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New NWSL 2021 college draft rule is bad for player rights

This is a bit of a hot mess, so thanks for that 2020.

2020 NWSL Draft Photo by Jose Argueta/ISI Photos/Getty Images

NWSL has always been kind of a “we make up the rules as we go” kind of league. Some of it is simply necessary because they’re trying to navigate uncharted waters, and new leagues that are growing will have to change rules as circumstances sometimes dictate. Things that were necessary at the start of the league may not be necessary now for its continued survival, and as rules become obsolete they should change. That’s not really how it feels with the 2021 college draft, though.

It all started when the NWSL obtained a waiver from the NCAA for players declaring for the draft this year. Normally, declaring for a professional draft would nix their college eligibility. This year, due to COVID-19 messing up [checks notes] most of 2020, Division I players can enter the draft and still play their spring season before reporting to their club, so long as they don’t hire an agent or sign any pro contract until the season is complete.

On its own, this is a good move and a surprisingly fair moment for the NCAA. It looked like something designed to help open up the draft pool and give college athletes a little more wiggle room to decide on their futures, rather than having to give up what could be their last college season or have to wait another year to go pro due to circumstances entirely out of their control.

But in a further twist, on Wednesday NWSL announced that all Division I college players who have exhausted three years of eligibility are technically eligible for the draft now, whether they declare for the draft or not. In their announcement, commissioner Lisa Baird said, “By modifying our draft eligibility requirements, and removing barriers during these unprecedented times, we’ll ensure our clubs have a more expansive opportunity to identify the best collegiate athletes for their teams and enable those athletes to join the NWSL when it makes sense for them.”

According to the league, “The rights to any players selected in the NWSL Draft will be assigned to the drafting team’s College Protected List until the start of the 2022 NWSL preseason. Rights to players on a team’s College Protected List are assets of the team and may be kept, waived or traded, at the team’s discretion during the Protected Period. Rights to players on a team’s College Protected List who have not been signed a standard player agreement at the end of the Protected Period will be waived.”

By NWSL roster rules on the site, the “Protected Period” lasts until “the end of the season immediately following the Draft.” A league spokesperson clarified that the College Protected Period mentioned in the release that lasts until the start of the 2022 NWSL preseason is the correct timeline for 2021 college player rights, but that “this update is specifically for 2021.” As of the posting of this article, the league hasn’t clarified their reasoning behind extending the Protected Period from the old rule.

That difference in how long the Protected Period lasts matters. Normally anyone who doesn’t declare for the draft is not eligible to play in NWSL for the following season, so holding their rights is a bit of a moot point if they decide not to play (although it’s still somewhat restrictive). But that extended period between the end of the season - and here we assume that end is after the championships, as opposed to the end of the regular season - and the start of preseason creates a period from mid-November to some time in February or March where players are unable to freely negotiate for a spot with a club because a club already holds their rights.

So let’s digest this a bit: even if D-I college player does not declare for the draft, if she meets the eligibility requirements then a club can still draft her and hold her rights until 2022. They can also trade away these rights to another club, seemingly all without her ever having any kind of input. This feels really bad in terms of the labor rights of the players, particularly given that collegiate athletes are not allowed to have agents who can help them fairly bargain with a club.

Does this mean that players who don’t declare but later on would try to enter the league through another mechanism, such as joining a team abroad then transferring into NWSL before the 2022 preseason would simply be stuck? And what happens to the 2022 college draft, which also presumably takes place in January, likely at least a full month before 2022 preseason would begin - what if they planned to enter the draft at that time, after fully exhausting their eligibility?

It’s understandable that the league wanted to give the clubs more wiggle room here if, as rumored, there just weren’t that many players declaring this season.

But making a rule just for 2021 that is anti-labor like this isn’t the way. Even if it’s “only” a window of a few months that players’ rights are stuck somewhere, that should be enough to nix the rule. (If you think this sentiment means the college draft in general needs to change or go, you’re not wrong, but that is beyond the scope of this specific article. Something to keep in mind as we go through the 2021 draft though!) Anti-labor rules, big or small, need to be nipped in the bud or at least negotiated between ownership and labor lest they set a precedent for future rules that limit players’ ability to negotiate. And those few months could actually be impactful to a player’s career as teams decide who to invite for preseason, who to re-sign to rosters, and who to draft.

If all of this feels kind of confusing, you’re not alone. The league is shifting and growing and trying to adjust on the fly. They’ve got to find ways to balance owner and player and league interests while figuring out how to bring in more money without going bust and while maintaining parity, while at the same time disentangling themselves financially and operationally from US Soccer. Sometimes it seems like it would be better to blow up the rule book and try to start fresh, instead of Frankensteining rules together as situations shift. It’s an unenviable job, unless you were that one nerd who relished memorizing Robert’s Rules of Order in high school. But whatever path they take, the league needs to take care that they don’t trample over player rights while they try to mop up any messes. Perhaps this is a one-off after the wild wild west that was 2020. Regardless, it’s never bad to stay vigilant against overreach that negatively impacts labor.