Paxton Wants to Play
Kentucky lefty sues his own school
The NCAA's "no agent" rule suffered a blow in February, when an Ohio judge ruled that the NCAA could not punish Oklahoma State lefthander Andy Oliver for having a lawyer represent him in contract negotiations with a professional club. That landmark ruling was vacated in October as part of a $750,000 settlement, and the NCAA wasted no time trying to reassert the "no agent" rule this fall, sending out questionnaires to drafted players who did not sign pro contracts seeking information about their relationships with advisers, and setting up interviews with some players.
Kentucky lefthander James Paxton refused to play ball. Paxton, the highest-drafted player to return to college this year, sued Kentucky on Dec. 2, charging that athletic officials threatened to bar him from playing if he did not agree to meet with NCAA investigators, even though he was not told what rules he was accused of violating. Paxton filed a motion for a temporary injunction seeking to prevent UK from requiring him to interview with an NCAA investigator until Kentucky provides him with written notice of the allegations or charges against him. A hearing has been scheduled for Jan. 15.
Paxton, the 37th overall pick in the 2009 draft by the Blue Jays, did not sign a pro contract before the Aug. 17 deadline and returned to Kentucky for his senior year. He missed practice time in the fall with a minor knee scope and mononucleosis, but he returned to participate in workouts and team activities. His lawsuit says that Sandy Bell, the senior associate athletics director for student services in the UK compliance office, told Paxton that he must submit to an interview with an NCAA representative.
According to the lawsuit, Bell's remarks gave Paxton reason to believe he would be suspended from the baseball team for some period of time whether he consented to the interview or not. The suit also says that athletic director Mitch Barnhart told Paxton's attorney that Paxton would not be able to participate on the baseball team unless he agreed to the interview.
Paxton has hired Ohio lawyer Rick Johnson, who also represented Oliver in his lawsuit against the NCAA. Johnson said he believes the NCAA wants to speak with Paxton about the "no agent" rule—but he doesn't know for sure.
"The NCAA will not tell us why they want to talk to James, but I think it's related to the questionnaire and I think it's all related to the Andy Oliver case," Johnson said. "They're going to go out to show people that they're going to do what they want and it doesn't matter what some Ohio judge says . . . They're the last unregulated monopoly. As a self-governing entity, the NCAA doesn't work. Its members are terrified of it, but they will look you straight in the face and say the NCAA is run by its members."
Sifting Through The Legal-ese
Johnson pointed out that the NCAA came in and asked to interview Paxton—Kentucky did not decide on its own to force him to answer questions. But Johnson claims Kentucky officials are breaking university rules by trying to enforce the NCAA's agenda without giving Paxton due process.
"If they want to charge him with violating a rule, then in order to follow their code of conduct—which includes athletics and other extra-curriculars—they have to give him written notice," Johnson said. "So if they think he violated a rule, they've got to tell him."
Kentucky filed a response two days later, which emphasized neither the university nor the NCAA have made any charges against Paxton. UK also said "the NCAA received information concerning the Plaintiff (Paxton) via a media report and wants to ask Plaintiff about that media report to see if an investigation is necessary." The school said it showed Paxton the media report and explained the investigation process to Paxton and his counsel.
Here's the heart of the issue. Kentucky's response contains a copy of the media account that spurred this investigation, an Aug. 18 report in the (Toronto) Globe and Mail that discusses the Blue Jays' failure to sign Paxton. Toronto's interim president, Paul Beeston, told the paper that he personally handled the Paxton negotiations—through Paxton's adviser, Scott Boras.
"Because it was Scott, the way that you deal, you deal through him," Beeston said in the story. "You don't deal through the family. Now I would prefer to deal with the family and I wonder whether I could have done a better job on it. I kind of criticize myself.
"But I don't think it would have changed things because you're dealing with one of the shrewdest and best prepared negotiators in sports."
Clearly, if Beeston's statement is true, then Paxton violated NCAA bylaw 18.104.22.168, which prohibits advisers from negotiating with professional teams on players' behalf, or even being present during negotiations. No wonder Paxton's camp determined there was a strong possibility he would be suspended if he submitted to the interview.
"UK provided Plaintiff with the information it was provided by the NCAA," the school claims in its legal brief. "UK did not hide anything from Plaintiff. Plaintiff and his counsel cannot seriously claim that they are unaware of the nature of the NCAA's (not UK's) request for an interview."
Indeed, it seems pretty clear that the NCAA wants to interview Paxton to see if he violated the "no agent" rule. But Paxton's camp is banking on the court establishing his right of due process, in accordance with the school's code of conduct. Under that code, Paxton cannot be compelled to give testimony, and his refusal to do so cannot be considered evidence of responsibility for an alleged violation. There is no reason to think Boras or the Blue Jays would testify that Boras represented Paxton in negotiations, so Kentucky would have no evidence firm enough to suspend him.
Kentucky argued that "a failure to participate in an NCAA interview is, on its face, a violation of NCAA rules and could result in sanctions from the NCAA." Clearly, that contradicts the school's code of conduct. Paxton's eligibility likely depends upon which way the court rules on this issue.
Kentucky's filing also included Paxton's signed response to an eligibility questionnaire sent out by the NCAA in August. The 11th question asks, "Have you ever given anyone your consent to negotiate in your behalf with any professional team or league?"
Paxton's hand-written reply is, "No".
Boras told ESPN and BA columnist Jerry Crasnick in the fall that he adheres to NCAA regulations by charging a fee to players that he advises in the draft.
