Emasculating The NCAA

Let my people go.
If the NCAA loses I'm gonna move to hire this guy to help open up the watergates floodgates and serve as my counsel advisor.

From what little I read of the case, the poor kid is caught between ruthless lawyer/agent/advisors who got him in trouble getting him suspended, first indefinately, then a year, now 16 games, all for not turning professional.

I'm not familiar with the case, but I don't see what authority a court would have to tell the NCAA what its rules would be.

I do wonder why the NCAA discourages a young man from getting help in making the decision of whether to turn pro vs. stay in school. It's OK to meet with the pro team representatives, and to discuss deal terms with them, but only if you promise not to get advice from someone whose knowledge could be helpful to you?

You'd think the MLB teams were paying the NCAA under the table, in order to assure that they had all the power in the negotiations.

Or, are they?

Dad04,
The suspension is not now 16 games, that is how many he would be allowed to play this year with a 70% suspension. For the exact same infraction in 2002 the NCAA suspended Jeremy Sowers 6 games. The difference? Sowers didn't air the dirty laundry in public by suing his advisor and the NCAA.

Midlo,
The court has said that if Oliver can prove his case, then the NCAA would be liable for interfering in a legal contract between the player and the school, hence the potential for detoothing the NCAA through athlete litigation, something the NCAA has been able to dodge for years.

It's interesting to note however, that the NCAA in its panic has filed suit against its own member institution that they are supposed to protect from litigation.

I'm not a lawyer but do play one in local establishments occasionally...(along with judge, juror and penalty phase enforcer...although at this age, I fear my mind is writing checks my body can't cash anymore)

quote:

Originally posted by Midlo Dad:
I'm not familiar with the case, but I don't see what authority a court would have to tell the NCAA what its rules would be.

I do wonder why the NCAA discourages a young man from getting help in making the decision of whether to turn pro vs. stay in school. It's OK to meet with the pro team representatives, and to discuss deal terms with them, but only if you promise not to get advice from someone whose knowledge could be helpful to you?

You'd think the MLB teams were paying the NCAA under the table, in order to assure that they had all the power in the negotiations.

Or, are they?

I agree, I can't see how a court of law can rule against a rule that is clearly established.
The rule is that you can not have an agent negotiate for you, which occured, obviously.
What the NCAA needs to do is to have a clear cut definition of the consequences, across the board for everyone. Not 6 games suspension for you and 16 for you and none for you.
JMO.

I don't see how the body making rules can be deemed to be "interfering" with a contract between two parties, each of whom are already obliged to follow the rules. Besides which, the only contract in place is the NLI, which requires the player to abide by NCAA rules, too.

Sounds like the judge let his heart rule his head. That happens some times.

And that's why there are appeals courts.

I doubt the NCAA would let any ruling stand over time. It has an institutional interest in protecting its turf and will thus probably litigate this to the ends of the earth. Best hope for this player would be that the lower court's injunction would stand up pending the appeal, and the season might end before the appeals court ruled on it. Or, maybe they can just settle the darned thing on a more sensible basis.

All of this is to say, I suspect the law favors the NCAA's power to make and enforce rules. That doesn't change my opinion that the NCAA's rule in this instance is stupid and unfair and should be changed.

Here is what the judge said when he denied the NCAA motion to dismiss on 12/12/08.

"If the NCAA is found to have breached a contractual agreement involving the implied contractual obligation of good faith and fair dealing the Plaintiff could be entitled to compensatory and even puntive damages. This court determines that Plaintiff has stated claims for breach of contract that if successful would permit relief to be granted. After thorough review of the Complaint, this Court concludes that the Plaintiff has sufficiently pled the elements of tortious interference with a contract and if proven the Plaintiff's relief would be granted."



Midlo,
A question for you (or any scholarly juris doctorate), please. When you state that the law favors the NCAA'a power to make and enforce rules, what if the plaintiff can prove that NCAA enforcement is arbitrary and even shows vengence? Is this an avenue for recourse alone? Does the law require the NCAA (or any governing body for that matter) to be fair in its penalty phase?

