Cincinnati’s Aziz Bandaogo has appeal for immediate eligibility denied, exploring legal action

CINCINNATI — Aziz Bandaogo, a 7-foot transfer center for Cincinnati Bearcats men’s basketball, had his waiver for immediate eligibility denied by the NCAA on appeal, the university announced Friday. Bandaogo applied for a mental health waiver as a second-time transfer after spending his first two seasons at Akron and last season at Utah Valley, where he won WAC Defensive Player of the Year. His initial request for immediate eligibility was denied last month.

“I’m disappointed in the NCAA’s decision to deny my appeal for immediate eligibility for the 2023-24 basketball season. This decision not only affects me, but also my family and my teammates,” Bandaogo wrote in a statement provided to The Athletic. “Mental health challenges are real and can happen to anyone. … The NCAA’s decision takes away my joy in playing and prevents me from using the gifts I have been blessed with to support my teammates on the court like I want to.

“While I am working to return to good mental health, the NCAA has put another obstacle in my way — without any real explanation why.”

Aziz Bandaogo provided a statement to @TheAthleticCBB re: the NCAA’s denial of his mental health waiver for immediate eligibility as a two-time transfer: “Mental health challenges are real…This is difficult for me to talk about, but it affected my everyday life.”

FULL STATEMENT pic.twitter.com/jccISKHJkx

— Justin Williams (@Williams_Justin) November 10, 2023

Cincinnati athletic director John Cunningham and men’s basketball coach Wes Miller said in a joint statement they are “deeply disappointed” in the decision, “as the overwhelming evidence clearly meets the criteria established by the membership.”

They continued: “The NCAA claims to promote mental health as a top priority, but the denial of eligibility for student-athletes who suffer from mental health conditions only harms the very student-athletes the organization supposedly protects.”

Meghan Durham Wright, the NCAA’s associate director of communications, said in a statement to The Athletic: “While the NCAA cannot comment on specific cases, the Association is proud to have advanced several mental health initiatives and benefits, including new bylaws that require all DI schools provide mental health services to all student-athletes.”

“Member-approved transfer rules make it easier than ever for student-athletes to transfer once and compete immediately,” Wright’s statement continued. “To ensure stability and academic success for college athletes, Division I members also determined that waivers should be required for student-athletes who transfer multiple times and adopted changes to those guidelines in January 2023.”

Bandaogo, a native of Senegal, transferred to Cincinnati in May after averaging 11.5 points, 10.4 rebounds and 2.9 blocked shots for Utah Valley in 2022-23. The details of Bandaogo’s waiver are protected by a combination of FERPA and HIPAA laws, but those briefed on the case say that in addition to Bandaogo’s former head coach and multiple players departing Utah Valley this offseason, he also has a support system in Akron, Ohio, where he started his college career.

“One of the main reasons I chose to attend Cincinnati was its closeness to my American family,” Bandaogo said in his statement. “When I chose Cincinnati, I counted on the NCAA to follow its own rules about transferring to the best school for my mental health. The NCAA let me down.”

Joint statement from Cincinnati AD John Cunningham and #Bearcats MBB coach Wes Miller on Aziz Bandaogo. pic.twitter.com/YIrsSO3Kr3

— Justin Williams (@Williams_Justin) November 10, 2023

As of mid-September, the NCAA had approved just 18 percent of multiple-time transfer waivers, which must fall under one of three classifications: mental health, exigent circumstances outside the student’s control (such as “physical or sexual assault or discrimination based on a protected class”) or assertions involving diagnosed education-impacting disabilities.

The high threshold for clearance has created a struggle many in college football and basketball have forecasted since the NCAA waiver guidelines were adjusted in January. The highest-profile dispute was North Carolina wide receiver Tez Walker in his battle for immediate eligibility.

Bandaogo is one of two Cincinnati transfers seeking a mental health waiver, along with Temple transfer Jamille Reynolds, who has also appealed an initial denial from the NCAA. The University of Cincinnati confirmed that a decision on Reynolds’ appeal has not yet been delivered.

“Aziz and Jamille deserve to play college basketball for the University of Cincinnati this season, and we will continue to fully support them,” Cunningham and Miller said.

The denial of Bandaogo’s appeal marks the end of the NCAA’s waiver process, but there is a strong likelihood that Bandaogo’s personal representation, and possibly Ohio attorney general Dave Yost, will pursue legal action.

“(Aziz) has an exceptionally well-documented waiver application that checks any reasonable interpretation of the NCAA’s published standards,” Swain Wood, a partner at Morningstar Law Group and legal representative for Bandaogo, said.

“The NCAA’s denial of Aziz’s eligibility to play this season is demonstrably wrong under the NCAA’s own guidelines, is unjust, and is likely illegal,” Elliot Abrams, a partner at Cheshire Parker Schneider and another legal representative for Bandaogo, added.

