By Darren A. Heitner, Esq.
On March 22, 2013, all NFL Players Association certified Contract Advisors received an email from Paul Pogge, Associate Athletic Director at the University of North Carolina-Chapel Hill. The purpose of that email was to inform and place all agents on notice that UNC had recently implemented a new “Agent and Advisor Program,” and that all agents, advisors and their representatives were henceforth obligated to comply with the rules and regulations promulgated by UNC’s Department of Athletics. The Department of Athletics provided a brief synopsis of the most material portion of the new rules and regulations, but also implored recipients of the communication to visit the Department’s official website to review the full Program and a “short summary thereof.” The material portion of the Program included in the email is as follows:
Once registration with the UNC Department of Athletics is confirmed in writing, all subsequent contact with UNC student-athletes or affiliated individuals must be preapproved by both the Compliance Office and the appropriate head coach. If approved, a member of the Compliance Office must be present for any in-person meeting or phone call with a UNC student-athlete or affiliated individual. Similarly, any non-verbal communication or correspondence of any kind intended for a UNC student-athlete or affiliated individual must first be submitted to the Compliance Office for approval by both a Compliance Office representative and the appropriate head coach. If approved, the Compliance Office will be responsible for provision of the non-verbal communication. No form of contact or correspondence, verbal or otherwise, should ever take place with a UNC student-athlete or affiliated individual without the pre-approval and facilitation of the Compliance Office.
The emphasis in the above was not added by the author of this article. The paragraph implies that the UNC Department of Athletics is henceforth requiring all agents interested in contacting student-athletes to apply for registration with the school prior to taking any further action. Once granted the right to contact UNC student-athletes, agents must effectively have all of their communications approved by the university prior to speaking directly (with a member of the Compliance Office present) to an athlete. Non-verbal communications must literally be approved, word-for-word, by the Department prior to said communications be disseminated to the intended recipient. This material provision is the most extreme effort by a university to control not only the method of communication between athlete and agent, but also potentially the actual words spoken, and has led to many in the sports business world to question its legality on constitutional grounds.
Undoubtedly, the University of North Carolina’s new Agent and Advisor Program is a direct response to the prolonged presence of NCAA investigators snooping around the university, trying to uncover wrongdoing by agents, players and coaches. In the not-too-distant past, John Blake was an assistant head football coach at UNC. He was fired after the NCAA began to investigate the UNC football program regarding possible rules violations surrounding alleged benefits received by players from football agents.
The Agent and Advisor Program is new, but it is not the first restrictive agent policy that has been implemented by UNC. On June 27, 2012, the Department of Athletics released the “UNC Football Program’s Agent Contact Policy,” which placed limitations on when student-athletes were allowed to (1) have in-person meetings with agents, (2) make phone calls to agents, and (3) communicate electronically.
The main problem for the University of North Carolina Department of Athletics and all other departments across the United States is a lack of deterrence; agents have little reason to comply (at least 100% of the time) with the Program. UNC has no mechanism to punish agents who fail to adhere to its new rules and regulations. However, Pogge left no stone unturned in his email. He also referenced North Carolina’s adoption of the Uniform Athlete Agent Act (N.C. Gen. Stat. §§ 78C- 85-105), which has a separate registration requirement for agents with the North Carolina Secretary of State. Failure to register with the North Carolina Secretary of State can lead to an administrative penalty of $25,000 in addition to a potential civil remedy for an educational institute damaged by violation for not being properly registered with the State.
Many agents have scoffed at the state law until recently. However, in March, North Carolina investigators stated that they found Georgia-based football agent, Terry Watson, to have provided illegal benefits to former UNC football players. The threat of the State of North Carolina following up on that claim and taking civil and/or criminal action against Watson may deter agents from violating the statute, but UNC’s new Agent and Advisor Program will do little to remedy the perceived problem of agent influence over student-athletes. If anything, it will unfortunately and unnecessarily chill the speech of student-athletes.
Heitner is a partner at Wolfe Law Miami, P.A. He is also the founder and chief editor of the Sports Agent Blog.
