Darren Heitner: What percentage of your firm’s work is related to Sports Law?  What about your individual work?

Jay Reisinger: My personal caseload is about 85% Sports Law related.  Sports Law is about 50% of my firm’s total caseload. My firm also handles white-collar criminal defense and complex civil litigation.

Heitner: What is the most interesting Sports Law case you have ever litigated?

Reisinger: I’ve been lucky that in my career in that I have had a number of interesting Sports Law cases.  However, the most interesting Sports Law matter that I handled was Sammy Sosa’s testimony before Congress related to performance enhancing drugs in Major League Baseball.  The shear number of interested parties and competing interests created an intriguing and challenging atmosphere.  It was also the first case that I worked on with James Sharp, a well-known Washington, D.C. trial attorney who has also worked with me on Andy Pettitte and Alex Rodriguez.

Heitner: What are your thoughts on the current final-offer arbitration in baseball?  Any ideas on how to make the proceedings leading up to a hearing, and the hearing itself, more effective?

Reisinger: I believe that final-offer arbitration works to the benefit of the entire salary arbitration system.  Final-offer arbitration encourages mutually agreed upon settlements, which is why, on a percentage basis, very few cases actually go to hearing.  Hearings are reserved for those cases where, in the main, there is a philosophical chasm between the player and the club. Given that the system works well for all parties, I am not in favor of making any modifications to it.

Heitner: Does your negotiation strategy include anything that we won’t find much of in negotiation textbooks?

Reisinger: I’m not sure that I read any negotiation textbooks, so I’m not sure what’s in them!  I truly believe that it’s a skill acquired through experience.  That being said, I have found that the most useful negotiating tactic is preparation.  The ability to quickly counter on specific negotiating points at the table has served me extremely well.  Further, if you prepare for every eventuality, you are never surprised.

Heitner: Should the NCAA’s no-agent rule be abolished, or at least modified?

Reisinger: At a minimum, it should be modified.  The James Paxton and Andy Oliver cases were perfect examples.  How is a college (or potentially college-bound) student supposed to make life-changing decisions without appropriate and experienced counsel?  Quite frankly, the NCAA’s position on the matter is outrageous.

Heitner: You are a certified player agent with the MLBPA. Do you currently represent anybody on a team’s 40man roster? Who have been your more noteworthy clients?

Reisinger: I am a certified agent with the MLBPA, but I don’t represent (as an agent) any player on a 40-man roster.  I represent professional and amateur athletes as an attorney.  I represent athletes in disciplinary matters, grievance proceedings, eligibility matters, criminal and civil litigation, and salary arbitration.  I have represented players such as Sammy Sosa, Andy Pettitte, Alex Rodriguez, and Francisco Rodriguez, just to name a few.

Heitner: Does your firm have any plans to expand outside of Pittsburgh, Pennsylvania or to hire any new associates?

Reisinger: As it stands now, we have a nationwide practice that just happens to be based in Pittsburgh.  We are always looking for talented attorneys and staff who share our passion for the work that we perform for our clients.

Heitner: What would you suggest to somebody who is interested in not only being a sports agent, but practicing in the area of Sports Law?

Reisinger: The most important advice that I can give to those interested in Sports Law is to get practical legal experience in areas outside of Sports Law.  Prior to focusing on Sports Law, I practiced primarily white-collar criminal defense and complex civil litigation.  The experience that I gained in these areas, including litigation skills, has served me, and more importantly, my clients, well.

Q&A With Sports Attorney Jay Reisinger from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

At the very least, the NCAA’s raid of sorts on North Carolina, South Carolina, Georgia and Alabama — those are just the schools we know about — has sent a panic through both college football and the agent community.

The association’s Agent, Gambling and Amateurism Activities department has some useful tools going for it: newfound knowledge; aggrieved parties; a recent history of crushed cheaters and dissemblers; and, of all things, Twitter.

Probably most importantly, the AGA has made better entrée into the agent netherworld and gotten a firmer grasp on how the seamy game works. Unlike the twin USC scandals involving Reggie Bush and O.J. Mayo, the NCAA did not need a media-made road map to investigate the parties-and-plane tickets situation in South Beach. NCAA enforcement is, for a change, in front of the media on this issue, instead of vice versa.

Before you go ahead and start praising the NCAA and its AGA department, there are some things that need to be reported that have not yet been publicized.  Things advisors/agents are noticing, but have not yet been exposed.

