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  • The NCAA's waiver rule is once again at the center of drama, but the focus should be on the absurdity of the rule's language itself.
By Michael Rosenberg
August 16, 2019

There have been a lot of stories this week about a spat between Jim Harbaugh and Luke Fickell and a player, James Hudson, who transferred from Harbaugh’s Michigan program to Fickell’s Cincinnati program and wants to play right away. We will get into the details by the end of this column. For now, just understand this: Like a lot of college sports stories, it quickly became about the coaches' personas, a feud, and preconceived notions about right and wrong. And like a lot of college sports stories, the real story was lost.

This is not about Harbaugh. Or Fickell. Or Hudson. It’s about a single NCAA rule that has been revised to the point of self-parody. It is about coaches acting in their best interests and promising what they can’t deliver. (Shocking, I know.)

Follow along, and you will get another little peek inside the college sports machine.

Start with the rule. Forever, basically, college football players had to sit out a year after transferring. The fairness of this rule is debatable, to put it mildly, but put that aside for a moment. That was the rule. There were very rare exceptions—some under a NCAA rule that covered “egregious behavior” at the previous school.

Then, in April 2018, the NCAA replaced its “egregious behavior” exception with a “mitigating circumstances” exception. Evidently the NCAA replaced its lawyers with English professors. You can imagine the meeting.

FACULTY REPRESENTATIVE NO. 1: I don’t find this behavior egregious, Lewis.

FACULTY REPRESENTATIVE NO. 2: But does it mitigate?

FACULTY REPRESENTATIVE NO. 1: Why, I believe it does!

Mitigating circumstances, of course, can mean anything, from the extremely serious (sexual assault or harassment) to the extremely flimsy (the dorm food was icky). Coaches, who look for loopholes before they brush their teeth in the morning, recognized this one immediately.

And now, as lawyer and transfer expert Tom Mars says, “It is situational ethics at an epic level.” Coaches who publicly rail against the waivers privately call Mars and ask for help in getting them.

“Absolutely no question,” Mars says. “I’ve had multiple conversations that establish beyond question that the head coaches’ attitudes about waivers depends which side of the portal they’re on at the moment.”

And as soon as players enter the transfer portal, other coaches call with the pitch: Transfer here and we’ll get you a waiver. These coaches don’t know if a waiver is justified. Many of them don’t even understand the rule. They just know what the players want to hear.

“Part of the recruiting pitch is, ‘You come here, we’ll get you a waiver,’” Mars says. “I’m not speculating. I know it is (happening). Parents call me 15 minutes after leaving the coach’s office.”

This is what happens when the NCAA writes a haphazard, poorly constructed rule.

How poorly constructed? Consider: one of four requirements for a “mitigating circumstance” is that “The previous institution's athletics administration does not oppose the transfer.” This is a ridiculous sentence on several levels.

First: the player is already transferring. This exception is for a waiver to play right away. There is no opposing the transfer. So it should say the previous institution “does not oppose the waiver.” Apparently the English professors got drunk before they finished the job.

Also, think about this: If there are mitigating circumstances at Big School, why do we need Big School to confirm it? Are we assuming Big School will be honest about all its mitigating circumstances? News flash: Big School usually covers Big School’s Big Butt.

That’s how this works, and that’s how Mars got involved in the first place. Ole Miss misled its players about impending sanctions, and Mars helped the players become eligible immediately at their new schools.

This year, the NCAA changed its “mitigating circumstances” rule.

It changed it to …

Are you ready?

Extenuating, extraordinary and mitigating circumstances.

“They felt it necessary to add two adjectives,” Mars says. “What will it be next year? ‘Incredibly extraordinary, extenuating, mitigating circumstances?’”

Mars will soon do some work for the NCAA in its new Complex Case Unit, though he has not received his first case yet. But his primary job is his private practice. So he doesn’t mind saying that the NCAA has created “a broad enough exception that you can drive a truck through it.”

Coaches are more than happy to be the truck drivers here. And this brings us back to Harbaugh, Fickell, and Hudson. Hudson says he was depressed at Michigan—there is the mitigating circumstance. Fickell says Harbaugh did not help with the waiver, which is why it was denied.

If Hudson says he was depressed at Michigan, then let’s not question him. But as Mars says, it’s not Harbaugh’s job to help with the waiver. The NCAA only asks the previous institution if it objects to the waiver, and Michigan did not object. The rest is up to the NCAA.

Mars says, “Michigan could have had a parade for James Hudson to get a waiver and it wouldn’t have made a bit of difference.” He also says, “Luke Fickell ought to stick to coaching.”

But to be fair to Fickell: the NCAA rule encourages its coaches not to stick to coaching. It encourages them to drive that truck through the exception.

Fickell apparently assumes that is standard-operating procedure—because, at many schools, it is. And to understand the utter ridiculousness of this story, consider: Fickell praised Alabama for helping safety Kyriq McDonald get a waiver so he could play immediately at Cincinnati.

McDonald’s waiver, according to Fickell, was not for mitigating, extraordinary, or extenuating circumstances.

It was—Fickell’s words here—a run-off waiver.

Yes: Alabama decided McDonald wasn’t a good enough player to keep his scholarship, so he had to leave.

And from this, we’re supposed to conclude that Alabama did the right thing, and Michigan did not.

Situational ethics at an epic level. There is no doubt about that. And while it’s easy to shred the NCAA for this, understand: the people in Indianapolis making these waiver decisions are not exactly enjoying it. They didn’t write the rule. Faculty representatives from the schools did.

The only logical solution here is the one Harbaugh proposed: give everybody a one-time automatic waiver. It would eliminate the waiver promises in transfer recruiting, and it would help combat the horse-trading game between schools. It would also be fair.

The current situation is just not tenable.

“I think there is a real good possibility that within the next year, the legislative council will throw out what’s on the books and replace it with a one-time transfer-without-penalty rule,” Mars says.

It would be a drastic change for college football, but also a simple one. And the NCAA would get its administrators out of these extraordinary, extenuating, mitigating circumstances.

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