Bad facts make bad law.
Every lawyer knows the cliché. It means that if you try to enforce an otherwise defensible rule in a uniquely indefensible situation, a court may create precedent that makes the rule harder to enforce everywhere else.
The NCAA has never seemed to understand this.
Last winter as the fervor and controversy of the House Settlement and new roster limits raged on, Oklahoma golfer Holly McLean filed a lawsuit that had the potential to devastate a crucial competitive balance lever needed for any sports league, and all for a ridiculous reason.
McLean was told that she would be cut from the team because the coach pared down the roster in anticipation for the new limits (which ended up not taking effect until the next fall). She transferred to South Florida but was told she couldn’t play since she had participated in a preseason tournament before she was cut. She challenged the Season in Competition Rule. That’s a rule with the legitimate purpose of preventing athletes from playing for multiple schools during the same season, but in this case prevented McLean from playing after transferring for reasons completely outside of her control.
The NCAA should thank its lucky stars that McLean decided to voluntarily dismiss her lawsuit before anything happened — and it should learn from it.
Instead, in the wake of last Friday’s Wisne decision out of Colorado, the NCAA is putting its foot down, threatening to punish any team or coach who accepts an athlete granted an extra year as a transfer with up to a half season suspension for the coach and a fine equal to 20 percent of the team’s annual budget. The NCAA cites its new “ghost transfer” rule, which is intended to prevent schools from circumventing the portal by signing, rostering, or playing transfers who were never entered into it.
As a formal matter, the NCAA has every right to take this approach. Judge Charlotte Sweeney, the judge who issued the Wisne injunction, clarified later this weekend that her order only gives affected athletes a fifth year; it does not affect the NCAA’s existing transfer rules, at least not directly. Unlike the narrower injunctions entered for particular groups of athletes in Tennessee and Ohio, the Wisne order did not expressly require the NCAA to reopen the portal or permit otherwise prohibited transfers. The Wisne lawyers are challenging that but the NCAA is in the technical right, at least for now.
But there’s a difference between what’s legally allowed and what’s legally smart.
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The NCAA vigorously objects to the Wisne decision. They have every right to do so, and they have every right to seek an appeal of the decision. They may even win.
But the athletes affected by Wisne did not deliberately evade the transfer portal period. They did not collude with schools through backchannels and circumvent the intention of the portal period. When their transfer windows were open, the NCAA’s rules told them that their eligibility would end after the 2025–26 season. They could not reasonably have anticipated that the NCAA — or a federal court — would later make them eligible for a fifth year.
Those players are now left with two choices: return to their previous teams, or do not play at all. They cannot join another program that may be happy to have them and may have both a roster spot and NIL money available.
Of course, that’s the point. The NCAA is intentionally trying to make things difficult for these athletes. It does not believe they should be able to play at all, regardless of what a federal judge might think. Per NCAA president Charlie Baker, these athletes are all “failed professionals” after all.
Yet there is another option for these athletes: more litigation. A lawsuit challenging this new ghost portal rule was likely due to be challenged anyway. With these facts, athletes who were not tampered with, are not looking to just jump to a bigger paycheck and were granted an extra year through judicial order may be viewed by judges differently than they would under more intended applications of the rule.
To repeat: Bad facts make bad law.
The NCAA will undoubtedly argue that it is just applying the rule as written. But the rule was not written for these circumstances. Applying it here seems far more callous, contemptuous, and scornful of legal authority than it would be normally.
At a time when judges have been much more willing to insert themselves into the NCAA governance process and question the NCAA’s authority, the NCAA cannot afford to make itself look like it is interfering with that judicial authority. Just like the NCAA, judges do not like to be undermined.
We can argue whether the judicialization of college sports is a good or bad thing. That very debate is happening in Congress right now. The Protect College Sports Act will do much (if not everything) to re-secure the NCAA’s authority against judicial influence.
Maybe that’s a good thing. Maybe not.
Congress may eventually insulate NCAA governance from this kind of judicial intervention. Until it does, however, the NCAA must govern with the courts it has. It can create a narrow exception for athletes who could not have entered the portal because its own rules told them they were ineligible, or it can hand a judge the perfect facts for cutting back a rule the NCAA actually needs.
Bad facts make bad law. Right now, the NCAA is making both.
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