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Consistency, Fairness, and Transparency in NCAA Waivers

The NCAA is known as both an uncaring bureaucracy and an organization which simply makes up rules as it goes along. Any organization trying to wrangle the activities of over 1,000 members and hundreds of thousands of individuals at those institutions is bound to grow the large rulebooks and many committees and departments that make up a large bureaucracy.

The NCAA’s waiver process is one source of the second half of that seemingly inconsistent description. In theory any NCAA rule can be waived. So rules are rules in the NCAA, until an institution can come up with a good enough reason why they should not be the rules.

No where is the clash between the application of across-the-board rules and the willingness to waive those rules more visible than transfer waivers for football and men’s basketball players. While just a tiny fraction of athletes who transfer, high-profile transfers requesting waivers have hit critical mass in terms of sheer number and national media coverage. Fans and commentators now have strong opinions on the process as a whole, not just individual cases.

The most common criticism of transfer waivers is the lack of consistency. But often missing from discussions about consistency is what waivers are supposed to be consistent with. The NCAA would argue that the vast majority of waivers are consistent with past cases and/or waiver guidelines. The ones which are not include such compelling mitigation that most people would agree that consistency should not be an issue.

When questions of consistency are raised, what the case needs to be consistent with is sometimes so broad that the term is meaningless. With transfer waivers, the demand for consistency is no more nuanced than all transfer waivers should be granted or all transfer waivers should be denied.

Dig a little deeper and most of the demand for consistency is more a demand for consistency with our sense of justice. Put another way, most of the time consistency is used as a stand-in for demanding fairness. Or even the converse of that argument, that the NCAA should get out of the business of trying to be fair because it means the NCAA is put in the position of judging whether a student-athlete’s hardship is tragic enough to warrant a waiver.

In many cases, consistency and fairness can be on opposite sides. Consistency with waiver guidelines and case precedent might lead to an unfair result. The result that makes almost everyone feel good might anger the institution and athlete with a similar case that got a different result.

Efforts to fix the waiver system to make it either more consistent or more fair are as likely to render it worthless as they are to improve it. Waivers are necessary in the NCAA. Forcing them to fit exactly to guidelines defeats the purpose, since the corner case that most deserves a waiver gets frozen out. Removing all guidelines and standards and simply relying on “common sense” means no predictability, no way to advise coaches and athletes, and a competitive equity issue if schools are able to simply afford better lawyering.

From a macro perspective, the waiver system is one of the NCAA’s success stories. It avoids many of the worst unintended outcomes of NCAA rules and offers a lab to test new NCAA rules. Waivers start as rare occurrences, are outlined in waiver guidelines when they become more common, and get incorporated into the Division I manual when the NCAA decides it no longer needs to review each case. If the new exception missed some student-athletes, there is still the waiver process for them.

It is in the micro sense that the waiver process fails. The best way to fix something that works well on the whole but gets it wrong in individual cases is through transparency. Explaining why this waiver was approved and that was not would go a long way toward a better understanding the process in individual cases. And it would force commentators to more accurately describe their problems with individual waiver decisions.

Are you ready for the NEXT STEP!