By no means am I an expert in law but couldn't they get the NCAA for some form of discrimination? You punish this one person X number of games but this other person a lesser number of games for the exact same offense. Now that is what seems unfair to me and could hold up in court.

quote:

Originally posted by TPM:
The rule is that you can not have an agent negotiate for you, which occured, obviously.

If I could just borrow your quote here TPM. Others have said this as well which prompts my question; how do we know the "advisors" negotiated anything? I believe everything I've read said that they were present during a meeting and THAT was the rule violation and reason for the suspension. But I don't recall there being mention of any actual negotiations. Maybe I missed it?

Having said that, what is the harm in having an "advisor" (your priest? Uncle Tony? Grandma Edna? High School coach) present in such an important meeting? It seems like an unfair advantage for the MLB team to me.

Well, here are the actual rules regarding "lawyers", negotiations, etc. Note particularly the second one.
"12.3.2 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.
12.3.2.1 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 (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."

So, by rule, a lawyer can't even be in the same room. Furthermore, in my opinion, the word "lawyer" here doesn't mean just a person admitted before the bar, but rather means any person other than a parent or guardian. I think the rule uses the word "lawyer" to forestall a player saying "That's not my agent, that's my lawyer."

Fungo wrote in a related thread that his son's advisor was in the room but didn't interact directly with the pro organization furing negotiations. I think the rule is clear that this could be considered a violation.

I thought perhaps that this and related rules were carry-overs from a by-gone era, but upon searching, it turns out that in 2006, a revision was proposed to tighten the rule further:
"12.3.1.3 Advisor. An individual shall be ineligible per Bylaw 12.3.1 if he or she has agreed (orally or in writing) to use the services of an advisor (financial or otherwise) who also serves in any agent capacity related to marketing any individual's athletics ability or reputation)."

The football and basketball committees supported this proposal, but fortunately the academics/eligibility cabinet recognized the likelihood that players would end up getting uninformed advice.

The inference I draw is that some constitutiencies within the NCAA see value in keeping players in the dark. A less attractive pro contract means a better chance that the player will choose college.

Has anyone else admired Shakespeare's simple solution to litigation?

.....Now where is a good lawyer joke when needed?

Let's start with a couple:

1. A Wash DC bumper sticker reads:

"Support Your Local Lawyer-Send Your Kid To Medical School."

2. "If law school is so hard to get through, how come there are so many lawyers?"

Bear, Shakespeare's quote was a compliment to attorneys if read in context. An overthrow of the government was being planned and they thought the lawyers would figure it out, hence the quote, "First, let's kill all the lawyers."

Actually the suit is at the motions stage where the Court is deciding if the allegations, if proved, are sufficient to state a viable case. The evidence has yet to be heard.

Never assume the NCAA is an athlete's friend. When football scholarships were changed years ago from guaranteed 4 year full rides, to one year renewable at the school's option, any pretense of supporting the athlete was blown away. When the NCAA told an aspiring country singer he can't play college sports if he is going to.... prepare yourself for shocking behavior here... be selling CD's of his songs,for actual money, with his picture on the CD case, you don't have to wonder.

The NCAA deserves all the abuse it gets and you can bust lawyers' chops all day long, but the only thing that will ever change the attitude will be some large figure verdicts. Money they understand. Unfortunately, as is true with so many things, if you want to see the real issue, follow the money. Sad but true.

The kid is being punished for something that happens dozens, maybe hundreds of times every summer.

One of my sons teammates was drafted. He was quoted in the paper regarding his contract negotiations saying "...well, my advisor is handling all of that." I got word to him not to say that anymore.

It's hard to say how one state's court would come down in this kind of thing, because there are important differences in the law from one state to the next -- even in something as basic as contract law.

Virginia, for example, does not recognize an implied covenant of good faith in a commercial contract. It also does not permit punitive damages in a contract case. So apparently there is law in play in the state where this litigation is taking place that is beyond my ability to comment.