Morningstar and Cheshire Parker Schneider are both North Carolina-based firms that also represented Walker. The NCAA denied Walker’s mental health waiver in September, but he was ultimately granted immediate eligibility in early October after the NCAA said it received “new information” regarding his waiver.

Yost would likely pursue an antitrust argument against the NCAA for limiting Bandaogo’s ability to play and potentially profit off his name, image and likeness.

“We’ve already been working on a draft of complaints in anticipation that we might end up in litigation,” Yost told The Athletic earlier this week, prior to the NCAA denying Bandaogo’s appeal. “Antitrust is basically the idea of restraining trade for anti-competitive balances. And in this particular case, the NCAA is treating Aziz and other similarly situated players in a manner that prevents them from competing and earning NIL money. In our view, it’s an illegal restraint of trade.”

Multiple sources briefed on Bandaogo’s waiver submission, who spoke on the condition of anonymity to discuss the matter freely, said the request included evaluations from multiple medical professionals.

From the perspective of Yost’s antitrust argument, however, the intricacies of Bandaogo’s waiver are essentially irrelevant.

“The NCAA does seem to be kind of arbitrary in applying their criteria for the waiver, but that kind of doesn’t matter in terms of the antitrust question,” Yost said. “And (the NCAA) knows they have a problem because they are down in the halls of Congress trying to get a law passed to give them an exemption to antitrust law. They wouldn’t be doing that if they thought they were clean on this, and they’re not clean.

“Candidly, they’re holding a gallon of gas in their lap and playing with matches.”

Yost got involved specifically in Bandaogo’s case after the NCAA’s initial denial last month, a decision Miller admonished publicly at Big 12 media day, as well as Reynolds’ initial denial.

“The issue at hand is we have two players, and there are others out there in America, who were given guidance when making life decisions last spring to transfer,” Miller said in Kansas City on Oct. 18. “They were given guidance and guidelines by the NCAA as a path to play. They felt that they met those guidelines, they made life decisions based on that.”

The next day, Yost penned a letter to NCAA president Charlie Baker in support of Bandaogo, who was believed to be further along in his waiver process.

“Not only is that decision wrong as a matter of common sense and decency,” Yost wrote, “it is also likely unlawful.”

In October, the NCAA’s Division I Board of Directors announced it would review existing NCAA transfer rules and waiver guidelines, including potential modifications and increased objectivity. Any modifications would not go into effect until the 2024-25 academic year, and the board also affirmed that the NCAA has been applying existing transfer waiver guidelines correctly to this point.

“The NCAA has already acknowledged that its second transfer rules need to be changed,” Abrams said in a statement. “Rather than continuing to harm student-athletes by applying rules that undermine the mental health and wellbeing of students-athletes, the NCAA should allow Aziz and all second transfers to play this season — and it should go back to the drawing board to develop a process that complies with the law.”

From a legal perspective, there are a few options available. If Yost chooses to pursue and file an antitrust suit, that would have a broader scope than Bandaogo’s (and potentially Reynolds’) case, and Yost said he is exploring a possible multistate suit with other attorneys generals, which could result in a federal suit. Bandaogo’s personal representation would likely file an individual suit as well in the state of Ohio, including a request for a preliminary injunction in which the court would order the NCAA to grant Bandaogo immediate eligibility.

The University of Cincinnati, its athletic department and Miller would still have to allow Bandaogo to play under the injunction, a decision that would potentially expose the program to future sanctions under the NCAA’s Restitution Rule, which requires member institutions to certify the eligibility of their athletes. If Bandaogo’s eligibility were ultimately overruled, Cincinnati men’s basketball could face retroactive penalties from the NCAA.

A similar situation occurred at Memphis in 2019 when top NBA prospect James Wiseman received an injunction and Memphis allowed him to play in three games despite the NCAA informing the university that Wiseman was ineligible due to improper recruiting inducements. Wiseman dropped his suit and sat out the remainder of the season before declaring for the NBA Draft.

Wiseman was later handed an irrelevant 12-game suspension; Memphis was charged with Level II and Level III violations, including a $5,000 fine and three years probation, but no punishment for head coach Penny Hardaway.

One potential course of action, according to sources briefed on the injunction process, is that the university could also be named in Bandaogo’s suit, which could further compel the Bearcats to play Bandaogo under an injunction and possibly shield them from future penalty under the Restitution Rule.

Any legal action, whether individually by Bandaogo or in the form of an antitrust suit, could still take as long as a few weeks to be filed in court. The one thing that does seem clear is that Bandaogo’s pursuit of immediate eligibility is far from over.

“If we end up in court, this litigation could end up burning down (the NCAA’s) precious operation. I just don’t understand why they are so against reform, so against competition, so against fair play for these kids,” Yost said. “But if they want to fight, baby, we know how to fight.”

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(Photo: Sam Wasson / Getty Images)