By Amanda Siegrist, Esq. and Nicholas Blosio. Siegrist is an assistant professor of recreation and sport management at Coastal Carolina University. Blosio is a recent graduate of CCU where he studied Recreation and Sport Management. He plans to attend law school to continue his education with a focus in contracts and sport law.
High school baseball star pitcher Andy Oliver was beginning to see his dreams come true when he caught the attention of major league scouts in 2006. Professional teams were approaching him to discuss the possibility of signing out of high school and skipping the college process altogether.
Due to the magnitude of the situation, Oliver and his father sought the expert advice of a local attorney and agent, Tim Baratta. Baratta was present in an advisory role at a meeting between the Minnesota Twins and Oliver. Ultimately, Oliver decided not to accept the $390,000 signing bonus from the Minnesota Twins and instead decided to stick with his original plan of pitching for Oklahoma State University (OSU) on a full scholarship.
In an allegedly retaliatory fashion, Baratta sent invoices to Oliver for his services, as well as informed OSU and the NCAA of the meeting with the Twins. Subsequently, Oliver’s amateur status was investigated and called into question by the NCAA in 2008. The purpose of this article is to explore the relationship between NCAA bylaws and the Uniform Athlete Agents Act (UAAA), particularly in relation to the Oliver v. NCAA case, and to suggest changes that will better protect amateur athletes.
The UAAA governs relationships among student-athletes, athlete agents, and educational institutions. The Uniform Law Commission introduced this act in 2000 as a means to protect the interests of student-athletes and academic institutions from the misconduct of athlete agents.
However, under further examination, the lack of student-athletes’ best interests by way of the direct violation of student-athletes’ right to counsel, the broad, ambiguous and conflicting language in the drafting of the UAAA, and the nonexistence of remedies for student-athletes against agents demonstrates that the UAAA is doing more to protect the National Collegiate Athletic Association (NCAA) than the student-athletes themselves. Furthermore, certain NCAA bylaws that govern student-athletes’ interactions with athlete agents are too broad and can result in more harm than good for that athlete.
The first issue to examine is the direct violation of student-athletes’ right to counsel, specifically by NCAA bylaw 12.3.2 and 126.96.36.199 respectively.
NCAA bylaw 12.3.2. reads as follows:
Legal Counsel. Securing advice from a lawyer concerning a proposed professional sports contract shall not be considered contracting for representation by an agent under this rule, unless the lawyer also represents the individual in negotiations for such a contract.
NCAA bylaw 188.8.131.52 deals with the presence of a lawyer during negotiations with professional teams and states the following:
Presence of a Lawyer at Negotiations. A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the individual. A lawyer’s presence during such discussions is considered representation by an agent.
People are entitled to seek legal counsel, particularly in matters that they are not qualified to handle on their own. The decision to play professionally, specifically before your collegiate eligibility is up, is a difficult and life-altering choice. While the NCAA allows for a student-athlete to seek counsel, they simultaneously put parameters on it. The parameters, coupled with the issue of many sport attorneys also being athlete agents, create an issue that is not easily managed. An athlete agent has expertise and experience in matters of professional sport in regard to position, size, skill, monetary value, injury clauses, depth charts, salaries, connections and more. If a student-athlete can only seek the advice of, but not have that athlete agent present when actually speaking with the prospective team in regards to details of the deal, the counsel is not sufficient.
As previously mentioned, ultimately Oliver decided to attend Oklahoma State University and compete collegiately. As Oliver’s collegiate career progressed, he terminated Baratta’s services in response to their seeking payment for services they rendered to him in 2006. In the wake of the termination, Baratta informed OSU and the NCAA of the details of his relationship with Oliver, disclosing the meeting with the Minnesota Twins. Subsequently, the NCAA called Oliver’s amateur status into question.
In Oliver, the court states:
For a student-athlete to be permitted to have an attorney and then to tell that student-athlete that his attorney cannot be present during the discussion of an offer from a professional organization is akin to a patient hiring a doctor, but the doctor is told by the hospital board and the insurance company that he cannot be present when the patient meets with a surgeon because the conference may improve his patient’s decision-making power” (Oliver, 2009, p. 7).
The current language of bylaw 184.108.40.206 of the NCAA is overreaching in matters of student-athletes ability to seek advisory counsel and consequently harms the student-athlete’s ability to make a sound and informed decision.
The court in Oliver (2009) determined the NCAA bylaw should be void, as it overreaches and is against public policy. The current limitations on advisory counsel set by the NCAA creates potential for young athletes to be taken advantage of by professional teams and/or to make poor decisions about their future. Additionally, it gives athlete agents potential leverage to exploit the student-athlete into signing with their agency in the future or risk eligibility.
The court in Oliver(2009) also reasoned that the NCAA bylaw does not merely govern an attorney who is also an athlete agent, but rather,it governs the respective state’s Supreme Court in which the attorney is barred. The court goes further to state that the NCAA is in no position to do so, claiming:
But no entity, other than that one designated by the state, can dictate to an attorney where, what, how, or when he should represent his client. With all due respect, surely that decision should not be determined by the NCAA and its member institutions, no matter what the defendant claims is the purpose of the rule (Oliver, 2009, p. 7).
Accordingly, NCAA bylaws 12.3.2 and 220.127.116.11 should be void due to its arbitrary, capricious and overreaching limits that are against public policy. However, because the case was eventually settled, the order of this court was vacated and the bylaw was never removed from the NCAA’s constitution. For the sake of the student-athlete, the NCAA’s policy for seeking legal counsel needs to be amended.
