Secret Agent Deals
NCAA has rules on agents, but they're rarely enforced
An individual shall be ineligible for participation in an
intercollegiate sport if he or she ever has agreed (orally or in
writing) to be represented by an agent for the purpose of marketing his
or her athletics ability or reputation in that sport.
— NCAA Bylaw 12.3.1
"Every single player that we deal with—I don't care what round you're talking about—has representation, has an agent."
— An American League scouting director
Deep into the night of Friday, May 30, 2008, Andrew Oliver fought for his college baseball life. Compliance officials from Oklahoma State and the NCAA interviewed him from about 8:30 p.m. until after midnight and then questioned his father from 12:30 until the small hours of the morning, as Oliver's attorneys would later claim in a legal brief.
Then on Saturday afternoon, just hours before Oliver was set to take the mound against Wichita State in the Stillwater regional, Oliver learned that his athletic eligibility had been revoked indefinitely. The Cowboys would be without their ace lefthander for the postseason, and maybe for part or all of 2009 as well.
The reason for the suspension, Oliver was told by the school, was that he had violated NCAA Bylaws 12.3.1 and 18.104.22.168. The first rule, known as the "no agent" rule, prohibits players from being represented by agents in negotiations with professional teams, and the latter rule specifies that players are not even permitted to have a lawyer or adviser be present during negotiations between player and club. The rules are very clear: A player may retain an adviser to look over contracts and offer advice, but as soon as the adviser has any contact with a pro club on the player's behalf, he becomes an agent, and the player becomes ineligible.
|Here's what the NCAA has to say about athletes dealing with agents.
A. General Rule. An individual shall be ineligible for participation in an intercollegiate sport if he or she ever has agreed (orally or in writing) to be represented by an agent for the purpose of marketing his or her athletics ability or reputation in that sport. Further, an agency contract not specifically limited in writing to a sport or particular sports shall be deemed applicable to all sports, and the individual shall be ineligible to participate in any sport. [12.3.1]
F. 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 (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the student-athlete. A lawyer's presence during such discussions is considered representation by an agent. [22.214.171.124]
C. Representation for Future Negotiations. An individual shall be ineligible per 12.3.1 if he or she enters into a verbal or written agreement with an agent for representation in future professional sports negotiations that are to take place after the individual has completed his or her eligibility in that sport. [126.96.36.199]
The sordid chain of events that led Oliver to such an impasse are enough to fill up a 102-page legal brief, but there are more pressing questions than "how did Andy Oliver get here?" The case dredges up a host of concerns about the relationship between agents, amateur baseball players and the NCAA, starting with one central, inescapable question: Why should Andy Oliver be punished for an offense that nearly every baseball draft prospect commits and for which nearly none are disciplined?
"Every single player that we deal with—I don't care what round you're talking about—has representation, has an agent," said an American League scouting director. "It's been that way for the last four or five years, and I'm talking even about kids drafted in the 28th round. It's a prerequisite now.
"These agents are barraging us with telephone calls before we even select a player. I can't even tell you how early agents try to call us and sell us on a player. It starts way before the draft. Those aren't calls that I initiate, but I'm not going to hang up on the guy. The problem is I guess the NCAA's problem, and it's wide and far and deep, but it's not an issue for us, it really isn't."
Little Incentive To Investigate
Rick Karcher played first base in the Braves system during the early 1990s, then headed off to law school when his playing days came to an end. After spending a few years as a partner at a law firm, Karcher became a professor of sports law at Florida Coastal School of Law. As a former player, he had a special interest in legal matters that affected baseball, and he was intrigued when the NCAA suspended Vanderbilt lefty Jeremy Sowers for six games to start the 2002 season. Sowers, the NCAA said, had violated the "no agent" rule the previous summer, when his adviser had contact with the Reds, who drafted Sowers in the first round out of high school. The case eventually prompted Karcher to write an article in the Vanderbilt Journal of Entertainment Law & Practice that explored the merits of the NCAA's "no agent" rule as it pertains to baseball players.
"He was the first college baseball player that I had been aware of that the NCAA ended up disciplining for this," Karcher said. "'Why single out Jeremy Sowers?' That was my thought process at the time. Even at that time, you could see the bonuses increasing over a period of time; there was a compelling need here for players to be represented by competent representatives in the negotiations of their contracts. You're talking about a huge business issue that nobody should expect some amateur player coming out of high school or college to be able to deal with on their own.
"There's no question that the industry norm is that players are being represented by agents in the draft process, whether that entails discussions with clubs prior to the draft or once they're actually drafted. The question is, what should be the (NCAA) regulations to deal with that situation? Should the regulations adhere to the industry norm or should they be counter to or prohibit the industry norm? That's the first question, and the second question is how do you enforce it? At some point it becomes an enforcement issue."
Over the years, the NCAA has shown little inclination to track down and punish players who let agents represent them in professional contract negotiations, and clearly the agents and major league clubs have no incentive to get players into hot water with the NCAA.
"(The NCAA) expects us to call and say, 'Hey, we had a deal with this kid's adviser, but he went back into school?' Come on, we're not going to do that. Why do we care?" the scouting director said. "You enforce it, or do something once you get ahold of it. It's not that hard to pick up a paper—you can read about it. The college coaches know these guys are represented. You'd think the NCAA would get more involved if they care, because we're playing a charade here if we think these players are representing themselves, and it's just family advisers after they get drafted. That's kind of a joke."
It's hard to tell just how much of an issue this is for the NCAA, which seems to alternate between tough talk and blissful ignorance. Dennis Poppe, the NCAA's managing director of football and baseball, even said that he believes the agent situation "has improved through the years, especially as long as I've worked with college baseball."
"I don't know if it's a concern, but the rules are very specific," Poppe said. "I think what we need to do is emphasize more and more an educational program. It is an issue, I don't think we can deny that. We also understand the need for good advice and counsel, but there's a fine line between getting advice and counsel and them representing you in negotiations.
"Maybe it's a little pollyannish on my part, but the vast majority of players are smart enough, getting good advice from their coaches and institutions, they know what to do and what not to do."
If the NCAA is going to get serious about enforcement, it needs to start by coming to grips with the simple reality that agents are omnipresent in college baseball in the 21st century. Then it needs to either actively work to change that reality (a daunting and unrealistic goal), or else rethink its rules against the industry norm.
"The kids need advice, that's precisely why they pick up an adviser," said Vanderbilt coach Tim Corbin, president of the American Baseball Coaches Association. "At the same time there's a rule against (agents representing players) and it's basically ignored by everyone. People will get away with whatever they can get away with. If there's no standards or guidelines or it's not followed up on, people are going to take advantage. If you're going to have a rule like that, you need to have some stick-toitiveness. At the college level, I don't think administrators understand this part of college baseball, the recruiting part of it, where there is this type of activity going on. I just don't think people know enough about it."
Who's Paying For That Meal?
NCAA bylaws contain other rules about advisers that are less trampled upon. Most notably, players aren't allowed to receive any benefits from advisers—not even so much as a meal or a car ride. The general consensus is that while violations of this "no benefits" rule occur, they are not nearly as widespread as the ubiquitous disregard for the "no agents" rule.
"I think it just depends on the agency," said one agent. "My experience is they're very bound to the rules. If it comes to driving a kid to dinner, they won't even do that and make sure the kid pays for his own meal. My interpretation is most agents stick to those rules."
Other agents insist that those rules are violated every day—particularly, some say, at the junior college level. But no one is suggesting the "no benefits" rule be abolished; at least not as long as amateurism remains a central tenet of the NCAA's stated mission.
But Karcher, for one, believes the "no agent" rule no longer has a place in college baseball, and his ideas have plenty of support from people in all facets of the business. Football and basketball are different, Karcher says, because the draft in those sports takes place months after the college season ends, which means players who have declared for the draft have exhausted their remaining college eligibility. They don't need to worry about compliance issues and can enter into agreements with agents freely, with months remaining before the draft for the agent to contact professional teams on their behalf.
But baseball players must worry about compliance issues because they have eligibility remaining both before and after the draft, which takes place during the season in June. Karcher is adamant that players must have representation when negotiating contracts with major league clubs, but the current rules prevent that from happening out in the open.
Jay Franklin, the only agent contacted for this story who was willing to speak on the record, believes the clandestine nature of the agreements between players and agents fosters shady dealings. He believes agents should only be allowed to interact with parents and coaches, and not with the players themselves.
"These things happen behind the coach's back, behind mom and dad's back—that's when all the rules are violated," Franklin said.
Of course, even if agents were barred from talking to players, the greater problem would remain: Who would enforce it? Unlike in football, where the players' association regulates agent activity, there is no oversight body for agents in amateur baseball. The union takes a hands-off approach, the NCAA has no authority over agents, and there are no consistent laws about certification from state to state. So agents who are just starting out in the business will often do whatever it takes to gain a foothold in the industry, and there are no tangible repercussions for breaking the rules.
"It's the Wild, Wild West—there are no regulations here," said a third agent. "People wonder why there are so many bad agents; well, because the system allows for it. You don't have to be certified to be an agent. We all start off the same. Every state has their own governing body, and some states don't have anything. I don't blame the agents as much as I blame the system, because nobody regulates anything. It's not just the NCAA, it's everything. It's an institutional failure."
The solution Karcher lays out in his 2005 law journal article is to eliminate the "no agent" rule while keeping the "no benefits" rule intact. He further suggests that schools and the NCAA take a more active role in regulating agents by requiring standard athlete-agent representation agreements, similar to the agreements that the NFL players' association requires draft prospects to sign with agents.
"If you think about it, having a formed contract would clear up a lot of problems," Karcher said. "Right now you have a situation where nobody is supposed to have an agent so they don't have a formal agreement to have an agent, they just have these loose understandings between the player and the agent. A formal agreement would allow the NCAA to define the specific parameters for how it should look. How much is a reasonable fee for services? What are permissible services for the agent to provide? Instead of having everything go on under the table."
Coaches, like Louisiana State's Paul Mainieri—a former president of the ABCA himself—see plenty of sense in this plan.
"To be honest with you—and people in the NCAA may be angry with me for saying this—but I don't really see the problem with a representative talking to a team about a player," Mainieri said. "I would much rather my player not be distracted while he's playing the season. How would an organization determine the signability of my player if he doesn't have a chance to talk to him? So if you've got 30 different organizations trying to talk to my player and we're trying to win a regional or super-regional or whatever, it's very difficult for a player to concentrate on baseball."
Agents might even be receptive to Karcher's proposal. For one thing, it would give them more security. In the current climate, players aren't allowed to sign anything with agents or even orally agree to future representation, so agents are left to speak in hypotheticals and hope that the players don't betray them at the last minute.
"We'll sit down and tell them, 'Our clients pay X.' It's out on the table, they understand how we run our business," a fourth agent said. "If they are drafted and sign with us, they'll understand what they owe us. If we say, 'When you get drafted you'll give us 4 percent,' that's a violation. They haven't agreed to pay us, but they know what our fee is. Technically could they screw us at the 11th hour and say we didn't have an agreement? Sure they could. That's the land we're in—there's danger."
Letting The Courts Decide
And that's partly how Oliver wound up in the mess he's in. When Oliver was drafted by the Twins in the 17th round out of Vermillion (Ohio) High, his advisers, Robert and Tim Baratta, contacted the Twins on his behalf, and Tim Baratta was present when the Twins offered Oliver a contract, violating Bylaw 188.8.131.52. Oliver and his attorneys do not dispute that.
This past March, Oliver decided to fire the Barattas and hire the Scott Boras Corp. as his advisers. The Barattas responded by sending Oliver a bill for $113,750 for legal services rendered, a move that baffled agents contacted for this story, who all said that advice is free.
According to Oliver, his lawyers told the Barattas they didn't have the money to pay the bill, so the Barattas sent a letter to the NCAA and Oklahoma State claiming that Oliver had violated NCAA rules. After a brief inquiry, he was suspended.
In July, Oliver sued the NCAA, the Barattas and Oklahoma State, among others. Part of his complaint was a fundamental challenge of NCAA rules.
The legal brief filed on Oliver's behalf by attorney Richard Johnson acknowledges that Oliver retained the Barattas as lawyers to represent him, but says that attorneys in Ohio are subject to the exclusive regulation of the Ohio Supreme Court and the state constitution, so Oklahoma State and the NCAA "have absolutely no authority whatsoever to promulgate a rule that would prevent a lawyer—legally retained under the NCAA's bylaws—from competently or zealously representing his or her client. Thus NCAA Bylaw 184.108.40.206 is void, because it is against the public policy of the State of Ohio as well as every other state in this Union."
It's an interesting legal argument, though Karcher said he thinks it's unlikely to succeed. So for now, Oliver's OSU career hangs in limbo; his eligibility was restored by a temporary restraining order issued by an Ohio court against the NCAA on Aug. 15, pending a Sept. 9 hearing. Even if Oliver doesn't win the legal battle, his case could impact the future of agent-player relations in college baseball.
"Maybe," Karcher said, "it'll have sort of an indirect impact on the NCAA and how they look at their own rules and review the process and the way things should be done."
Count Franklin among those pessimistic that the case will spur any meaningful change.
"Unfortunately I think it's going to fall on a bunch of deaf ears, because the people in this business don't care about the kids," Franklin said. "If the NCAA really did care, I think they'd have done something about it before now, don't you?"