With the spring semester nearing its conclusion, spring football is underway, and the NCAA men’s and women’s basketball tournaments have wrapped up. A common occurrence at this point in the semester is student-athletes entering the transfer portal. In the wake of changes in both NCAA and conference legislation requiring transferring student-athletes in some sports to spend a year in residence prior to returning to competition, the transfer portal has never been more popular, powerful, or impactful on intercollegiate athletics. The NCAA has recently released research and statistics on the transfer portal and its impacts.
When a student-athlete enters their name into the portal and is deciding which school should be their next home, there are many factors that influence their decision. Many of these factors are well known, from the facilities schools have, increased playing time, and an improved possibility of making it to the professional level. However, in the wake of the Supreme Court’s decision in the Alston case, and the NCAA’s easing of NIL restrictions, there are many legal factors that student-athletes should now consider when entering the transfer portal.
In the post-Alston era, the NCAA is no longer able to cap education-related benefits that schools can offer to student-athletes. While it is still unclear what exact benefits each school will offer their athletes, some universities have started to offer a stipend for achieving certain academic marks, such as achieving a particular grade point average or simply by maintaining academic eligibility to compete. At least 22 Division I, FBS-level universities plan to offer such a stipend. In addition to a cash stipend, many have speculated that universities will offer student-athletes the opportunity to obtain prestigious internships or attend a graduate school cost-free. Student-athletes should be aware of this broad change and realize this is another area where schools will try to differentiate themselves in recruiting. While many student-athletes will not play professionally, education-related benefits have substantial short-term and long-term benefits that many student-athletes should be aware of and consider when both choosing a school to attend.
Some potential Alston benefits that student-athletes could receive are computers or other technology needed to complete academic studies, musical instruments, post-graduate scholarships, and graduate program acceptance. The list of education-related benefits will only continue to expand in the years to come. Since many college student-athletes do not receive full cost-of-attendance athletic scholarships, these education-related benefits can greatly make up the difference some student athletes have to pay out of pocket to continue their academic studies. Student-athletes should be aware of these new benefits and consider what education-related benefits schools are offering when making the decision to transfer.
With the NCAA easing restrictions on student-athletes’ ability to earn compensation from their name, image, and likeness (NIL), states and individual schools have enacted laws and policies that lay out different guidelines. These policies can also have a significant impact on the decision of a student-athlete to transfer. Certain states and schools will have more restrictive policies, while others will be more lenient. Student-athletes looking to monetize off their NIL rights need to consider the differences in state laws and school NIL policies when deciding which school to attend.
An example of a restrictive provision that student-athletes should be aware of is the ability to sell school-assigned apparel on a third-party website. In the wake of the NCAA men’s and women’s basketball tournaments, basketball student-athletes have a lot of March Madness apparel and merchandise they could potentially sell. Depending on their school policy they may or may not be allowed to. Another provision student-athletes should be aware of is the ability to wear in-game apparel, like sneakers, that may be from another brand as an existing school sponsor. Many schools will prohibit this, but some have stated in their policies that their athletes would be allowed to do so. Finally, student-athletes should note the differences in schools’ policies on the use of the school’s intellectual property rights in student-athletes NIL promotions. Certain states and schools are restrictive and prohibit student-athletes from using the school’s intellectual property for NIL purposes, while other schools are allowing student-athletes to enter into group licensing deals while using the school’s trademarks.
It is important for student-athletes to read through and analyze the NIL policy for the schools they are considering transferring to in order to determine which school has a policy that fits their desired NIL needs. While many schools have slightly different NIL policies, the differences can have substantial implications for incoming and transferring student athletes. With an understanding of the legal factors to consider when deciding on what school to transfer to, student-athletes will be more educated on which school fits their desired needs the best. Of course, some will largely only consider the “on-field” factors, but for many student-athletes the legal factors can have as big of an impact on deciding where their future home will be. These changes are novel and the effects of them are still developing, but current student-athletes should educate themselves on the legal issues affecting them in the transfer portal.
By Paul Kekich
Paul Kekich is a Sports Law Intern at Frieser Legal and a second-year law student at Marquette University law school where he is pursuing his J.D. with a focus on sports law and intellectual property law. Paul’s studies are focused on a potential future of working in collegiate sports, as well as identifying new and emerging issues that affect college athletes.
