CLEMSON — When Mark Peper and Darren Heitner Facetimed Tristan Smith Friday morning to tell him his college football career was not over – they thought his screen froze up.
Clemson’s wide receiver was not responding to the news his two lawyers just gave him. He just stared into the screen.
“About 30 seconds in, we thought his screen was frozen because he just was not responding,” Peper said. “He was just so overcome with emotion. He was appreciative, but he was crying. He was just so gracious and thankful. It was a really cool moment for us as lawyers.
“We do not get to celebrate very much.”
Peper, Heitner and Smith were celebrating their victory over the NCAA, one that gives Smith another year of eligibility.
Smith was granted a temporary injunction from the NCAA’s earlier decision denying him another year of eligibility. The injunction was handed down on Friday from South Carolina’s 13th Circuit Judge Jessica Salvini in Pickens County.
The LaGrange, Ga., native spent his first two years of college in the JUCO ranks before transferring to Southeast Missouri State in 2024. He then transferred to Clemson last year, finally getting the opportunity to play big-time college football.
After similar cases were waived by the NCAA, Smith and Clemson were hopeful the NCAA would give him a similar outcome. However, the NCAA denied his request, forcing him to file a complaint this past January at the Pickens Country Courthouse.
“He wants to be treated the same as other similarly situated athletes, right? That is what the case boils down to and that is where we checked the box with the judge,” Peper said. “We specifically cited at least two others, but there are dozens of others that did not qualify for the blanket waiver, like Tristan, unfortunately, and will not be grandfathered in assuming this five (years)-to-play-five legislation gets passed this summer.
“So, you have all these kids that are falling through the cracks. Look, if you played four years to play (Division I) ball, that is just tough. But if you went to JUCO and then jumped (to Division I), you technically still have it on the clock. They ought to apply the bylaws evenly all across the board.”
This is where Smith’s legal team feels they were able to get Salvini to understand he was in a unique situation and was out of options at no fault of his own because he had been put in a class the NCAA does not care about.
“They can do that, but they also have to treat everyone the same. They have to treat people fairly,” Peper said. “So, when you start picking and choosing which athletes to grant waivers to that have the same exact fact pattern, that is the definition, the legal definition anyway, of arbitrary and capricious, and our law does not allow them to do that.”
In other words, the NCAA was trying to fit a square peg into a round hole and Smith’s co-counsel had none of it. The good news is, if the 5-in-5 legislation is passed late this month, cases like Smith’s will likely not fall between the cracks.
The age-based model legislation is to start a student-athlete’s eligibility clock upon initial full-time enrollment in college or at the beginning of the academic year following their 19th birthday, whichever occurs earlier. If the 5-in-5 is adopted, it will be applicable for all sports.
“It will eventually help,” Peper said. “I think the NCAA is smart to do what they have done so far, which is ‘Let’s go ahead and address these problems that we have through our waiver.’ So, the first thing they came up with is ‘If we go to five-to-play-five, we put in certain eligibility requirements, we are getting rid of waivers.’
“I think that will help. Some athletes may not agree with me… But at least everybody knows what rules we are playing by moving forward, assuming it passes, which I suspect it will. It will take business out of my pocket, but that is okay. At least we now have a set of rules that everybody understands.”
Peper, who played college soccer at Wofford, says the 5-in-5 will clean up a lot of the NCAAs messes and will benefit everyone – the student athletes, the schools, the NCAA and the fans.
“Back in the day, with the rare exception of a medical redshirt and stuff like that, when you were a junior you knew you had two years left,” Peper explained. “You had this year and next and that was it. Everybody knew the rules. With all these bylaws and waivers, it was like, ‘Wait a minute. What are the rules?’
“Somewhere along the way, this thing got off the beaten path. So, I am encouraged that, assuming this legislation is passed, everybody will understand the rules… and everybody wins.”
And before the 5-in-5 legislation is passed, Smith is already a winner.
“We are happy for him, mainly,” Peper said. “It is very rare you come across a kid or client who has a better story than Tristan does, right? Who deserves it more than him? Everything from what he has been through and how close he and his mom are and the family dynamics and all of that, good kid, good student and all that jazz.
“So, to get a victory for him, personally, is a huge win for us as lawyers.”