One would think that the AGA, a very small group of people who are given the task to follow up on unscrupulous agent leads and follow through with investigations, would be appropriating almost all of its time to enforcing its rules regarding benefits given to football, and maybe even basketball, student-athletes by agents/runners/financial planners/etc.  Think again.

Instead, I’m hearing that even just two days ago, the NCAA called a baseball advisor’s advisee and asked the player questions such as, “How many times has your advisor talked to pro teams on your behalf?” and “How much have you paid your advisor?”  Just when you think the NCAA might be paying attention to issues that might have some importance (the benefits switching hands problem),they revert back to their old ways of just trying to show who is boss for no understandable reason.  Not to mention, the NCAA actually requires student-athletes to pay advisors for the services they provide.

One agent recently told me, “Make sure your guys are well-versed and schooled.”  Apparently, the NCAA has been actively contacting many student-athletes about this matter.

It stems back to the Andy Oliver vs. NCAA battle, which was thoroughly documented step-by-step on SportsAgentBlog.com.  Before Oliver settled with the NCAA, a court in Ohio had declared the NCAA Bylaw 12.3.2.1 (the no-agent rule) null and void.

12.3.2.1 Presence of a Lawyer at Negotiations. A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the individual. A lawyer’s presence during such discussions is considered representation by an agent.

The settlement allowed the NCAA to re-instate the rule immediately, which they did.  Unfortunately, the no-agent rule effectively only hurts student-athletes.  They are not permitted to have proper counsel advising them through the draft process, and if they do have an advisor merely talk to a team on their behalf, their student-athlete eligibility is gone and there goes their biggest bargaining tool in a negotiation with a professional baseball club.  Again, with everything going on lately in the southeastern schools, one would think that the NCAA has bigger fish to fry.

As ESPN.com’s Gene Wojciechowski recently said while discussing the many problems with the NCAA, “It has spread itself a mile wide and an inch deep.”  Herein lies a glaring problem.  There are true problems that the NCAA might be able to fix with effective enforcement.  But in order to do that, it must pick and choose its battles wisely.  To focus on baseball advisors who helping players by providing effective counsel, the NCAA is missing the boat.

Instead, NCAA continues to send out a baseball questionnaire to student-athletes who were drafted, but who did not sign, or who may be drafted in the future.  Student-athletes should not be pressured to answer this questionnaire.  Additionally, student-athletes should not feel the need to respond to investigatory phone calls.

Has The NCAA Lost Its Focus? from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Dez Bryant

Speaking of his agent, Bryant recently signed with Eugene Parker, the agent who made a lot of headlines in 2009 for holding out his client, Michael Crabtree.  Eugene Parker is tied to Deion Sanders.  Sanders is a former client of Parker’s and Bryant trained with Sanders and met with Sanders at Sanders’ house.  When Bryant lied about working and meeting with Sanders, the NCAA came down hard on Bryant, and suspended him for the rest of the 2009 season.

In the past, I have pondered about the extent of Parker’s relationship with Sanders, years after Sanders officially retired from the NFL.  There are reports that Sanders played a role in Crabtree’s holdout and Crabtree, like Bryant, trained at Prime U (Sanders’ training facility).

Sanders publicly stated that Parker had absolutely no role in Bryant’s contact with Sanders prior to Bryant’s suspension.  Is it merely a coincidence that Parker ended up signing Bryant as a client, months after the NCAA suspended Bryant?  Bryant says that while he was meeting with Sanders, Deion never mentioned Parker’s name.

“Deion is my mentor, he’s a great guy,” said Bryant. “[Eugene Parker] is my agent and just to speak on that a little bit, I just want people to know that with Eugene and Deion, neither one talked to me about each other. Deion never talked to me about Eugene Parker. The first time I met Eugene Parker was about four weeks ago. I just felt like the NCAA thought that there was something going on, but I didn’t even know [Parker] then. They thought that Deion was a runner for him, but it wasn’t anything like that. Deion just wanted to be a mentor and make sure everything was right. I felt like there was nothing wrong with that.

Mike Florio of ProFootballTalk.com is not quite convinced by Bryant’s statement.  He uses the fact that Bryant as lied before as a reason why it is possible that he is just lying again.  I understand Florio’s reasoning, but at the same time, when I see what the NCAA does to people like James Paxton, I cannot easily say that the NCAA is justified in any action that it takes.  At the same time, would the NCAA really suspend someone for a majority of his team’s regular season games because he lied about contact with a trainer?  This story is extremely cloudy.

