By Jordan Kobritz
The NCAA is at it again. Last month the governing body suspended Oregon State University pitcher Ben Wetzler for 11 games — 20 percent of the Beavers’ season – for doing what any person in this country not only has the right to do, but should be encouraged to do: Have the assistance of an advisor prior to making a life-changing decision.
Wetzler, who was a fifth round draft pick of the Philadelphia Phillies last June, violated what is referred to as the “no-agent rule” contained in NCAA Bylaw 12.3.2.1. The Bylaw essentially makes a student-athlete ineligible if an agent markets his or her athletic ability. In its interpretation of the Bylaw, the NCAA specifically states that a student-athlete may seek the advice of an “attorney” or “agent,” but that “advisor… may not negotiate on behalf of a student-athlete or be present during discussions of a contract offer, including phone calls, email or in-person conversations.”
Any first year law student would be embarrassed to use the language adopted by the NCAA. Even though the organization employs over 400 people — including way too many attorneys — at a cost of more than $35 million per year, it treats English as if it’s a foreign language. The NCAA uses the words “advisor,” “attorney” and “agent” interchangeably, which of course they aren’t. Is your parent an advisor? What if your parent happens to be an attorney or an agent and listens in on a phone call, is that a violation of the Bylaw?
Furthermore, the NCAA knows it’s on shaky — actually, illegal – ground by trying to limit a player’s right to counsel. That issue was decided in 2009 in the Andy Oliver case. Oliver was drafted by the Minnesota Twins out of high school, but after he and his attorney/agent negotiated with the team, he elected to accept a scholarship offer from Oklahoma State. When Oliver elected to change agents in college, his original agent turned him in to the NCAA which declared him indefinitely ineligible.
Oliver sued and an Ohio court reinstated him, ruling, among other things, that the NCAA has no right to dictate to an attorney how and under what circumstances he could represent a client. Knowing they would lose at a subsequent hearing on damages, the NCAA elected to minimize its losses, settling the case for $750,000. Confident that it can use its financial resources to buy its way out of legal purgatory, the governing body adamantly refused to amend its ways post Oliver.
In an effort to maintain fealty, the NCAA annually sends a questionnaire to all players eligible for the draft as well as to the Major League teams who draft them. Questions are designed to elicit incriminating evidence establishing a violation of Bylaw 12.3.2.1. Virtually all respondents lie, as using or dealing with agents is the industry norm, rather than the exception.
The NCAA’s press release on the Wetzler suspension provides another example of the organization’s bullying tactics. The first paragraph begins, “According to the facts of the case, which were agreed upon by the school and the NCAA…” Note the absence of any input from Wetzler or his attorney/advisor. If Wetzler or anyone in his position wants to contest the charges against them, they must do so without the assistance of counsel. The NCAA and its member institution are lawyered up to the gills, but a (sometimes) underage student-athlete must face his accusers alone? That position is outrageous and unconscionable on its face.
The issue of counsel came up in the James Paxton case in 2010. Paxton, a left-handed pitcher for the University of Kentucky, was alleged to have violated the no-agent Bylaw after being drafted by the Toronto Blue Jays. He refused to attend a hearing on the matter after he was told to appear alone, i.e., without an attorney, or not at all. Never mind that both the NCAA and Kentucky were represented by counsel. Even worse, the hearing would have been a sham as the NCAA and the University had entered into a pre-hearing agreement on the terms of a suspension. After losing a motion for an injunction, an incomprehensible decision, Paxton elected to forego any remaining eligibility and entered the draft.
It should be noted that the NCAA’s justification for Paxton’s suspension was a comment contained in a newspaper article. A member of the Blue Jays’ front office was quoted as saying that the team was confident it could have signed Paxton had his agent allowed the club to speak to the player directly.
All three players — Oliver, Paxton and Wetzler — were suspended for violating the same Bylaw, one that prevents them from having representation. However, the “evidence” against them came from different sources. In Oliver, it was a scorned agent who turned him in to the NCAA; in Paxton, an NCAA sleuth relied on a newspaper report quoting a MLB team official; and in Wetzler, it was a jilted team that reported him to the NCAA.
You and I might think everyone has a constitutional right to an attorney, but the NCAA, as a private membership organization, has been allowed to operate under its own set of rules. But every dictatorship has its day of reckoning. The same kind of ham-handed, uncompromising behavior exhibited in the enforcement of the no-agent rule has led to a plethora of suits against the NCAA seeking student-athlete rights and compensation. Most notable among them are the O’Bannon suit, which involves player image rights; Colter, which seeks unionization for college athletes; and Alston, which challenges the NCAA cap on the value of a scholarship. While the NCAA refuses to “giveth,” the courts will — eventually – most assuredly “taketh” away.
To be fair, the NCAA isn’t the only villain here. Wetzler’s agent should have known better than to participate directly in negotiations with the Phillies. There are ways — albeit farcical in nature — to represent a client without violating the NCAA no-agent rule. For example, agents have been known to camp outside the meeting room during negotiations between their client and a professional organization. If their client wants/needs advice, they merely have to excuse themselves and go next door for consultation.
The Phillies initiated the firestorm by reporting Wetzler, along with Washington State outfielder Jason Monda, their sixth round pick to the NCAA. Although an investigation didn’t turn up enough evidence to suspend Monda, turning the players in to the NCAA makes little sense, even though the team was understandably upset when the players’ elected to return to school. Under the new rules adopted in the last CBA, the team lost the draft picks and the signing bonuses that go with them. However, the Phillies’ actions could result in more harm in the long term. Based on comments from agents and coaches, the team may find their future access to players restricted.
To make matters worse, the Phillies received no benefit from Wetzler’s suspension, which makes the team’s actions purely vindictive. After the Phillies were subjected to a firestorm of criticism, team President David Montgomery apologized – sort of – for the team’s actions. In a major understatement, Montgomery told a Philadelphia radio station, “A different approach probably would’ve been better.”
If the NCAA really had the interests of student-athletes in mind, they would encourage them to seek the best advice possible when weighing a decision to sign a professional contract. However, that wouldn’t be in the best interests of the NCAA or its member institutions. What’s best for them is to treat student-athletes like mushrooms: Keep them in the dark for as long as possible.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor in the Sport Management Department at SUNY Cortland and also maintains the blog: http://sportsbeyondthelines.com Jordan can be reached at jordan.kobritz@cortland.edu.
