By Bujar Ahmeti, Esq., Athletics Compliance Officer at the University of Oklahoma
Introduction
The Oklahoma legislature enacted a bill that would allow it to recoup any losses experienced by actions of agents and boosters that subject any state university to sanctions by its national governing body. House Bill 2615 (“HB 2615”) was a collaborative effort between State Representative Todd Thomsen and the University of Oklahoma Athletics Compliance Department. It aims to penalize those individuals whose actions jeopardize the eligibility of student-athletes or expose universities to financial and criminal penalties.
Section 1 of HB 2615 contains the definitions and the term “student-athlete”, as used in HB 2615, refers to both individuals who have not yet matriculated to a college campus and those individuals who are already competing at the collegiate level. This contrasts with the NCAA manual that separates out these two sets of individuals as “prospective student-athletes” and “student-athletes.” For purposes of this article, the term “student-athlete” will reflect the definition in HB 2615.
Criminal Prosecution
Section 2 of HB 2615 is broken down into two separate areas. First, it prohibits a person from offering monies or anything of value to a student-athlete or a member of the student-athlete’s family in an attempt to coerce that student-athlete into attending a specific university or rewarding the participation in an intercollegiate athletics event. Essentially, HB 2615 seeks to curb those instances when a booster may attempt to offer up cash or an item of value to attend his or her institution of choice. It is important to note that recent high-profile cases that have or will go before the Committee on Infractions contain an improper recruiting inducement of the kind HB 2615 seeks to curb.
Second, Section 2(B) of HB 2615 forbids a person, directly or through an agent, to form an agreement or complete a transaction with a student-athlete “if the person has, or could be reasonably expected to have, knowledge that the transaction would” likely cause the student-athlete, either permanently or temporarily, to lose eligibility.
What is interesting is the controlling language contained in this second section of HB 2615. Specifically, it is not enough for a person’s actions to jeopardize a student-athlete’s eligibility. Instead, this same person must have had knowledge or should have had knowledge that the transaction would jeopardize the student-athlete’s eligibility. This knowledge requirement puts an onus on an institution’s compliance department to educate its stakeholders on any relevant NCAA rules and regulations to be enforceable.
To that end, it is imperative for a compliance department to retain detailed records of what education is provided to which individuals. This can be done in a number of ways, but the baseline should be to save any booster education mailing lists and sign-in sheets from any in-person meetings. The reason being that it may be necessary overcome to any arguments put forth by an individual who attempts to say he or she was not aware that his or her actions would affect the eligibility of a student-athlete. Notably, subsection E requires that each public and private high school in the state of Oklahoma provide its student-athletes with written education regarding the consequences of accepting improper benefits. However, there is no similar education requirement for supporters of athletics programs even though prior knowledge of the consequences is specifically required by the statue.
A person found in violation of HB 2615 is guilty of a misdemeanor and subject to a fine of not less than One Thousand Dollars ($1,000.00) and not more than Five Thousand Dollars ($5,000.00) and/or imprisonment not exceed one year.
Civil Penalties
While Section 2 of HB 2615 subjects an individual to criminal penalties, Section 3 provides each public and private institution a remedy through the civil courts against any person whose actions subject an institution to penalties, financial or otherwise, or jeopardize a student-athlete’s eligibility. Notably, Section 3 entitles an institution to recover all damages and such damages include “loss of scholarships, loss of television revenue, loss of bowl revenue and legal and other fees associated with the investigation of the activity.”
The recourse offered by Section 3 is what may curb future improper actions by individuals. Being liable for any loss of television and/or bowl revenue can be quite substantial in today’s environment and a sufficient deterrent. For example, the University of Mississippi has self-imposed a bowl ban for the 2017 football season valued at approximately $7.8 million dollars due to an ongoing investigation into alleged improper booster activities. This figure does not include the attorney fees and costs incurred by the university in investigating and defending against the allegations.
Finally, institutions are permitted to seek an injunction against any person found liable under HB 2615 prohibiting that person from having any contact with the institution, including attending any sporting events where a student-athlete participates, or any of its student-athletes. This is similar to the penalty instituted by the Committee on Infractions when it requires an institution to disassociate itself with a booster.
What will be interesting to follow is the effectiveness of HB 2615 as it relates to out of state residents. For example, will the state of Oklahoma or an institution be able to bring a cause of action under HB 2615 when the alleged improper conduct occurs outside the state and the actor resides outside the state? Generally, a court must have personal jurisdiction to exercise authority over a potential defendant. Personal jurisdiction is easy to establish when the defendant resides within the state in question; however, it becomes more complicated when the defendant resides out of state. Due process requires that an out of state defendant have sufficient minimum contacts with a state such that exercising jurisdiction would not violate traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Whether an individual has “sufficient minimum contacts” is a question of fact and one that is subject of numerous Supreme Court cases. It is near impossible to draft a “one size fits all’ rule, and as a result, the “contacts” a person has with the state of Oklahoma will need to be determined prior to any cause of action being brought and could shield some individuals from liability under HB 2615.
Conclusion
HB 2615 provides an avenue of recourse for the state and institutions against the improper actions of a booster. However, there is no similar cause of action that may be brought by student-athletes whose eligibility is jeopardized, either permanently or temporarily, by a rogue booster. While it remains seen as to what extent actions are initiated under HB 2615, it is an important step in attempting to deter the improper activity of a booster or allow an institution to recover any financial losses associated with any such activity.
