Judge Hands NCAA Loss in Court

January 29, 2015
By Dennis Read

In posting an 13-3 record over his first two years playing NCAA Division I baseball, Oklahoma State University pitcher Andrew Oliver notched a lot of big wins. But none were as big as the one he scored over the NCAA in an Ohio courtroom earlier this month.
That’s where a judge restored Oliver’s full collegiate eligibility, agreeing with the junior’s claim that the NCAA acted capriciously and arbitrarily in declaring him ineligible for violating the association’s amateurism rules. The decision could have major ramifications for college baseball—where players commonly face the decision of whether to sign a pro contract out of high school or play in college—but also other sports as it nullifies the NCAA rule preventing athletes from being represented by an agent during contract negotiations.

Oliver had been living the life of a typical, albeit skilled, college baseball player until he was declared ineligible hours before he was scheduled to start an NCAA regional game in May. The NCAA decided Oliver had run afoul of the association’s “no agent” rule, which prohibits players from having anyone other than their parents or guardians represent them in contract negotiations with professional teams. Players are allowed, however, to have advisors, including attorneys, but the minute an advisor is present during negotiations they become agents in the eyes of the NCAA.

A 17th-round pick in the 2006 amateur baseball draft, Oliver met with a representative of the Minnesota Twins in his home shortly after graduating from high school. Oliver’s advisor, an attorney, attended the meeting at his own request, but Oliver and his father rejected the Twins contract offer and decided Andrew would attend Oklahoma State.

Two years later, Oliver elected to change advisors and was sent a bill of more than $100,000 for services rendered by his previous advisors. After Oliver disputed the bill and refused to pay, claiming he never received such services, the jilted advisor informed Oklahoma State and the NCAA of their representation at the meeting with the Twins. Following an NCAA investigation that lasted until the wee hours of the morning before a scheduled late-season start, Oliver was declared ineligible.

With one of the top pitchers in the country sidelined, the Cowboys, ranked fifth in the nation at the time, lost that game and their dream of a College World Series appearance ended with another loss a day later. Although the stated penalty for violating the amateurism rule is permanent ineligibility, the NCAA eventually said Oliver would have to sit out one season, which would count against his eligibility. After a further appeal, the penalty was reduced to missing 70 percent of the 2009 season with no further loss of eligibility.

Oliver and his new attorney, Richard Johnson, a legal malpractice attorney in Cleveland, argued that Oliver should not serve any penalty, claiming, among other things, that the NCAA rules prohibiting the use of agents (Rule 12.3.2) interfered with an attorney’s ability to properly represent his client. They also said Oliver has never been notified of the rules and would have had no reason to refuse his attorney’s request to attend the meeting with the Twins. In addition, they claimed that the NCAA used information from Oliver’s advisors that was protected by attorney-client privilege.

The judge, Erie County (Ohio) Judge Tygh Tone, ruled that the NCAA’s rules governing the uses of agents and advisors was void. In his decision, Tone wrote:
“It is impossible to allow student-athletes to hire lawyers and attempt to control what that lawyer does for his client by Defendant’s Bylaws 12.3.2 or These rules attempt to say to the student-athletes that they can consult with an attorney but that attorney cannot negotiate a contract for them with a professional sport’s team. This surely does not retain a clear line of demarcation between amateurism and professionalism. The client/student-athlete will never know what his attorney is doing for him or her and quite frankly neither will the Defendant. The evidence is very clear that this rule is impossible to enforce and, as a result is being enforced selectively. Further, as in this case, it allows for exploitation of the student-athlete 'by professional and commercial enterprises,' in contravention of the positive intentions of the Defendant … "

Bylaw is unreliable (capricious) and illogical (arbitrary) and indeed stifles what attorneys are trained and retain to do.”

There is also debate over compliance with the rule. Testimony in the case indicated that it is common for baseball players to have agents and advisors negotiate with professional team, regardless of whether they plan to play in college or not. An article in Baseball America also said the rule was commonly ignored.

As part of his ruling, the judge ordered that Oliver be reinstated and that no further action be taken against him. This includes future action under NCAA Bylaw 19.7, which allows for penalties against schools that allow student-athletes to play under a court order and that order is later overturned or otherwise found not to be justified.

“The Bylaw is overreaching,” Tone wrote. “For example, if a Court grants a restraining order that permits a student-athlete the right to play, the institution will find itself in a real dilemma. Does the institution allow the student-athlete to play as direct by the Court’s ruling and in doing so face great harm should the decision be reversed on appeal? Alternatively, does the institution, in fear of Bylaw 19.7, decide it is safer to disregard the Court order and not allow the student-athlete to play thereby finding itself in contempt of court. Such a bylaw is governed by no fixed standard except that which is self-serving for the Defendant. To that extent, it is arbitrary and indeed a violation of the covenant of good faith and fair dealing implicit in its contract with Plaintiff as the third party beneficiary.”

Johnson told the New York Times that the victory is not Oliver’s alone.

“These people were trying to destroy this kid. The implications for Andy is he gets to play baseball. He gets his life back. And for the 360,000 student-athletes in the N.C.A.A., it’s the tip of the iceberg that they actually have legal rights. They have the opportunity to consult counsel when entering a contract.”

After the decision, the NCAA issued a statement saying:
“We are disappointed in the judge’s ruling. The bylaws related to agent relationships are important principles our colleges and universities have established to protect and preserve amateurism standards. We intend to seek a review of the decision by a higher court, and we are hopeful these significant standards will be preserved.”

At least one legal expert says the NCAA has reason to hope for better news should it appeal the decision. In relation to the finding that the NCAA’s no agent rule was void, Tassos Kaburakis, Assistant Professor of Sport Law and Sport Management and Director of the Sport Management Graduate Program at Southern Illinois University-Edwardsville, wrote that:

“The NCAA rule does not instruct anyone not to hire an attorney. They merely draw the line where the attorney becomes an agent representing an SA in pro [contract] negotiations. For that matter, I accept and commend that the SAs need to have an idea of what their draft status, market position, and bargaining power may be, so as to prepare the necessary tactics that will allow for them to better negotiate the eventual pro sports career. But that is available… It’s called advice from a lawyer.

Hiring an agent is different. You hire an agent when you have made up your mind, and are convinced that the agent will position you appropriately for the upcoming draft/negotiation phase. Then, according to the NCAA, the line has been crossed… And it’s their prerogative to declare so, having made tools available for SAs to fully consider their options.”

He also says Bylaw 19.7 has been the subject of previous litigation and points to previous rulings similar to Tone’s that have been reversed on appeal.
"It would be difficult to fathom a competitive sporting society where institutions, which are using ineligible players (indeed after final adjudication), are not sanctioned. This can in no way compromise the ability of institutions and SAs accessing US Justice. How could it? However, if the final adjudication renders these lower courts’ decisions false … the institutions will need to deal with the consequences. This is instrumental in upholding competitive equity.”

Even as the decision appears headed for continued appeals, Oliver’s case against the NCAA is not over. A separate jury trial to consider damages caused by Oliver’s suspension will begin on March 31. Meanwhile, Oliver struck out 11 and allowed two hits in six innings to pick up the win in the Cowboys' 5-4 victory over Brigham Young on Saturday, Feb. 21.

Dennis Read is an Associate Editor at
Athletic Management.
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