Furthermore, the many difficulties in policing athlete agents’ behavior in recruiting collegiate athletes resulted in the Uniform Law Commission drafting the UAAA. Yet, when the original drafting of the UAAA occurred in 2000, there was not much diversity amongst the drafters. In fact, several of the drafters had direct ties to the NCAA and its member institutions. One of the committee members, Charles Ehrhardt, served as the Chair of Florida State University’s Athletics Board and as Florida State University’s representative to the NCAA (Edelman, 2013, p. 168). Another, Harvey S. Perlman, had an “extensive record of service on the Boards of Directors for the NCAA,” as well as past leadership positions on the Board of Directors of the Big 12 Athletic Conference (Edelman, 2013, p. 169). This arguably led to subjective writing in their definitions, specifically of “athlete agent.” The UAAA’s definition of athlete-agent is as follows:
“Athlete agent” means an individual who enters into an agency contract with a student-athlete or, directly or indirectly, recruits or solicits a student-athlete to enter into an agency contract. The term includes an individual who represents to the public that the individual is an athlete agent. The term does not include a spouse, parent, sibling, [or] grandparent [,or guardian] of the student-athlete or an individual acting solely on behalf of a professional sports team or professional sports organization (Uniform Athlete Agents Act, Section 2)
Based on the lack of diversity in drafting, the definition of athlete agent is also left wanting in regards to the interest of the student-athlete. The following suggested language change would curtail much of the self-serving aspects of the current definition, “’Athlete agent’ means an individual who enters into an agency contract with a student-athlete or, directly recruits or solicits a student-athlete to imminently enter into an agency contract. The term includes an individual who represents to the public that the individual is an athlete agent, except in cases where an athlete agent is also an attorney; It is then presumed the party is holding themselves out as an attorney first.”
The removal of “spouse, parent, sibling, grandparent or guardian” from this suggested definition is not to prevent a student-athlete from being counseled by his/her family, but rather to remove exceptions altogether. A student-athlete should not be prevented from having access to counsel in such matters regardless of the nexus in the relationship. It also helps clarify when an athlete who is also an agent is acting as an attorney first. Most importantly, it gives the student-athlete the freedom to full seek counsel when needed. After all, the question still remains, who has the athletes best interest? Is it the collegiate coach who is worried about keeping a competitive team? The professionals who look to steal a player who is young with potential? Or is it the agent who’s sole purpose is to help their client reach their max potential? Therefore, by preventing a student-athlete from seeking advisory counsel in matters of contract negotiation and potential professional careers, when their expertise in these areas can be exceptionally helpful to the athlete, does not fulfill the mission or purpose of the NCAA. While the UAAA aims to better the student-athlete and athlete agent relationship, it actually creates more issues in certain areas and the current language and bylaws on the matter fall short of fulfilling their mission.
Another definition in the UAAA, as well as the NCAA, called into question is the definition of amateurism. Currently the definition “does not allow, among other things, benefits from an agent or prospective agent” or “agreement to be represented by an agent.” (Uniform Athlete Agents Act, Section 2) A suggested revised definition of amateurism that serves to streamline this label is as follows: “Not allow: Direct financial benefits from an agent or prospective agent, except in instances of an attorney in an advisory role to the student-athlete and without agreement to guaranteed future representation by said agent.”
The purpose of amateurism is to ensure uniformity and fairness within the collegiate level of sport. These suggested language changes do not impact uniformity or fairness in regards to an athlete’s commitment or ability to perform at the collegiate level, if they chose to continue to do so. Rather, the language changes merely allow the student-athlete an avenue to receive guidance from qualified authority in the industry, something the NCAA and its member universities are currently lacking.
Lastly, there is obvious unfairness in regards to the disparity in available remedies for the parties involved. In fact, the only party who can claim remedies during a violation of these terms is the NCAA member institutions. Section 16 of the UAAA states, “An educational institution has a right of actionagainst an athlete agent or a former student-athlete for damages caused by a violation of this [Act].” This discrepancy again fails to fulfill the mission of protecting student-athletes from corrupt agents and from having their best interest in mind. If the UAAA were to add language allowing for student-athletes to seek remedy where appropriate, they would help to more adequately fulfill the role of the NCAA. The suggested changes would read as follows:
“An educational institution and/or student-athlete has a right of action against an athlete agent, or in the instance of the institution, against a former student-athlete, for damages caused by an agent’s violation of this [Act]. An educational institution may only have a right of action against a former student-athlete if student-athlete is found to have knowingly violated this Act…”
By doing so, the new definition allows the student-athletes to take action when an agent has taken advantage of them. After all, the student-athlete is often the one who stands to lose the most in these instances, so it is only reasonable they have these rights as well. It also should be stated that by adding the phrase, “knowingly violated this act,” the student-athlete is further protected from being punished for any deceit on behalf of an athlete agent by only holding the athlete responsible in instances where it is proven they knew they were violating a rule and intentionally did so.
In conclusion, certain definitions and bylaws within the UAAA and the NCAA are arbitrary and do not adequately fulfill their intended purpose. By changing the language of athlete agent, amateurism, and certain legal remedies within the UAAA, as well as voiding NCAA bylaw 18.104.22.168, the NCAA would be closer to achieving its goal of protecting its student-athletes and using the UAAA as an effective mechanism to do so.
Edelman, M. (2013). Disarming the Trojan Horse of the UAAA and SPARTA: How America Should Reform its Sports Agent Laws to Conform with True Agency Principles. Harvard Sports and Entertainment Law Journal, 4(2), 145-189.
Oliver v. Natl. Collegiate Athletic Assn. (2008), 155 Ohio Misc.2d 8
Uniform Athlete Agents Act (2000). §2. “Definitions”