If the NCAA has to change their amateur eligibility rules in light of the Oliver ruling, here is an idea as to how they might do it:
My personal suggestion would be to change the definition of what it means to be an amateur so that student athletes lives aren’t ruined so easily by a mistake. A player shouldn't become professional the second he/she signs a professional contract, but the second he/she plays as a professional or receives money under the contract. (The NCAA can create a window such as before college and during the summer when the player may sign and/or negotiate a professional contract. If it is still in place when the college sport starts, then they lose their eligibility.)
I welcome your thoughts.
Thursday, February 19, 2009
Tuesday, February 17, 2009
When does an Attorney become an Athlete Agent?
Many attorneys routinely provide legal counsel to athletes. So the question is, when does an attorney become an athlete agent subject to registration. The rules vary slightly by state, so let's start with the Uniform Athlete Agents Act (the "UAAA") which most states have adopted.
According to the comments under Section 5 in the UAAA:
However, let's focus a little bit more on the phrase "negotiate... a professional sports-services contract or an endorsement contract."
As a starting point, the UAAA clearly states that when a person communicates with a student athlete such person is not required to register as an agent if that person is not recruiting or soliciting and only providing information to the student athlete. (This is the reason why so many athletes have advisers and handlers now.)
Next, I followed up with representatives from three of the states where I'm licensed to ask more. Florida's statute is slightly different and defines an agent contract as: "a contract or agreement in which a student athlete authorizes an athlete agent to represent the student in the marketing of the student's athletic ability or athletic reputation."
In a conversation with a representative from the Florida Department of Business & Professional Regulation, Robert (no last name given) stated that he does not believe the Florida Act requires an attorney to register if he/she is reviewing contracts and/or negotiating the professional sports contract because the Florida Act talks about marketing student athletes. Registration becomes a requirement when soliciting athletes and seeking employment for the athletes - NOT when negotiating contracts.
The New York Act more closely resembles the UAAA. In a conversation with a representative from the New York Division of Licensing, Jeff Stats stated that he does not believe the New York Act requires an attorney to register if he/she is merely reviewing contracts, but left open the possibility that anything more will result in an attorney having to register.
The Pennsylvania Athlete Agents Act also closely resembles the UAAA. In a conversation with the Executive Director of the Pennsylvania State Athletic Commission, Gregory Sirb stated that he does not believe the Pennsylvania Act requires an attorney to register if he/she is merely reviewing contracts, but was very clear that anything more will result in an attorney having to register. I asked what if a professional team calls about a client to discuss a provision in the contract, and he said that would be enough to trigger registration in his mind. (As an aside, it did not sound like he was 100% convinced that it would stand up if challenged, but he left no doubt as to how he interpreted the law.)
I also contacted Professor Scott Rosner, who is an Associate Director of the Wharton Sports Business Initiative. He noted that there are a lot of ways an attorney can represent an athlete. He did not think mere review will require registration, but was more cautious as to what would trigger registration.
To conclude my investigation into this, I contacted Richard C. Hite, of Hite, Fanning & Honeyman, who was the Chair Person of the Committee that created the UAAA. He stated that there were lengthy discussions about this particular issue. He graciously took the time to find his notes from his time on the Committee and advised me that the official comment in Section 5 of the UAAA was inserted to ensure that an attorney who only acts as an attorney is not subject to the registration requirements. Specifically, he stated that he disagrees with idea that an attorney cannot negotiate a contract without registering. Moreover, he mentioned that the word "negotiate" in the definition of "agency contract" was not designed to prevent an attorney from negotiating the terms of a contract on behalf of an athlete, but from negotiating employment for an athlete.
So, to sum up, an attorney who merely reviews contracts for athletes is not subject to any registration requirements; but one who negotiates a contract may or may not be required to register.
This leads to my big question, if the statute requires an attorney to register as an agent for merely negotiating the terms of a contract, did the legislature step beyond it's legal authority in regulating attorneys? (Almost all states have similar provisions in their State Constitution that declare the State Supreme Court has exclusive authority to regulate the lawyers in such State.)
Clearly when a lawyer is not acting in his/her capacity as an attorney, a state may regulate the person, but negotiating contracts is unequivocally in the job description of an attorney. So isn't the legislature overreaching?
The main penalty for a person failing to register as an agent is that the contract between the person and the athlete is void (meaning that the agent is not entitled to any fees). Additionally, some states have pretty hefty fines as well.
Additional note: In New Jersey, the legislature proposed a bill in December of 2008 that would require athlete agents to register with the State. It has not yet been signed into law.
Update: In a conversation with Alexis Antonacci, a spokesperson for the Florida Department of Business & Professional Development, she stated that she thought attorneys who negotiated contracts were required to register, but did not give me any authority for that assertion.
According to the comments under Section 5 in the UAAA:
"If an attorney's role is limited to providing legal services to a student-athlete, the attorney is not required to register as an athlete agent or comply with this act. An attorney's actions as an athlete agent, however, are outside the scope of legal services, there is no privilege and the attorney must comply with this act." (emphasis added)An athlete agent is defined as:
"an individual who enters into an agency contract with a student-athlete or, directly or indirectly, recruits or solicits a student-athlete to enter into an agency contract. The term includes an individual who represents to the public that the individual is an athlete agent. The term does not include a spouse, parent, sibling, [or] grandparent[, or guardian] of the student-athlete or an individual acting solely on behalf of a professional sports team or professional sports organization."This begs the question of what is an agency contract. An agency contract is defined as:
"an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional-sports-services contract or an endorsement contract."A student athlete is:
"an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, any intercollegiate sport. If an individual is permanently ineligible to participate in a particular intercollegiate sport, the individual is not a student-athlete for purposes of that sport."So it's pretty clear that soliciting clients, soliciting employment for a client and holding oneself out as an agent will require an attorney to register. The other item that is pretty clear is that the UAAA is not intended to apply to attorneys representing athletes who no longer have college eligibility, providing that they are not otherwise holding themselves out as agents.
However, let's focus a little bit more on the phrase "negotiate... a professional sports-services contract or an endorsement contract."
As a starting point, the UAAA clearly states that when a person communicates with a student athlete such person is not required to register as an agent if that person is not recruiting or soliciting and only providing information to the student athlete. (This is the reason why so many athletes have advisers and handlers now.)
Next, I followed up with representatives from three of the states where I'm licensed to ask more. Florida's statute is slightly different and defines an agent contract as: "a contract or agreement in which a student athlete authorizes an athlete agent to represent the student in the marketing of the student's athletic ability or athletic reputation."
In a conversation with a representative from the Florida Department of Business & Professional Regulation, Robert (no last name given) stated that he does not believe the Florida Act requires an attorney to register if he/she is reviewing contracts and/or negotiating the professional sports contract because the Florida Act talks about marketing student athletes. Registration becomes a requirement when soliciting athletes and seeking employment for the athletes - NOT when negotiating contracts.
The New York Act more closely resembles the UAAA. In a conversation with a representative from the New York Division of Licensing, Jeff Stats stated that he does not believe the New York Act requires an attorney to register if he/she is merely reviewing contracts, but left open the possibility that anything more will result in an attorney having to register.
The Pennsylvania Athlete Agents Act also closely resembles the UAAA. In a conversation with the Executive Director of the Pennsylvania State Athletic Commission, Gregory Sirb stated that he does not believe the Pennsylvania Act requires an attorney to register if he/she is merely reviewing contracts, but was very clear that anything more will result in an attorney having to register. I asked what if a professional team calls about a client to discuss a provision in the contract, and he said that would be enough to trigger registration in his mind. (As an aside, it did not sound like he was 100% convinced that it would stand up if challenged, but he left no doubt as to how he interpreted the law.)
I also contacted Professor Scott Rosner, who is an Associate Director of the Wharton Sports Business Initiative. He noted that there are a lot of ways an attorney can represent an athlete. He did not think mere review will require registration, but was more cautious as to what would trigger registration.
To conclude my investigation into this, I contacted Richard C. Hite, of Hite, Fanning & Honeyman, who was the Chair Person of the Committee that created the UAAA. He stated that there were lengthy discussions about this particular issue. He graciously took the time to find his notes from his time on the Committee and advised me that the official comment in Section 5 of the UAAA was inserted to ensure that an attorney who only acts as an attorney is not subject to the registration requirements. Specifically, he stated that he disagrees with idea that an attorney cannot negotiate a contract without registering. Moreover, he mentioned that the word "negotiate" in the definition of "agency contract" was not designed to prevent an attorney from negotiating the terms of a contract on behalf of an athlete, but from negotiating employment for an athlete.
So, to sum up, an attorney who merely reviews contracts for athletes is not subject to any registration requirements; but one who negotiates a contract may or may not be required to register.
This leads to my big question, if the statute requires an attorney to register as an agent for merely negotiating the terms of a contract, did the legislature step beyond it's legal authority in regulating attorneys? (Almost all states have similar provisions in their State Constitution that declare the State Supreme Court has exclusive authority to regulate the lawyers in such State.)
Clearly when a lawyer is not acting in his/her capacity as an attorney, a state may regulate the person, but negotiating contracts is unequivocally in the job description of an attorney. So isn't the legislature overreaching?
The main penalty for a person failing to register as an agent is that the contract between the person and the athlete is void (meaning that the agent is not entitled to any fees). Additionally, some states have pretty hefty fines as well.
Additional note: In New Jersey, the legislature proposed a bill in December of 2008 that would require athlete agents to register with the State. It has not yet been signed into law.
Update: In a conversation with Alexis Antonacci, a spokesperson for the Florida Department of Business & Professional Development, she stated that she thought attorneys who negotiated contracts were required to register, but did not give me any authority for that assertion.