Dez Bryant Speaks About Deion Sanders And Eugene Parker from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

It took a while before mainstream media picked up on the Andy Oliver affair.  Eventually, Andy’s case against the NCAA made national headlines, but before any true damage was done to the NCAA’s practice of restricting the rights of its student-athletes, Oliver settled with the association for $750,000.  Now, there is a new athlete who is tired of the NCAA bullying him.  His name is James Paxton.  Here is some more information about Paxton’s case.  For a brief recap,

Paxton was drafted last year by the Toronto Blue Jays in the Supplemental First Round (#37 overall), but did not sign.  The NCAA is concerned that his advisor, Scott Boras, had direct contact with someone in the Blue Jays organization (against NCAA “no agent” rule).  A University of Kentucky employee basically told Paxton that he would have to sit out from playing and would lose his financial aid if he refused to meet with NCAA investigators for a violation that the NCAA would not disclose.  Paxton took this baby to court.

Last Friday, Fayette County Circuit Judge James Ishmael told Paxton that he will have to sit out of competition until he complies with the NCAA investigation.

The unfortunate consequence of all of this is that informed baseball players and their parents may read about this case and Andy Oliver’s case and say that it is not worth it to hire an advisor for the draft.  The fact that the NCAA is litigating these matters with such vigor will only serve to chill the business of qualified advisors.  In the end, the student-athletes, which should be protected by the NCAA, will end up hurt without the assistance of advisors who understand the business of the game of baseball.

Paxton is the only player picked in the top 100 slots of the 2009 MLB Draft who did not sign, so maybe the chilling effect is not far reaching.  However, even if only one or two student-athletes are affected negatively by the NCAA’s actions against Oliver and Paxton, it is more than what is acceptable.

The Chilling Effect Of The James Paxton Case from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Last night, I was reading the University of Kentucky’s response in opposition to James Paxton‘s motion for a temporary injunction against the university.  If James Paxton’s name does not ring a bell, quickly get caught up by reading this recent post.  Anyway, the most interesting piece of the 86-page document is Exhibit 5.  Exhibit 5 is a copy of an article written by Robert MacLeod in The Globe and Mail.  It was published on August 18, 2009 with the title, Beeston wishes he could have gotten through to Paxton.  Paul Beeston was the interim president of the Toronto Blue Jays, which is the organization that selected Paxton in the 2009 MLB Draft and was unable to sign him before the August 17th deadline.  Here is what caught the NCAA’s attention:

Beeston personally handled the negotiations with Paxton, the top Canadian selected in the draft and his agent is Scott Boras.

When Boras is involved, Beeston said, you can only talk with Boras.

“Because it was Scott, the way that you deal you deal through him,” Beeston said. “You don’t deal through the family. Now I would prefer to deal with the family and I wonder whether I could have done a better job on it. I kind of criticize myself.”

I have a Memo dated May 11, 2009 sent to Baseball Prospective Student-Athletes Who Are Considering Using an Advisor in Connection with the 2009 Major League Baseball First-Year Player Draft.  The fifth paragraph states,

The most important point to remember is that it is impermissible for you to allow your advisor to talk to clubs about you. If you do, the advisor will be considered an agent and you will have jeopardized your eligibility at NCAA schools. [Note: February 12, 2009, in a case entitled Oliver v. NCAA, an Ohio trial-court judge held Bylaw 12.3.2.1 was invalid under Ohio law and as a result a student-athlete was not ineligible if an attorney is present during discussions of a contract offer with a professional team. The NCAA intends to appeal the decision in the Oliver case.]

As you know, the NCAA did appeal the Oliver case and the two sides eventually settled.  Thus, Bylaw 12.3.2.1 is no longer officially invalid; however, many scholars suggested that the NCAA would refrain from enforcing the Bylaw in order to stay out of the public eye.  That is obviously not the case.

Paxton’s attorney’s are not framing the debate on whether or not an advisor is allowed to speak to a professional team on a player’s behalf.  Instead, they are taking the position that Paxton has had his right to due process under the University’s Code of Student Conduct withheld by the University of Kentucky.  They claim that it is the University of Kentucky, not the NCAA, that has power over withholding Paxton from competition, and thus, the university must adhere to its code of conduct, which includes a guarantee that Paxton will not be disciplined based upon his refusal to provide testimony, or without first being provided with a written notice of the allegations against him.  The University of Kentucky says that a temporary restraining order is not appropriate under the circumstances.

