By Jordan I. Kobritz
Our criminal justice system is based on the premise that defendants are innocent until proven guilty. But the recent case of James A. Paxton v. University of Kentucky proves that concept doesn’t apply to student-athletes who play for member institutions of the NCAA.
Paxton is a left-handed pitcher who was selected by the Toronto Blue Jays with the 37th pick in the 2009 Major League Baseball free agent draft. He turned down a seven-figure signing bonus to return to school for his senior year and help the Wildcats win a College World Series title.
Last fall, Paxton was advised by UK Senior Associate Athletic Director Sandra Bell that the NCAA wanted to interview him concerning discrepancies between an eligibility affidavit the pitcher has signed for the University and a blog entry written by a Toronto sports writer. In his affidavit, Paxton stated he did not give anyone consent to negotiate with any professional team on his behalf.
However, the blog quoted Blue Jays President Paul Beeston as saying he wished he could have spoken directly with Paxton and/or his family instead of dealing with the player’s agent, Scott Boras. If true, such conduct would have constituted a violation of NCAA Bylaw 12.3.2, which prohibits an attorney from negotiating a contract with a professional team on behalf of an amateur player. The bylaw allows student-athletes to seek advice from attorneys, but then limits the how, what and when of representation.
Boras is the most prominent baseball agent on the planet and has been “advising” amateur athletes for nearly three decades. He has emphatically denied ever violating NCAA Bylaws in the course of such representation.
Bell suggested that if Paxton cooperated with the NCAA, his suspension would be reduced, thereby allowing him to pitch for the Wildcats during the conference portion of the 2010 baseball schedule. Bell also advised Paxton not to tell anyone – including his parents – of the interview request, and not to consult with an attorney. Believing that he would face a suspension even if he submitted to the interview, Paxton engaged an attorney.
Paxton’s attorney was told by Mitch Barnhart, UK’s athletic director, he would not be allowed to play for the team unless he submitted to the NCAA interview. The reason for withholding Paxton from competition is the NCAA’s restitution hammer, Bylaw 19.7, which allows the governing body to retroactively punish member institutions if the NCAA determines that a player was ineligible.
Paxton’s attorney sought an injunction in the Fayette Circuit Court (09-C1-06404) which would allow him to play pending a resolution of whatever the charge against him might be.
The Circuit Court judge refused to grant Paxton’s request. The case was appealed to the Court of Appeals (KY Court of Appeals 2010-CA-000178-I) which affirmed the lower court decision. Without an injunction, Paxton’s 2010 season would be lost, as the case could not be heard and decided prior to the end of the Wildcats’ schedule. Early in March, Paxton withdrew from school.
Paxton’s legal claims included a request for declaratory judgment against the University of Kentucky, arguing that the University couldn’t “compel him to submit to an interview with the NCAA as a precondition to participating as a member of the UK baseball team.” In addition, Paxton alleged “that the University committed breach of contract and breached a covenant of good faith through its failure to inform him of any allegations of wrongdoing or misconduct against him in violation of Section 2 of the Kentucky State Constitution and his rights under the University’s Student Code of Conduct.”
The University’s response was that Paxton had not been charged with any violation by it or the NCAA, and he had not been suspended from the baseball team.
The lower court refused to grant an injunction based on several factors. First, the court didn’t believe that Paxton would suffer irreparable harm if the injunction was not issued. The University testified that they were prepared to honor Paxton’s scholarship even if he did not play for the baseball team. Because he could continue with his education, the court stated there would be no irreparable harm justifying an injunction.
Second, the court said that the reason Paxton couldn’t play baseball for UK was within his control. If he submitted to an interview with the NCAA, he would be allowed to play for the University.
But the court failed to acknowledge the testimony that Paxton had been told if he submitted to an interview with the NCAA, there would be a subsequent suspension from the baseball team. Furthermore, the court failed to grasp the fact that not being allowed to play baseball was an irreparable injury, one that justified an injunction.
Third, the court said the University’s Student Code of Conduct (SCC) didn’t apply here because Paxton isn’t entitled to a student code hearing to address his NCAA eligibility. The court may have been right on that issue, but Paxton’s reliance on the SCC wasn’t based on his eligibility, but rather on the fact the University hadn’t charged him with any violation and yet prohibited him from playing baseball.
In hindsight, Paxton may have fared better if he had submitted to an interview with the NCAA, and after the inevitable suspension, challenged Bylaw 12.3.2 in court, as was done in the Oliver case. In that case (Andrew A. Oliver vs. NCAA, et al, Erie County (OH) Court of Common Pleas, 2008-CV-0762), Andy Oliver, a left-handed pitcher for Oklahoma State University, was suspended when it was learned his attorneys were present during negotiations with the Minnesota Twins after Andy was drafted out of high school. When Oliver challenged his suspension in an Ohio state court, Judge Tyge Tone threw out Bylaw 12.3.2 as “unreliable (capricious) and illogical (arbitrary) and indeed stifles what attorneys are trained to do.”
Judge Tone also voided Bylaw 19.7, the NCAA’s restitution provision, saying it was “overreaching and interferes with the judicial power of the court system.”
Unfortunately for Paxton, on Oct. 8, 2009, just days before a scheduled hearing on damages, Oliver accepted a $750,000 settlement from the NCAA. Judge Tone’s decision was vacated and the case dismissed, providing no precedent value to Paxton or his attorneys.
The final chapter in James Paxton’s college career has been written. He was never charged with bylaw or rules violations by either the NCAA or the University of Kentucky; he wasn’t found to be ineligible by the NCAA or UK; no punishment was ever “officially” handed down. And yet he was not allowed to play baseball for UK. Paxton’s crime was the failure to prove his innocence.
Jordan Kobritz is an assistant professor at Eastern New Mexico University, where he teaches sports law. Prior to joining ENMU, he practiced law in Bangor, Maine, and later owned and operated two Minor League Baseball teams: the Class AAA Maine Guides and the Class A Daytona Cubs. He can be reached at Jordan.Kobritz@enmu.edu
