“A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.” -NCAA Bylaw 1.3.1
Amateurism, one of the NCAA’s guiding principles, is perhaps one of its most controversial. In a time of lucrative television contracts, football’s profit-based BCS and players that leave school immediately after their last game to prepare for careers in professional sports, the NCAA nevertheless clings to a notion of amateurism that is to put it mildly, antiquated. There is, and will always be, a very small percentage of athletes for whom their collegiate sport will become their professional vocation. As further demonstrated in Oliver v. National Collegiate Athletic Association, the NCAA has difficulties applying its notions of amateurism with this select group of athletes.
In Oliver, Andrew Oliver, a star pitcher for Oklahoma State University, sued the NCAA in Ohio state court, in connection with a NCAA suspension for improper conduct with an agent. The rule that Oliver allegedly violated prohibits athletes from hiring agents or attorneys to directly negotiate with Major League Baseball (MLB) teams, although athletes are allowed to hire agents or lawyers for advice. Bylaw 184.108.40.206 reads as follows:
A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (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 [which is not permitted].
With respect to the Rule, the Court found as follows:
The Rule Improperly Attempts to Regulate Attorneys
Every attorney in every state has a duty of loyalty and diligence to their clients. However, according to the Court “[t]he process advanced by the NCAA hinders the representation provided by legal counsel creating an atmosphere fraught with ethical dilemmas and pitfalls that an attorney consulting a student-athlete must encounter.” Essentially, the NCAA rule forces an attorney to make an impossible choice: advocate for his or her client and risk the eligibility of the client or follow NCAA rules, requiring an athlete or parent to negotiate directly with a seasoned negotiator for a MLB team. The Court found that only the state in which the attorney is a member of the bar, and not the NCAA, can regulate the actions of that attorney.
The Rule Was Not Regularly Enforced
The reason that the Oliver case came to pass, was that Oliver dismissed his attorneys to hire mega-agent Scott Boras. Oliver’s attorneys tried to collect a fee from Oliver, and when unsuccessful, they reported Oliver for violating the Rule. (See Court’s opinion for full discussion of the facts). Obviously, had Oliver not been saddled with disgruntled former attorneys, the issue never would have seen the light of day. The Court found that the Rule was being enforced selectively, and in Oliver’s case, the enforcement of the Rule was part of the exploitation of the student athlete. One can assume that the Rule is broken on a consistent basis, but the players, attorney and/or agents and MLB teams have little motivation to report such apparent violations.
The Court got it right with respect to the role of an agent or attorney. Can you imagine any person or any business, negotiating a million dollar contract without an experienced attorney? How about an 18 year-old, or his mother or father, negotiating a contract with an experienced negotiator from a MLB team? Is that playing field level? Further, how does it make sense for the athlete to hire an attorney for advice, yet not use the services of the attorney during contract negotiations, when the stakes are the highest and the attorney’s skills are needed the most?
The NCAA argues that the Rule helps to retain a clear line of demarcation between collegiate and professional sports. But how does the NCAA deem the student-athlete who hires an attorney, but refrains from using that attorney during contract negotiations, an amateur, yet claim that Oliver, by having an attorney in the room during negotiations, went beyond the bounds of amateurism? Any person, organization or business should be permitted to use an attorney during contract negotiations. If that doesn’t mesh with the NCAA’s definition of amateurism, that definition should be re-examined.
Note: The issue of amateurism is certainly not the only noteworthy aspect of this case. Stay tuned for additional analysis on Oliver v. NCAA. Also see Alan Milstein’s post on the Sports Law Blog and Professor Tassos Kubarakis’ post on the National Sports and Entertainment Law Society for opposing viewpoints on the Court’s decision.