The Bylaw essentially states that a student-athlete will be ineligible if an agent markets his or her athletic ability.
by Jordan Kobritz
The NCAA is at it again. Last week they suspended Oregon State University pitcher Ben Wetzler for 20% of the Beavers’ season for doing what any person in this country not only has the right to do, but should do: Have the assistance of an advisor prior to making a life-changing decision.
Wetzler, who was a sixth round draft pick of the Philadelphia Phillies last June, violated what is referred to as the “no-agent rule” contained in Bylaw 18.104.22.168. The Bylaw essentially states that a student-athlete will be ineligible if an agent markets his or her athletic ability. In its interpretation of the Bylaw, the NCAA specifically states that a student-athlete may seek the advice of an “attorney” or “agent”, but that “advisor… may not negotiate on behalf of a student-athlete or be present during discussions of a contract offer, including phone calls, email or in-person conversations.”
Any first year law student would be embarrassed to use the language adopted by the NCAA. Even though the organization employs over 400 people – including way too many attorneys – at a cost of more than $35 million per year, it treats English as if it’s a foreign language. The NCAA uses the words advisor, attorney and agent interchangeably, which of course they aren’t. Is your parent an advisor? What if your parent happens to be an attorney or an agent and listens in on a phone call, is that a violation of the Bylaw?
Furthermore, the NCAA knows it’s on shaky – actually, illegal – ground by trying to limit an individual’s right to counsel. That issue was decided in 2009 in the Andy Oliver case. Oliver was drafted by the Minnesota Twins out of high school, but after he and his attorney/agent negotiated with the team, he decided to accept a scholarship offer from Oklahoma State. When he changed agents in college, his original agent turned him in to the NCAA who declared him ineligible.
Oliver sued and an Ohio court reinstated him, ruling that the NCAA had no right to dictate to an attorney how and under what circumstances he could represent a client. Knowing they would lose at a hearing on damages, the NCAA elected to cut its losses, settling the case for $750,000. But the governing body refuses to change its ways.
The NCAA’s press release on Wetzler’s suspension provides a window into the organization’s bullying tactics. The first paragraph begins, “According to the facts of the case, which were agreed upon by the school and the NCAA…” Notice the absence of Wetzler’s input. That issue came up in the James Paxton case in 2010. Paxton was a left-handed pitcher for the University of Kentucky when he was alleged to have violated the no-agent Bylaw after being drafted by the Toronto Blue Jays. He refused to attend a hearing on the matter because he was denied the assistance of a lawyer, even though the NCAA and his school were represented by counsel.
You and I might think everyone has a constitutional right to an attorney, but the NCAA has been allowed to operate under its own set of rules. And the U.S. government has a problem with the deprivation of human rights in Third World dictatorships?
The NCAA isn’t the only villain here. Wetzler’s agent should have known better than to participate directly in negotiations with the Phillies. There are ways – albeit farcical in nature – to represent a client without violating the NCAA Bylaw. For example, agents have been known to camp outside the meeting room during negotiations between their client and a professional organization. If their client wants/needs advice, they merely have to excuse themselves and go next door for consultation.
The Phillies, who turned Wetzler in to the NCAA, come across as spiteful and vindictive. They lost the draft pick and the signing bonus when Wetzler elected to return to school, but receive no benefit from his suspension.
If the NCAA really had the interests of student-athletes in mind, they would encourage them to seek the best advice possible when weighing a decision to sign a professional contract. But that wouldn’t be in the best interests of the NCAA or its member institutions. What’s best for them is to treat student-athletes like mushrooms: Keep them in the dark for as long as possible.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor in the Sport Management Department at SUNY Cortland and maintains the blog: http://sportsbeyondthelines.com Jordan can be reached at firstname.lastname@example.org.© Copyright 2014 Tanna K, All rights Reserved. Written For: Tinytown Unleashed