"We are compliant with the NCAA rules by mandate," Boras said. "We have to go to families and charge them for information that we would otherwise not charge for. And we have to go through the bailiwick of having the parents deal with the teams through our counsel, which is crazy."
But as two major league scouting directors told Baseball America in December (and a third told BA last summer), just about every player they draft has an agent who handles the negotiations. That's just how the business works—it's the industry norm.
"There's a very small percentage that don't have any kind of representation, and in those cases we have dealt directly with the family," one scouting director said. "But if there is an adviser or agent present, it really puts a strain on things if they find you went directly to the family without consulting with them on any matter. If there's an agent or adviser involved, that's who you're dealing with. Maybe if it's a very small-time agent, he'll be in the background and the kid will say, 'Let me talk to my adviser.' But that happens once or twice every five years."
Added a second scouting director: "They're agents, bottom line. You want to throw 'adviser' on it, whatever, but they're acting on the players' behalf. That's not just with the first pick, that's with everyone—even seniors now. That's exactly how it works, and they (NCAA officials) know that. If they don't then they're burying their heads in the sand."
Should Paxton's bid for a temporary injunction fail, he will have three choices:
• He can submit to the interview and dispute Beeston's account.
• He can submit to the interview and admit to breaking the "no agent" rule, then accept whatever penalty is meted out.
• He can fight the "no agent" rule in court.
It's worth noting that since Vanderbilt lefty Jeremy Sowers was suspended for six games for violating the "no agent" rule in 2002, the NCAA has quietly changed the presumptive penalty for breaking the rule to permanent ineligibility. So admitting that he violated the "no agent" rule seems like an untenable option for Paxton.
You can bet that Kentucky is hoping Paxton chooses simply not to rock the boat.
"Contrary to several media reports, James Paxton's scholarship money and status on the team has never been in jeopardy," the school said in a statement two days after Paxton filed his lawsuit. "At no time has a change been made in James' status on the team or his receipt of services available to student-athletes. He was, is and will continue to be a member of the University of Kentucky baseball team."
Johnson saw a logical flaw in that statement.
"As of yesterday," Johnson wrote in an e-mail response the same day Kentucky made its statement, "in a meeting between myself and my co-counsel and James with UK's outside counsel, general counsel, athletic director, and assistant athletic director, we were told on-the-record that James, while still eligible to participate in intercollegiate athletics, would be withheld from such participation, unless and until he submitted to an NCAA interrogation, but that they were not 'suspending or disciplining' him, since no allegations had been made against him and no findings had been made against him.
"If the number one student-athlete on the team can't play, when he's physically and mentally able to play, exactly what does membership on the team actually mean?"
Casting A Wide Net
Paxton isn't the only player who has been targeted by the NCAA this fall. Texas Christian coach Jim Schlossnagle confirmed that TCU freshman lefthander Matt Purke, an unsigned first-round pick in June, had to fill out the NCAA's questionnaire and finally got official clearance from the NCAA the same week Paxton filed his suit.
The scuttlebutt from coaches and agents around the country was that most highly drafted players—and plenty of late-round picks—who did not sign pro contracts had to go through the process. One notable exception is Arizona State senior lefthander Josh Spence, an unsigned third-rounder.
"To be honest, nobody's contacted me, but I don't have an adviser," Spence said. "When I went through the draft process, I went through it myself."
As one of the very few high-profile players without an adviser, Spence is also one of the very few high-profile players who has not violated the "no agent" rule. But by sending out a questionnaire, the NCAA forces players with advisers—the vast majority of drafted players—to lie about the nature of their relationships with advisers in order to be ruled eligible.
"(The questionnaire) illegally and unethically seeks attorney-client privileged information, and it misstates the NCAA's bylaws and what is required of student-athletes, who are not required to disclose this level of information, sign releases, etc., without any probable cause or due process," Johnson said in an e-mail to Crasnick earlier this fall.
In mid-December, there were indications that the union could get involved on this issue. MLB Players Association executive director Michael Weiner told the Sports Business Journal that the NCAA's recent inquiries are "unfair."
"This is an area of concern for the union," Weiner said. Asked whether the MLBPA could take action over the matter, he said, "We will consider our legal options."
Some coaches told Baseball America this is the first year they have seen the questionnaires, but others said they have seen similar questionnaires over the past few years. One component of the questionnaire that is certainly new this year is a waiver for players to sign that would allow the NCAA to forward information to MLB clubs. Several scouting directors confirmed that the NCAA had contacted them about all of their unsigned players.
As of yet, the NCAA has not agreed to a request by Baseball America for an interview with Stephen Webb, its associate director of amateurism certification.
"From what I can gather, they were doing the same with all 30 clubs," one scouting director said. "They would say, 'Hey, you didn't sign these guys—did they have an agent?' The questions were fairly generic. I can tell you I really didn't tell them anything.
"I don't think these players did anything different than any other players that we've dealt with, so they shouldn't be singled out or punished more than anyone else. I think it's lousy that the NCAA is trying to put the onus on teams to basically become snitches. If this is so important to you, then to me Major League Baseball and the NCAA should get together and basically take the onus off of clubs. The downside of me cooperating with the NCAA is that myself and my club are branded as snitches, and what agent would ever want to deal with me again?
"I understand that they want to protect the integrity of their game, they don't want it to become a cesspool of backhanded shady dealings, but it puts clubs in a very difficult spot to come to clubs and say, 'Please rat out these players you drafted, we'll punish them for you and make them ineligible.' We're baseball guys, and we want the kids to play."