The battle seems to be just beginning.

How Will James Paxton’s Case Be Framed? from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

When I first reported on Andy Oliver back on June 2, 2008, no one had heard of him.  Since then, he has made national headlines in every major paper for his lawsuit against the NCAA, which eventually was settled for$750,000.  The antiquated NCAA Bylaw 12.3.2.1 was voided, only to be re-established by the settlement.  It looked like the NCAA would finally receive a blow, but the settlement allowed the organization to remain unscathed ($750,000 is pennies to the NCAA).

Many would say that the NCAA has gone back to its usual tactics of ignoring the rights of student athletes in favor of doing whatever it pleases.  One person who agrees with that statement is Richard Johnson, the attorney who represented Andy Oliver in his lawsuit.  Johnson also has the pleasure of representing another student-athlete who has a solid claim against the NCAA.  This player’s name is James Paxton, and he may have a stronger case than Oliver had.

Just as Oliver was a standout pitcher for Oklahoma State, Paxton is the #1 pitcher for the University of Kentucky.  Oliver was informed of his violation before the NCAA laid down a penalty.  Paxton was not as fortunate.  A University of Kentucky employee basically told Paxton that he would have to sit out from playing and would lose his financial aid if he refused to meet with NCAA investigators for a violation that the NCAA would not disclose.  The employee informed Paxton that when a basketball player cooperated with the NCAA, he only received a 6-game suspension instead of having to sit out the entire year.  Recently, UK has stated that Paxton will not have to sit out.

Paxton was drafted by the Toronto Blue Jays in the Supplemental First Round (#37 overall), largely due to his fastball, which has been clocked up to 98 mph.  He decided to come back to UK for his senior season instead of signing for the offer presented to him by the Blue Jays.  In all likelihood, the NCAA investigation surrounds Paxton’s actions regarding the draft.  Did his advisor have direct contact with someone in the Blue Jays organization?  His advisor was the same man who most recently represented Andy Oliver: Scott Boras.  Boras has already said that he is compliant with NCAA rules and regulations.

“We are compliant with the NCAA rules by mandate,” Boras said. “We have to go to families and charge them for information that we would otherwise not charge for. And we have to go through the bailiwick of having the parents deal with the teams through our counsel, which is crazy.”

The most shady part of how the NCAA has handled this thus far is that the NCAA told Paxton to keep the investigation hidden from his parents and lawyers.

Enjoy the Memorandum in Support of Plaintiff’s Motion for a Temporary Injunction, replicated below.

Andy Oliver Part II? from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Last week, the single game penalty turned into a year-long ban.  The NCAA suspended Bryant for the rest of the 2009 season and any bowl game that OK State might play in.  Oklahoma State appealed the suspension, which seems rather harsh based on the situation (unless there are facts that have been withheld to the public).  We may find out the result of that appeal as early as tomorrow.

It sure seems as if OK State gets picked on a lot by the NCAA.  Remember Andy Oliver?  He played at the same institution before signing with a professional team in the 2009 draft.

The NCAA flexes its muscle again.  Are you impressed?  If Bryant would have solicited advice of an attorney, would the NCAA have pulled an Andy Oliver and tried to say that he was ineligible for that too?

Shouldn’t the NCAA be the advocate for its student-athletes above everything else?  I perceive the institution in a different light.  Its actions lead me to question its purpose at times.  With Brandon Jennings performing at a high level in the NBA (yes, it is a very small sample to look at) after saying no to college and playing a year overseas, shouldn’t the NCAA try to do more to show that it cares about its players.  Suspending them for a season without giving solid justification, makes me think that athletes will want to get in and out (or never in) of college as fast as possible.

Again, if the penalty is merely in response to Dez lying to NCAA officials, then I think it is excessive.  If there are facts unknown to me and the rest of the general public, then that is another story.  OK State was 4-0 without Bryant…until last weekend.  41-14.  Season over.  Reminiscent of last year’s College World Series.

