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A recent New York Times Op-Ed about a “hockey exemption” to the NCAA’s prohibition on student-athletes hiring agents made it seem as if agents, schools and athletes openly flaunted the NCAA rules in college hockey. The author, Joe Nocera, argued that the NCAA looked the other way when it came to hockey agents because the use of agents is “ingrained in hockey culture.”
But is that true? Is the NCAA ignoring the blatant use of agents in hockey? If so, why? Do college hockey players really enjoy a special exemption from the NCAA amateurism rules? To answer these questions we turned to Legal Blitz friend and veteran sports lawyer Dan Fitzgerald, an associate at Brody Wilkinson and publisher of CTSportsLaw.com. Fitzgerald frequently provides counsel to clients concerning legal issues that arise in amateur, collegiate and professional athletics.
It is my understanding that the NCAA has a flat-out agent ban in that student athletes or soon-to-be student athletes can not sign with or have any contact with an agent. Is that correct? What is the policy?
Rule 12.3 of the NCAA Manual covers agents. Student-athletes are prohibited from entering into an agreement, written or oral, with an agent for future representation; accepting transportation or other benefits from any person who represents any other person in the marketing of his or her athletic ability; and accepting transportation or other benefits from an agent who has indicated that he or she has no interest in representing the student-athlete and does not represent athletes in the student-athlete’s particular sport. Student-athletes may receive legal advice from an attorney, so long as that advice does not involve direct negotiations for a professional sports contract with a professional sports team.
If a high school athlete is weighing the option of turning pro vs. going to college, particularly in hockey or baseball, who are they supposed to seek advice from?
Student-athletes can seek advice from parents, former coaches, so-called advisors (providing NCAA rules are not violated) and attorneys. Attorneys, however, may not have contact with the professional sports team to discuss a contract offer.
It seems as if it would be in the best interest of the student-athlete to get professional career advice before making such a huge decision, why is the NCAA against that?
In my opinion, the NCAA is fine with a student-athlete receiving advice. However, the NCAA is extremely protective of the concept of amateurism. Once a student-athlete has an attorney or agent negotiating with a professional team on his or her behalf, the student-athlete’s amateur status is compromised.
The NCAA does permit schools to form a Professional Sports Counseling Panel to assist student-athletes with such decisions. These panels may review proposed contracts, provide advice concerning the purchase of disability insurance, meet with representatives from professional teams and assist the student athlete in the selection of an agent. For example, Warren Zola leads Boston College’s efforts in this area and has been extremely effective in this role.
What is your take on the rule? Should it be changed?
I do not think that a parent or student-athlete should be negotiating directly with the seasoned negotiators of a professional team. An attorney should handle those negotiations. If the student-athlete and the professional team do not reach an agreement, the student-athlete should be free to compete collegiately. Also, it is problematic that the NCAA limits the extent to which an attorney can advocate on behalf of his or her client, an issue that was discussed in Oliver v. NCAA.
I know you are a leader in student-athlete rights. What rights do they have to seek advice and make informed decisions?
Student-athletes have some rights to seek advice under NCAA rules, but one could argue there are too many restrictions placed upon them. Ultimately, college careers are short and student-athletes find it more beneficial to play within the existing rules rather than challenge them.
The so-called “hockey exemption” is interesting. Could the NCAA start enforcing its rules on hockey at any time or is there some legal mechanism by which the accepted practice trumps the rules on the books?
I don’t think there is a hockey exemption so much as a lack of reporting. It is my understanding that the NCAA investigates allegations that are reported by its members, conferences and others, but is not proactively working to uncover violations. If a student-athlete makes a promise to an agent to hire that agent when the student-athlete turns pro, who is going to report that to the NCAA? The student-athlete won’t, because he or she could lose eligibility. The agent typically won’t report it, as the agent would be in violation of NCAA rules and perhaps anti-agent laws. A professional team that negotiates with an agent may not report it either, as it might eliminate their chances of signing the student-athlete. The case of Oliver v. NCAA is interesting in this regard, as Oliver’s former attorney-agents reported him once he decided to use a different agent.
I’ve noticed the growth of sports consulting agencies that supposedly help high school students navigate the recruiting process. How does that not violate the anti-agent rules?
These agencies typically do not market an athlete’s services in exchange for compensation. If an agency receives compensation for placing a student-athlete at a particular school as a recipient of financial aid, there would be a violation of NCAA rules.
Is there a danger to college athletes that get free advice from an agent expecting that to turn into a paid, professional relationship who then end up signing with a different agent? Could they be sued by the first agent?
First, there is danger that the student-athlete could be deemed ineligible if there is a promise of future representation. Second, an agent could claim an oral or implied contract with a student-athlete for representation once the athletes turns pro. But there is minimal risk for the student-athlete, because an agent would effectively admit breaking NCAA rules as well as certain agent laws that may be in existence in a particular state.