Article published October 15, 2009
NCAA settles suit challenging adviser policy
FROM BLADE STAFF AND NEWS SERVICES
SANDUSKY - A college pitcher's lawsuit that challenges an NCAA rule barring college baseball players from hiring advisers to negotiate contracts with professional teams exposed potential problems with the policy. Now the question is whether the NCAA will alter the rule.
For now, a settlement reached between the NCAA and Andrew Oliver, a former Oklahoma State pitcher, keeps the rule in place. The NCAA agreed to pay Mr. Oliver $750,000 last week to drop the suit, days before it was to go before a jury.
It was an unusual move for the NCAA, which rarely settles suits brought against it because it wants to discourage copycats from coming forward.
Dan Lazaroff, a professor and director of the Loyola Sports Law Institute in Los Angeles, said the willingness to settle could indicate that the NCAA is looking to drop or change the rule to avoid future lawsuits if the situation should again arise.
Gabe Feldman, director of the sports law program at Tulane University, said the biggest problem with the rule is that it allows players to negotiate with a team and get help from a professional adviser or attorney - it just doesn't allow the adviser to have any contact with the team.
"They're trying to have this delicate balance," Mr. Feldman said. "If the goal is to truly protect the players' best interests, this seems to fall short."Mr. Oliver, a second-round draft pick by the Detroit Tigers this year, filed the lawsuit against the NCAA after he was ruled ineligible for using legal advisers to negotiate with the Minnesota Twins when he was drafted coming out of high school in 2006.
The NCAA said advisers he had hired listened in on contract negotiations. It didn't find out until Mr. Oliver was a junior at Oklahoma State and suspended him just before a NCAA tournament regional game in 2008.
Baseball players - unlike those in football and basketball - can be drafted before they've entered college, prompting many to seek legal advice during negotiations.
Mr. Oliver's attorney, Richard G. Johnson, said the NCAA puts players at a huge disadvantage by allowing them to negotiate with professional teams without having a lawyer on their side.
"I was astonished to see how the NCAA behaves," he said. "The student-athletes have no lawyers, no rights. It's a huge detriment."
Rick Karcher, a former sports agent who heads the Center for Law and Sports at Florida Coastal School of Law, said it's no secret that most top prospects have an agent or adviser helping them negotiate deals.
The NCAA, though, has suspended only a handful of baseball players for doing that.
"It's an arbitrary rule," Mr. Karcher said. "I suspect most judges would see it that way too."
Yet Matt Mitten, director of the National Sports Law Institute at Marquette University in Milwaukee, cautioned against reading too much into the NCAA's motives through its decision to settle.
"Now I wouldn't be surprised if they actually went back and re-evaluated this rule, but that doesn't necessarily mean that they will change it," Mr. Mitten said. "The NCAA has been very stringent about how they have enforced the no-agent rule and other amateurism rules because they believe that that's one of the things that distinguishes college sports from pro sports."
Mr. Oliver's attorney filed the lawsuit in Ohio because the alleged violation occurred just after Mr. Oliver had graduated from Erie County's Vermilion High School.
Erie County Common Pleas Judge Tygh Tone in February said the adviser rule was impossible to enforce.
He ordered the NCAA to reinstate Mr. Oliver and struck down the NCAA's rule on advisers.
His ruling was vacated when Mr. Oliver and the NCAA finalized their settlement last Thursday. That kept the rule in place, but doesn't mean it can't be challenged again.
Mr. Mitten, who is a graduate of Toledo's St. John's Jesuit High School and the University of Toledo College of Law, added that it's rare for a court to go against the NCAA, especially when it comes to rules on amateurism.
All told, he doubts the NCAA will change its stance on prohibiting advisers from being directly involved in negotiations, noting how the Erie County judge's ruling, which was vacated, no longer sets new precedent.
"I don't see it as overreaching," he said. "You just can't be in the room. All the lawyer would have to do is be outside. The kid can still sit down with his lawyer."
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