NCAA Dez It Again from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

A huge lawsuit ensued, and if you are not familiar with the slew of events, I suggest you read through our posts on the subject.  A lot was gained by Andy and his attorney, including the voiding of NCAA Bylaw 12.3.2.1, which used to prohibit a lawyer from being present during discussions of a contract offer with a professional organization or have any direct contact (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the individual.  However, that rule now has the force of law behind it once again, now that Andy has settled with the NCAA.

Rick Johnson, Andy’s attorney, believes that it would be a grave mistake for the NCAA to try to enforce that rule, though.  In his words,

So the NCAA can continue to act with its typical arrogance and try to continue to deny student-athletes the right to counsel, or it can realize that it will lose 100/100 of any such future lawsuits over this rule, since no court is going to allow the NCAA to regulate lawyers or prohibit nonmember student-athletes from retaining counsel (Can you imagine what would happen if they had a rule that its members couldn’t have counsel when negotiating their media rights?).  As has been reported recently, the NCAA has sent out a baseball questionnaire to student-athletes who were drafted, but who did not sign, and this questionnaire goes beyond even the bad-faith the NCAA evidenced towards Andy.  No student-athlete legally has to respond to this inquiry, but we’ll see if they are bowed into submission or whether someone decides to challenge this new affront to student-athlete rights.

Oliver settled in turn for $750,000 of consideration.  The Settlement Agreement is embedded below.

Andy Oliver Settlement Terms –

The End Of The Andy Oliver Affair from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Football

• Eli Manning poised to become the highest-paid player in league history in the next month or so? [It's time for the Giants to pay Eli].
• Instead, Ochocinco should release a cage of blue birds after his first touchdown in ’09 [NFL Says “No” to Players Tweeting During Games].

Baseball

• First Andy Oliver, now this [Oklahoma St. faces major rules violation].

Basketball

• The NBPA does not charge any commission [Stephon Marbury Uses Players' Association to represent him as Free Agent].

Sports Agents

• Ralph Cindrich has a nice view [Couple move toward culture of Downtown life].
• I was interning with CS&E when they first brought in Menocal [Menocal's northeast Georgia exploits to last forever in Hall of Fame].
• Commercial is corny, but I’m sure Rosenhaus got paid well by the Panthers [Panthers reduce season ticket prices on thousands of BankAtlantic Center seats].
• Dubbed one of the hottest up and coming agents in the industry [Young Enough:The story of NFL agent Alvin Keels].

Social Networking

• How can this site be utilized? [Jockipedia: A Social Media Database of Pro Athletes].

Shabbat Shalom: Friday Wrap-Up (7/10/09) from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

12.3.2.1 Presence of a Lawyer at Negotiations. A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the individual. A lawyer’s presence during such discussions is considered representation by an agent.

Voiding that Bylaw would mean that at a minimum, a lawyer could be present during discussions of a contract offer and may have direct contact with the organization.  However, the NCAA continued to enforce the Bylaw in lieu of abiding by Judge Tone’s Opinion and Judgement Entry.  That is all about to change.

A vacated order from May 6 includes this passage from Judge Tone:

“In regards to the February 12, 2009 Opinion and Judgment Entry, the Court determined that Bylaw 12.3.2.1 is void and granted Plaintiff’s request for declaratory judgment and injunctive relief.  Contrary to Defendant’s rhetoric, the February entry did not presume to void an NCAA rule, it did void an NCAA rule.  See, p.5 of Defendant’s Opposition.  In that respect, discussions of how to proceed without Bylaw 12.3.2.1 should be discussed by the NCAA and its member institutions.  Make no mistake, however, that wherever the NCAA is located, the ruling of this Court should be currently maintained and Bylaw 12.3.2.1 is void, not presumed void, until and unless an appellate review would determine otherwise.”

Judge Tone is pretty clear in his statement.  And in case you think the NCAA has reason to believe that this order cannot be applied nationwide, the attorney for Andy Oliver says otherwise:

Also, reporters have asked me how an Ohio court’s order could have any effect outside of Ohio, and the answer is that the court has personal jurisdiction over the NCAA, which is an Ohio citizen, and thus the order applies to the NCAA wherever it may be or go.  The analogy would be a court granting a protective order to a wife, the husband follows her out-of-state and violates the protective order, and the court punishes the husband upon motion, because the order applied to the person–not to the location, as long as the court has jurisdiction over the person.  I hope that makes sense.

Makes sense to me.

NCAA Bylaw 12.3.2.1 Is Void from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules