Judge Attacks NCAA Rule that Prohibits Student Athletes from Having Lawyers Present During Negotiations

Mar 13, 2009

An Ohio state court judge has held that an NCAA rule, which makes a student athlete ineligible if he or she has a lawyer present during contract negotiations with a professional sports team, is illegal since it interferes with an athlete’s right to legal representation.
The decision, which allows Oklahoma State University pitcher Andy Oliver to remain eligible, was significant because courts are typically hesitant to interfere with an association’s bylaws, especially with regard to the NCAA.
Judge Tygh M. Tone, however, found that NCAA Bylaw does not accomplish the NCAA’s goals of serving as a demarcation point between amateurism and professionalism. Because the rule can be muted, depending on the specific situation, it can be deemed arbitrary. Furthermore, the Bylaw contradicts a principle that is prevalent in all state courts — the right to legal representation.
The instant decision cemented the court’s grant of a temporary restraining order last August that restored Oliver’s eligibility to pitch for the Cowboys.
The origins of the case extend back several years ago when the Minnesota Twins drafted Oliver after his senior year of high school. Oliver claimed that he retained – for free – attorneys Robert and Tim Baratta to advise him on whether to accept the offer from the Twins or go to college. The NCAA allows players to take on advisers, as long as they are unpaid and they don’t communicate directly with any professional teams on the player’s behalf.
During his sophomore year at OSU, he replaced the Barattas’ with agent Scott Boras. The Barattas’ then mailed the Oliver a bill for more than $100,000 for their services. A dispute ensued, with Oliver claiming that he had only agreed to pay the Barattas’ a percentage of a future professional contract.
Robert Baratta then wrote to the NCAA, alleging Oliver had committed violations, paid them, and that the Barattas’ had acted as his agent. He also claimed that Boras had offered Oliver inappropriate benefits—which Oliver denied—including pitching lessons and baseball equipment. By the end of May, Oliver was the subject of a joint investigation by the NCAA and Oklahoma State. When they declared him ineligible, officials did not mention Boras, citing only improper contact between the Barattas’ and the Twins.
In the instant opinion, the court tipped its hand early on, about its direction, noting that “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 NCAA. 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 NCAA.”
The court was not done.
“For a student athlete to be permitted to have an attorney and then to tell that student athlete that his attorney cannot be present during the discussion of an offer from a professional organization, is akin to a patient hiring a doctor, but the doctor is told by the hospital board and the insurance company that he (the doctor) cannot be present when the patient meets with the surgeon because the conference may improve the patient’s decision-making power. Bylaw is unreliable (capricious) and illogical (arbitrary) and indeed stifles what attorneys are trained and retain to do.”
The court went to ask several rhetorical questions, such as, “What occurs if the parents of a student are attorneys, or for that matter sports agents? What would have happened of Tim Barattta had been in the kitchen or outside or on the patio instead of in the same room as his client when the offer from the Minnesota twins was made to plaintiff?”
The court then tendered advice to the NCAA, writing that if it “intends to deal with this athlete or any athlete in good faith, the student-athlete should have the opportunity to have the tools present (in this case an attorney) that would allow him to make a wise decision without automatically being deemed a professional, especially when such contractual negotiations can be overwhelming, even to those who are skilled in their implementation.”
Next the court turned to whether controversial Bylaw 19.7 is arbitrary or capricious.
That Bylaw reads: “If a student-athlete who is ineligible under the terms of the constitution, bylaws or other legislation of the Association is permitted to participate in intercollegiate competition contrary to such NCAA legislation but in accordance with the terms of a court restraining order or injunction operative against the institution attended by such student-athlete or against the Association, or both, and said injunction is voluntarily vacated, stayed or reversed or it is finally determined by the courts that injunctive relief is not or was not justified, the Management Council may take any one or more of the following actions against such institution in the interest of restitution and fairness to competing institutions.” The Bylaw goes on to state any number of penalties.
The court went to note that “just because” NCAA members agree to a bylaw does not mean that it is “sacrosanct, or that it is not arbitrary and/or capricious.” The court went on to suggest that the bylaw “fosters a direct attack on the Constitutional right of access to courts.
“Bylaw 19.7 takes the rule of law as governed by the courts of this nation and gives it to an unincorporated business association. The Bylaw is overreaching. 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 directed by the Court’s ruling and in so doing face great harm should the decision be reversed on appeal? Alternatively, does the institution, in fear of Bylaw 19.7, decide that 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.”
Oliver v. NCAA et al. Common Pleas Ct. of Erie Co., Ohio; Case No. 2008-CV-0762; 2/12/09
Attorneys of Record: (for plaintiff) Richard G. Johnson. (For defendants) . Linda J. Salfrank and Kimberly W. Herlihy


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