By Steven Olenick*
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Prized basketball recruit Renaldo Sidney has yet to step foot on the court for the Mississippi State Bulldogs. His eligibility status remains uncertain due to an ongoing investigation by the National Collegiate Athletic Association (NCAA) into his amateurism status regarding receiving improper benefits.[FN1]Oklahoma State star wide receiver, Dez Bryant, was ruled ineligible by the NCAA this past season for lying about a meeting with NFL great Deion Sanders.[FN2] Major League Baseball prospect Andrew Oliver was suspended by Oklahoma State University because he had violated Bylaw 12.3.1 by allowing his former attorney to contact a Major League club and by having his former attorney present when a Major League Baseball club tendered him a contract.[FN3] Recently, another Major League Baseball prospect, James Paxton, had his eligibility questioned for his dealings with a Major League Baseball club.[FN4]
One theme remains constant in all of these aforementioned matters: student-athlete amateurism status. Under the NCAA Bylaw’s, any student-athlete will be ruled ineligible in any collegiate sports if he or she has committed themselves verbally or in writing to be represented by an agent.[FN5] The NCAA furthers their stance by not allowing a student-athlete to enter into a representation agreement verbally or in writing until after the student-athlete has completed their eligibility.[FN6] The NCAA’s position is intended to keep professionals away from student-athletes.[FN7] The NCAA is not directly prohibiting student-athletes from engaging professionals, such as attorneys, so long as they do not have direct contact with professional teams.[FN8] The NCAA carries out these bylaws by requiring student-athletes to sign a non-negotiable waiver which bars them from competing in intercollegiate sports in the event that they do not sign the form. Although this may appear to be a constitutional violation, depriving a student-athlete of his or her Fourteenth Amendment due process right, the NCAA’s conduct is not actionable under state law when a private organization does not adopt state rules, but, rather, holds collective membership within a private organization.[FN9]
So where does this leave potential professional prospects needing proper guidance in the agent selection process and player contract negotiation? The NCAA does not prohibit hiring an attorney or business manager; however, neither can represent the student-athlete openly during negotiations with a professional team. [FN10] Attorneys and business managers can discuss the merits of a deal with a student-athlete and guide him or her appropriately throughout the agent selection process, however, at no time may they initiate discussions between the team and player, nor directly contact the team on the player’s behalf.[FN11] This anachronistic approach by the NCAA may appear to monopolize student-athletes. History suggests that the NCAA does not want anyone to challenge its loosely worded bylaws pertaining to agent legislation.[FN12] Additionally, the paucity of case law suggests that the NCAA is very sensitive in resolving any matter attacking these specific bylaws to uphold its existing form.
One possible panacea would be to strongly encourage the NCAA to work in concert with all governing professional sports leagues to ensure that student-athletes who have the ability to play post-college have access to a checks and balance system that would provide them with proper guidance in evaluating a post-collegiate career. The NCAA determines whether schools have proper oversight and compliance, but it can be argued that their bylaws may be widely interpreted. The NCAA is intended to protect student-athletes and provide them the best opportunity to succeed both on and off the court. Unfortunately, however, for the few select student-athletes that have the ability to extend their career beyond the collegiate ranks, the NCAA could be limiting their ability to obtain proper guidance and receive credible information that could sway their decision making process. By modifying the NCAA bylaws to allow for the NCAA to become the mediator between the potential professional prospect and the professional team, the NCAA could monitor the discussions and obtain the proper information to pass along to the student-athlete for him or her to decide on his or her potential professional future. Additionally, implementing an effective checks and balance approach would allow student-athletes to receive proper oversight during the decision making process and allow for the NCAA to provide the much needed oversight currently lacking in student-athlete decision making. Until the NCAA introduces alternative measures to minimize the lack of oversight and information relayed to student-athletes, student-athletes will not be able to obtain proper guidance to help them through the difficult decision making process of declaring for professional drafts or foregoing collegiate eligibility.
* Steven Olenick is an Associate in the Entertainment, Media & Publishing, Advertising, Marketing & Promotions and Intellectual Property Groups of Davis & Gilbert. He counsels individuals, entertainers, current and retired professional athletes, coaches, start-ups, sports agencies, marketing companies, advertising companies and digital media companies in connection with all aspects of advertising, marketing, digital technology and sports and entertainment. In addition, Mr. Olenick counsels and provides strategic business advice to current and retired professional athletes and sports agencies all over the world.
Prior to joining the firm, Mr. Olenick worked for Entersport Management, Inc, an agency that specializes in the representation of professional basketball players internationally. Mr. Olenick began his legal career at Paul, Weiss, Rifkind, Wharton & Garrison LLP, a firm widely recognized as a leader in litigation and corporate transactions.
[FN1] Mike DeCourcy, Attorney: Mississippi State Mishandling Renardo Sidney’s Eligibility, Sporting News, Jan. 8, 2010. http://www.sportingnews.com/college-basketball/article/2010-01-08/attorney-mississippi-state-mishandling-renardo-sidneys-eligibi.
[FN2] Thayer Evans, Oklahoma State Declares Star Receiver Bryant Ineligible, N.Y. Times, Oct. 8, 2009 at B17, also available at http://www.nytimes.com/2009/10/08/sports/ncaafootball/08bryant.html.
[FN3] Division I Agents, Amateurism and Elite Student-Athletes, http://web1.ncaa.org/web_files/regional_seminars/2009/DI/Outlines/DI%20Agents,%20Ama%20and%20ESA%20OL.pdf (Last visited Mar. 25, 2010). See also http://www.ncaa.org/wps/wcm/connect/34a376804e0b88ef937ef31ad6fc8b25/AgentBrochure.pdf?MOD=AJPERES&CACHEID=34a376804e0b88ef937ef31ad6fc8b25 (Last visited Mar. 25, 2010).
[FN4] See id.
[FN5] See id.
[FN6] See id.
[FN7] See id.
[FN8] See id.
[FN9] See NCAA v. Tarkanian, 488 U.S. 179 (1988).
[FN10] See id. See also Pitt’s Blair Declares for NBA Draft, http://sports.espn.go.com/nba/draft2009/news/story?id=4052755 (last visited Mar. 26, 2010).
[FN12] Rendall Rogers, Report: Kentucky Ace Pitcher James Paxton Sues School, Destination: Omaha, Dec. 3, 2009, http://rivals.yahoo.com/ncaa/baseball/blog/ncaabb_experts/post/Report-Kentucky-ace-pitcher-James-Paxton-sues-s?urn=ncaabb,206373. See also Liz Mullen, OSU P Andy Oliver Files Suit Against NCAA, Former Advisor, SportsBusiness Journal, July 2, 2008, http://www.sportsbusinessdaily.com/article/122046.