About half of this year’s Sweet Sixteen starters in the men’s NCAA March Madness tournament began their college careers at a different program. Michigan State was the only Sweet Sixteen team with all five starters originating at the university. Four teams retained four of their five starters. For all remaining teams, at least two starters transferred from a different school.
Player transfers are part of what makes March Madness so exciting. Transfers allow competition to thrive. Teams are reshaped, and talent is redistributed. Players can move to find the best opportunity and fit.
Prior to 2021, NCAA transfers functioned almost like non-competes. Players who transferred were required to sit out for one full academic year – known as “redshirting” – unless they received a waiver. Now, with the NCAA’s one-time transfer exception, players can transfer once without any significant restriction and are immediately eligible to play.
NCAA transfers are easy. Student athletes simply enter their names into the transfer portal to indicate that they’re “open to work.” From there, coaches may contact athletes to express interest. The ease of the transfer portal provides student athletes with flexibility, opportunity, and choice.
This system makes sense for an enterprise that thrives on healthy competition, crazy upsets, and UConn buzzer-beaters. But not all competition is good competition. Some industries – such as health care, insurance, and tech – earn competitive advantage by developing protectable business interests that are unique to the company. Protectable business interests may include confidential information (playbooks), client relationships (season ticket holders), or investments in training (player development).
If the NCAA restricted transfers by allowing programs to enter non-compete agreements with their players, the restriction might look like this:
For a period of two (2) years following Player’s departure from the Program, Player agrees not to provide basketball services for any institution within the Big Ten Conference.
Non-compete agreements in the employment context function similarly. Employers must limit non-compete agreements in duration (two years), scope (basketball services), and location (Big Ten Conference). Overbroad or unreasonable restrictions are routinely struck down by courts. In drafting a non-compete agreement, companies must balance legitimate business interests with unnecessary restraints on competition.
Non-compete agreements also vary significantly by jurisdiction. Employers who are considering these restrictions should ensure that they are narrowly tailored and enforceable under applicable law.
If you are interested in protecting your “best players,” contact a FordHarrison attorney for guidance.
Erin Shrum is an associate in the Nashville office of FordHarrison. She focuses her practice on counseling and representing management clients in labor and employment law disputes, helping employers make legally informed decisions through clear communication and practical, business-minded solutions.