario

You’ve reached the finish line. After years of trekking to practices, tournaments, showcases, meetings and the myriad other obligations that come with parenting a budding athlete, the end is here. Your daughter Jane is in her junior year of high school, and a natural athlete, in fact good enough to be a “prospective college student-athlete” or PSA, who’s attracted the attention of multiple college athletics programs looking to fill their rosters. A dozen coaches have called, emailed, texted and made personal visits to ensure that when Jane finally chooses which University will benefit from her athletic talents, it will be theirs.

Like many PSAs, Jane makes her choice during her junior year of high school, and makes a verbal commitment to Prestigious University. An unwavering choice, too, the place she fell in love with, the place she felt she could flourish both athletically and academically, and the place that you, her parents, are most happy she’ll be attending.

Now, in the fall semester of her senior year, the time has come for Jane to sign a National Letter of Intent (NLI) with Prestigious, transforming her verbal commitment to play college athletics into a written one. In your mind, it’s a nice formality -- the “big day”, after all, was when she made the verbal commitment, the splash-out across social media, the day all the stress and uncertainty of the recruiting process melted away, and all of her hard work had paid off in full.

That’s when it happens. Jane receives a phone call, is visibly shaken, in tears. Her future head coach at Prestigious University had just informed her that there was no longer a spot for her in that year’s recruiting class. Her place on the roster, many months earlier promised and accepted, has vanished, and with it, the promise, the hope, the dream for Jane of continuing her athletic career at the next level, at least for the moment, is gone. Emotions of sadness, anger, frustration run deep not only due to the loss of opportunity, but now Jane’s recruiting “window” may be closed; the other eleven coaches that were once interested have long moved on and filled their rosters.

We routinely hear stories on sports news and social media about student athletes changing their minds about attending a particular school, but when it happens the other way around, it usually plays out in the silence of a home in shock. The student doesn’t want it out there, and neither does the school. As an attorney and high school athletics coach, I occasionally hear about this situation, usually when a fearful player, parent or HS coach reaches out to me with one question: “is a University REALLY allowed to do that?”

Can a coach make a verbal offer to a PSA and rescind that offer even after the PSA has accepted? According to the National Collegiate Athletics Association (“NCAA”), rescissions by coaches and programs are indeed permissible. The NCAA expressly mandates that verbal offers and commitments are not binding on either a PSA or a college or university. Thus, until a PSA has signed a National Letter of Intent (“NLI”) during a specified signing period during his or her senior year of high school, that verbal commitment can be rescinded by either an athlete or secondary institution without reprisal.

From a legal standpoint, the law of contracts states that a verbal bilateral contract where there is valid consideration and no exceptions apply, is enforceable. For those interested, there are plenty of law journal and law review articles on the confusing relationship between the athlete’s verbal commitment and law of contracts. [1] But what may be more helpful to PSAs (and their parents) is a roadmap to help put a PSA in the proper mindset when confronted with a verbal offer, and how to treat a verbal commitment.

How it Works

For most current or former college student-athletes, their recruiting process consists of the following significant moments:

1. You compete in high school athletics and a college coach or recruiter sees you play, either in person or on film.

2. A coach contacts you, either via letter, email or phone call.

3. The coach makes an offer for you to verbally commit to the school. Sometimes, these offers are made with a timetable attached (“I need to know within 72 hours or I’ll make the offer to someone else”).

4. You communicate your verbal commitment to that Coach.

5. During an NLI period, in your senior year of high school, you sign an NLI. It is at this point that you and the program have entered into a binding contract.

 

Verbal Offers are Promising

Each year coaches are tasked with recruiting an entire class of PSAs. They look at positions of need and attempt to create a balanced recruiting class. Without the benefit of verbal commitments, coaches would have to wait until players agree to sign an NLI to discover the holes in a respective recruiting class.

Additionally, PSAs that verbally commit elsewhere also show a coach that they should focus their recruiting efforts on other PSAs. So verbal commitments help funnel the recruiting process and make it more predictable for coaches who have a genuine interest in honoring them.

So, while a PSA should understand that acceptance of a verbal offer is not binding, it is still critical to the recruiting process. In any case, regardless of athletic ability, PSAs must still meet the admissions standards for an institution. So before a verbal offer is made by a coach, that coach has most likely vetted a PSA with admissions and confirmed that the PSA meets the academic threshold required for acceptance.

 

The Verbal Commitment is a Fiction

Sadly, rescinded offers and acceptances appear to be a growing trend rather than a fading practice. There is no central data hub for information regarding verbal commitment rescissions but the consensus of those experienced in this process is that rescissions are happening more than they used to across all sports, though most commonly reported in the “revenue sports” of football and basketball. [2] So as a PSA you must firmly grasp and appreciate that until you sign a NLI, your “spot” in a program is not guaranteed.

 

Prepare for the Best (and Worst )

As attorneys, our goal is to eliminate risk or exposure for our clients. When we cannot eliminate risk, our next task is to mitigate it. A verbally-committed PSA cannot eliminate the risk of being dropped by a program late in the process, but he or she can certainly aggravate or mitigate that risk.

Aggravating factors include a drop in academic performance, disciplinary or legal issues, a plateau on the athletics field, unsportsmanlike or otherwise, that would make coaches second-guess the decision to bring a PSA into their locker rooms.

Mitigating factors are positive progress across the board academically, socially and athletically. Seeking to achieve in other areas, such as community service, student government and the like that show a coach “I am excited about athletics, but what I really love is self-improvement.” A PSA that demonstrates maturity and the understanding that they have not reached some imaginary finish line by verbally committing to play sports, is far less likely to find herself in Jane’s situation.

 

If you Lose your Spot, Know your Options

So what if you’re Jane? You did everything right, but still lost your spot. When communicating with other interested coaches about a decision to commit to a different program, be respectful and avoid burning bridges. Some PSAs verbally commit to a school and never alert other coaches that have been recruiting them, which is a huge mistake.

If the worst happens, and a PSA needs to find a new program with only days remaining until the NLI period, he or she needs to know what coaches to call to see if there is still interest. If communications had been handled with respect and humility, chances are that coach will pick up the phone. As appropriate a PSA should contact any coach that had shown meaningful interest previous to their verbal commitment made elsewhere.

For many PSAs, the recruiting process is more than an opportunity to play sports at the college level. It’s their first experience with sales, negotiation, scheduling, juggling communications and drafting and responding to emails that have a significant effect on their future. In other words, it can be a valuable, teachable, preview into what it will be like as an adult in the professional world. Those PSAs that treat it as such will mitigate their risk during the process.

Alex Buckley is an attorney in Womble Bond Dickinson’s Mass Torts and Products Liability Practice Group. He is also the current head men’s lacrosse coach at Cardinal Gibbons High School in Raleigh, NC, and has assisted prospective student athletes with the recruiting process for almost two decades

 

[1] E.G .: Brady Pierce, Contract Law Govern the Recruitment Process and Enable Enforcement of Verbal Commitments , 24 J.L. Bus. & Eth. 127, 129 (2018)

[2] https://www.citizen-times.com/story/sports/high-school/hshuddle/2018/12/18/robbinsville-softball-player-sees-ugly-side-college-recruiting/2026247002/