Discrimination, though, is permitted as long as you don't discriminate on a prohibited basis, e.g., race, gender, age, etc. Mere inconsistency in results is not illegal discrimination.

The lawyer rule, I would guess, is designed to prevent agents who are lawyers (and there are many agents with law degrees) from skirting the anti-agent rule.

I don't know that the NCAA has any obligation to protect any member institution from litigation. I would guess that, to the contrary, the NCAA will initiate litigation itself if one institution acts contrary to the benefit of all (which unfortunately is measured in terms of whether the NCAA's rules are being followed in the NCAA's estimation).

Whether the NCAA can ultimately win or not, I hope something happens to bring fundamental fairness to the player's situation. Increasingly I see the NCAA as an organization stocked with people on a personal power trip, and their supposed concern for the student-athlete is little more than a pose struck for purposes of self-congratulation.

It's one thing to say an amateur athlete cannot take anything from an agent. It's quite another to deprive someone of experienced advice or even legal advice THAT HE MAY EVEN BE PAYING FOR (or would be willing to pay for if permitted), when he's in negotiations with someone with far superior knowledge in the kinds of dealings at hand.

The rule as it exists works primarily to let MLB (and other pro) teams get the upper hand in negotiations through superior knowledge. I see no interest of the NCAA, any college, or any student-athlete in having such a rule. If this case results in someone from the NCAA having to sit in the witness chair and defend its power trip rules, under oath and under cross-examination, I'm all for it. But I'm not optimistic.

quote:

Originally posted by hokieone:
Bear....

Shakespeare's quote ....."First, let's kill all the lawyers.".....

For many if not all Shakespeare lovers, a few baseball sayings are derived from such.

And as such, lovers will quickly recognize your quote is not properly nor entirely accurate, yet for me, close enough.

A "pearl" in baseball has roots to the Merry Wives of Windsor Act 2, scene 2, 2-5 "Why then the world's mine oyster", whereas "The world's my oyster" has become merely a conceited proclamation of opportunity.

Other few favs include:

There have been only two geniuses in the world. Willie Mays and Willie Shakespeare.
....Tallulah Bankhead

Pitchers, like poets, are born not made.
....Cy Young

and my personal favorite:
Three more saves and he ties John the Baptist.
.....on Bruce Sutter

Any news on the court proceedings?

We expect to hear something late this week.

It has been broken out into two separate issues, one the judge will rule on this week, the other a jury will get to hear sometime in the near future.

Seems like the NCAA didn't do itself any favors by reducing the suspension. That is arbitrary in and of itself.

Interesting discussion. Thanks.

Olivers attorney finished presentation yesterday, the NCAA starts today. No court is scheduled for Friday but the NCAA attorneys expect to close Monday. The judge may rule immediately from the bench or take it under advisement and rule later. The date for the jury trial of the damages portion should come immediately after the ruling on this phase.

What if the lawyer is a step-parent and not a "legal" guardian?

What if the parent is a lawyer, hasn't the rule treated the players with parents and those without in a discriminatory fashion?

What if the parent is an agent?

As reported at Rivals.com baseball by Kendall Rogers in an email from Olivers lawyer...

Today, the court of appeals dismissed the NCAA's appeal of the declaratory judgment and permanent injunction entered in favor of Andrew A. Oliver on February 12th; yesterday, the trial court scheduled the jury trial on Andy's remaining breach of contract and tortious interference with contract claims against the NCAA for October 19th.

The NCAA needs to lay down on this one. Just read this article or send it to the judge.

College athletes should be compensated anytime their image or name is used where others profit from it.

http://www.usatoday.com/sports...arketing-cover_N.htm

Go Andy!!!!!

OS8,
Anyone who says ethics is in a downward spiral, can't read a simple line graph that shows alternative revenue streams going up and the converse simultaneous trend of ethics.

The NCAA teaches us so much.