Oliver v. NCAA: The Impact of the Settlement

oliver2The case of Oliver v. NCAA ended with a settlement last week, two weeks prior to the highly anticipated trial of the case.  The details of the case and settlement have been covered in great detail by Biz of Baseball, Baseball America and Ultimate Sports Insider.  So rather than duplicate these fine articles, here is my take a few of the commonly asked questions about this settlement.

What impact does the settlement have on the NCAA’s rule regarding agents in baseball?

The NCAA keeps it rule, which allows baseball players to seek advice from “advisors” but does not allow player to utilize an agent or an attorney to negotiate on his behalf.  This rule is akin to allowing parties in a contract negotiation to prepare for negotiations with their attorneys, but then ban attorneys from the actual negotiation.  The rule is apparently intended to keep agents away from amateur athletes.  However, even attorneys who are not registered agents fall under the definition of an agent if negotiating on behalf of a player.  Oliver’s attorney, Richard Johnson, believes that the NCAA would be wise to drop the rule notwithstanding the settlement:

“So the NCAA can continue to act with its typical arrogance and try to continue to deny student-athletes the right to counsel, or it can realize that it will lose 100/100 of any such future lawsuits over this rule, since no court is going to allow the NCAA to regulate lawyers or prohibit nonmember student-athletes from retaining counsel (Can you imagine what would happen if they had a rule that its members couldn’t have counsel when negotiating their media rights?).”

Why did Oliver settle?

The settlement was likely driven by two factors: time and money.  Oliver recently signed with the Detroit Tigers and is about to begin his professional career.  It does him no good to have a trial, and a likely appeal, hanging over his head.  Perhaps more importantly, Oliver wants to pitch in the major leagues.  Becoming the poster boy for standing up to the NCAA might not further those goals, bringing unwanted attention and pressure, and possibly becoming a distraction.

As a litigator, I can attest that the outcome of most cases is determined by money.  Trials are prohibitively expensive, not to mention the prospect of an appeal.  And trials offer no guarantees.  This settlement, which reportedly will pay Oliver $750,000, guarantees Oliver a monetary settlement, free and clear of any appeals.  Attorney Johnson, who referred to the NCAA as “a billion dollar bully,” knew that the NCAA would file every motion, and seek every legal alternative, all requiring him and client to spend more time and money litigating the case:

“…without a settlement here, we would have won the trial, and probably received a very large verdict, in my opinion, and then we would have been stuck in 3-5 years of appellate hell.”

For the NCAA, the settlement can be chalked up to what it would have spent to try this case and pursue any appeals, and likely takes into consideration the NCAA’s chances of prevailing. 

What Precedent Does this Case Set?

Although our civil court system is based upon case law and precedent, precedent is often hard to come by in sports cases.  Plaintiffs short on cash willingly settle once their goals have been achieved and well-funded defendants settle once they have been convinced that they cannot prevail, all to the detriment of creating precedent.  Attorney Johnson alluded to this predicament in Oliver v. NCAA:

…the NCAA is a billion dollar bully, we could not fight this battle alone forever, nobody came to our aid, and so we did what was in Andy’s best interests, which, unfortunately, is not in the best interests of the other 360,000 or so student-athletes nationally, which I regret.

Despite the settlement, Oliver v. NCAA has provided a roadmap for challenging the NCAA’s rules on agents in baseball.  The case also has illuminated many issues concerning the NCAA, its rules and the effect of those rules on student-athletes.  Oliver and Attorney Johnson deserve considerable credit for their success taking on the NCAA and taking the case this far.  Although the court ruling invalidating the NCAA’s amateurism rule in college baseball has effectively been erased from the books, this case will not be erased from the memories of those interested in amateurism and the NCAA.

For more of Connecticut Sports Law’s coverage of NCAA v. Oliver, see the following articles:

Oliver v. NCAA: Court Throws Out NCAA Baseball Lawyer-Agent Rule

Oliver v. NCAA: Will Agents Infiltrate College Baseball?


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