Headed To Trial
Oliver case may have lasting ramifications
See also: Secret Agent Deals
Andy Oliver, the Oklahoma State ace lefthander who was declared ineligible on the eve of the Cowboys' regional opener in May, is close to a resolution in his battle with the NCAA. Barring an unexpected settlement, Oliver's lawsuit against the NCAA will go to trial in an Erie County, Ohio, court on Jan. 5.
At the heart of this case is the NCAA's "no agent" rule. Oliver's camp does not dispute that he violated the rule when his former advisers, Robert and Tim Baratta, contacted the Twins on his behalf after Minnesota drafted him out of Vermillion (Ohio) High in 2006. Even though scouting directors, agents and coaches told Baseball America this summer
that nearly every draft prospect violates this rule, and even though Vanderbilt lefthander Jeremy Sowers received just a six-game suspension for a very similar infraction in 2002, the NCAA initially docked Oliver a year of eligibility and suspended him for all of 2009. But Oliver's attorney, Richard Johnson, believes the "no agent" rule will be struck down in court.
"The judge already struck down the 'no agent' rule in the temporary restraining order (that restored Oliver's eligibility in August)," Johnson said. "Our position is that if nothing's changed, he'll strike it down at trial. Because the Barattas are lawyers, whenever lawyers are involved it changes the dynamic because lawyers are regulated by the Supreme Court of the individual states. The Barattas were at a 15-minute meeting with the Twins and talked to the Twins twice on the phone. That's what Andy's in trouble for. At that time, they were offering like $400,000. What lawyer could let an 18-year-old kid negotiate a contract like that by himself? That would be malpractice. That's why the rule is invalid on its face, because it interferes with the ethical obligation a lawyer has to protect his client. The NCAA is attempting to regulate lawyers, but they're not allowed to."
Of course, Oliver could win at trial but still lose if the NCAA uses its restitution rule to pressure Oklahoma State into not playing Oliver, even if his eligibility is restored. The restitution rule says that if Oklahoma State lets Oliver play this spring but the injunction restoring his eligibility is reversed on appeal, the NCAA can punish OSU by taking away games, money and other things. So Johnson said he is trying to get the restitution rule struck down, as well.
It seems, however, that the NCAA is already threatening to seek restitution against Oklahoma State for having played Oliver for the last two years.
"It is our belief that the NCAA has opened an investigation on Oklahoma State to use as leverage against Andy," Johnson said. "And, in our opinion, that leverage has no basis in fact. In other words, Oklahoma State did not knowingly play Andy as an ineligible player. In our opinion, that leverage is being illegally used to coerce Andy into a settlement that is against his interest. And in our opinion, that constitutes extortion. That is our perception and interpretation of that behavior. We think it's disgusting, and we think it's emblematic of how the NCAA acts, and it's one of the reasons we intend to try this case and win."
That schism between the NCAA and Oklahoma State was further evident when the NCAA filed a cross-claim against OSU on Dec. 19. The previous week, an Ohio court required Oliver to include Oklahoma State as a defendant in his suit, but Oliver's amended suit is seeking only an injunction against Oklahoma State that would restore his eligiblity; he is seeking injunctive relief and monetary damages from the NCAA.
The NCAA's cross-claim against OSU argues that because Oliver was suspended by Oklahoma State and not by the NCAA, the school has an obligation to contribute toward any monetary damages awarded to Oliver against the NCAA "to the extent that OSU's actions have caused those monetary damages."
Johnson wrote a letter to Judge Tygh M. Tone stating that the NCAA's cross-claim is a frivolous attempt to delay the Jan. 5 trial date. Citing NCAA Bylaw 31.7.3, Johnson wrote that the NCAA "has no authority" to bring such a suit against one of its member schools, and that the NCAA "is required to defend, indemnify, and insure" member schools in these situations, not the other way around.
Johnson said that, to his knowledge, this is the first time the NCAA has sued one of its member institutions.
"We're starting trial Jan. 5, and the NCAA instead of taking responsibility for its own actions, it is now trying to blame Oklahoma State for its own liability," Johnson said. "The fact of the matter is when Oklahoma State investigates and enforces the NCAA's rules, it is acting as the NCAA's agents. If these schools don't investigate the kids, then the NCAA punishes them."
The NCAA's cross-claim and Johnson's response were available to the public because the protective order was dissolved and the gag order was lifted Dec. 16. Oklahoma State filed an appeal with the NCAA for Oliver to be reinstated, and that appeal was heard Dec. 15. In that appeal, Oliver's eligibility was restored and his suspension was reduced from a full season to 70 percent of a season. If Oliver loses at trial and that punishment stands, he would be allowed to play 16 games in 2009 while sitting out 40. A projected first-round pick in June, Oliver went 7-2, 2.20 for the Cowboys in 2008 before pitching for Team USA.
"Oklahoma State's reinstatement application was really interesting, because they argue that he's already been punished enough and should be allowed to play again," Johnson said. "I think that's part of the reason (the NCAA is) suing Oklahoma State, because Oklahoma State is taking our side on this. But the real reason I think they filed the cross-claim is they want to delay the trial. And it's not going to work."
NCAA spokeswoman Stacey Osburn said the NCAA would have no further comment on the Oliver case beyond this statement:
"We respectfully disagree with the court's decision in how the NCAA must proceed in this case. We intend to aggressively use every legal avenue to defend ourselves in these proceedings."