Friday, February 13, 2009
Humorous Note to Oliver v. NCAA
Clearly Judge Tone has a bit of a funny bone:
"For a student-athlete to be permitted to have an attorney and then to tell that student athlete that his attorney cannot be present during the discussion of an offer from a professional organization, is akin to a patient hiring a doctor but the doctor is told by the hospital board and the insurance company that he (the doctor) cannot be present when the patient meets with a surgeon because the conference may improve his patient's decision making power. Bylaw 12.3.2.1 is unreliable (capricious) and illogical (arbitrary) and indeed stifles what attorneys are trained and retained to do."
"For a student-athlete to be permitted to have an attorney and then to tell that student athlete that his attorney cannot be present during the discussion of an offer from a professional organization, is akin to a patient hiring a doctor but the doctor is told by the hospital board and the insurance company that he (the doctor) cannot be present when the patient meets with a surgeon because the conference may improve his patient's decision making power. Bylaw 12.3.2.1 is unreliable (capricious) and illogical (arbitrary) and indeed stifles what attorneys are trained and retained to do."
Judge Tosses NCAA Rule Preventing College Baseball Players From Hiring Advisors During Negotiations
In a potentially far-reaching decision, Ohio Judge Tygh Tone ruled in favor of Andrew Oliver against the NCAA. The legal impact of this ruling may allow college (and high school) baseball players to be represented by legal counsel when negotiating contracts with professional teams.
Here's the background. Andrew is a pitcher for Oklahoma State University who was ruled ineligible to play because the NCAA claimed that he had violated their "no agent" rule. Specifically, the NCAA said that Andrew's advisors listened in on contract negotiations between Andrew and the Minnesota Twins in 2006 after he was drafted out of high school. (Andrew decided to take a full scholarship to OSU rather than sign with the Twins at that time.)
Under current NCAA Bylaw 12.3.2, players are allowed to have attorneys or advisors, so long as they do not have direct contact with professional clubs. Judge Tone's ruling stated that the NCAA should not restrict a player's right to have legal help when negotiating a contract for both legal reasons and reasons of public policy.
The legal reason that the NCAA should not restrict a player's right to have legal help is because the right to legal counsel is subject to the exclusive regulation of the [State] Supreme Court. Judge Tone also reasoned that as a matter of public policy, allowing players to hire a lawyer but prohibiting them from negotiating contracts is impossible to enforce and allows for players to be exploited. Accordingly, he labeled the ban "arbitrary and capricious." This term is important as the NCAA is technically an organization of voluntary members, and in order for its rules to be invalidated, they must be "arbitrary and capricious."
The judge concludes that "no entity, other than one designated by the state, can dictate to an attorney where, what, how or when he should represent his client." This includes the NCAA, regardless of their reason for having the rule.
As a separate matter relating to this case, the judge sternly criticized the NCAA for effectively refusing to let Andrew play by threatening financial punishment upon OSU if they complied with the injunction to let Andrew play.
This is not the final word, however, as the NCAA has stated that they are unhappy with the ruling and will likely appeal. If the ruling stands, it will likely require a change in how the NCAA handles eligibility rules for other sports as well.
Here's the background. Andrew is a pitcher for Oklahoma State University who was ruled ineligible to play because the NCAA claimed that he had violated their "no agent" rule. Specifically, the NCAA said that Andrew's advisors listened in on contract negotiations between Andrew and the Minnesota Twins in 2006 after he was drafted out of high school. (Andrew decided to take a full scholarship to OSU rather than sign with the Twins at that time.)
Under current NCAA Bylaw 12.3.2, players are allowed to have attorneys or advisors, so long as they do not have direct contact with professional clubs. Judge Tone's ruling stated that the NCAA should not restrict a player's right to have legal help when negotiating a contract for both legal reasons and reasons of public policy.
The legal reason that the NCAA should not restrict a player's right to have legal help is because the right to legal counsel is subject to the exclusive regulation of the [State] Supreme Court. Judge Tone also reasoned that as a matter of public policy, allowing players to hire a lawyer but prohibiting them from negotiating contracts is impossible to enforce and allows for players to be exploited. Accordingly, he labeled the ban "arbitrary and capricious." This term is important as the NCAA is technically an organization of voluntary members, and in order for its rules to be invalidated, they must be "arbitrary and capricious."
The judge concludes that "no entity, other than one designated by the state, can dictate to an attorney where, what, how or when he should represent his client." This includes the NCAA, regardless of their reason for having the rule.
As a separate matter relating to this case, the judge sternly criticized the NCAA for effectively refusing to let Andrew play by threatening financial punishment upon OSU if they complied with the injunction to let Andrew play.
This is not the final word, however, as the NCAA has stated that they are unhappy with the ruling and will likely appeal. If the ruling stands, it will likely require a change in how the NCAA handles eligibility rules for other sports as well.
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