I want to start this article by stressing that the point of this article has nothing to do with getting any player in trouble.  The reason that I wrote this post is to once again try to point out how ludicrous the NCAA’s no-agent rule continues to be.  It was struck down by a court of law, only to be re-instated after a player (Andrew Oliver) settled with the NCAA so that he could move on to focus on becoming a Major League baseball player (which he did very fast!).  Even since the rule’s was re-established (the NCAA would like you to believe that it was never actually off the books), it has proved to be nearly impossible to enforce, yet the NCAA continues to try to find ways to use it.  I know that because advisors tell me about some of the questions the NCAA has asked the players they are advising over the past year.

Yesterday, I talked about The Continuance Of Advisor/Club Communication.  I discussed James Paxton’s punishment for not complying with NCAA demands after the NCAA had reason to believe that his advisor had direct communication with the Blue Jays, the likelihood that the same could have happened to Jameson Taillon, had he not signed with the Pirates, based on what was said in the Pittsburgh Post-Gazette, and concluded with the statement that advisors are going to continue to talk directly to teams, no-agent rule or not.

While Taillon is immune from the NCAA coming down on him for what was written in the Pittsburgh Post-Gazette, might Karsten Whitson not be as lucky after he failed to sign with the San Diego Padres?  The tall right-hander from Chipley, Florida could not come to terms with the Padres, and will instead play at least three years at the University of Florida.  People are already clamoring about how college hitters will have no chance against his slider.  But a couple of articles mention that Whitson might not have been doing his own negotiating, having his advisor, Troy Caradonna of SFX Baseball do the talking.

From Corey Brock of MLB.com,

“San Diego owner Jeff Moorad, a former agent himself, said he was disappointed that the first number presented to the team by Caradonna was just 15 minutes before the deadline and was $2.7 million, and that he felt sorry for Whitson in the end.”

And from Nick Canepa of the San Diego Union-Tribune,

Moorad: “… We feel were misled by the agent, and it’s something we won’t forget. Lesson learned.”

If Caradonna was not doing the negotiating, Moorad should have known better than to say those words to a reporter, since it was not all that long ago that Moorad was in Caradonna’s shoes.  The NCAA follow up on this with some questions for Whitson.  I am hoping that Moorad’s statements do not end up hurting Whitson, though, and not only because he is committed to play at my alma mater.

Will Advisor Communication Hurt Karsten Whitson? from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Andy’s team of attorneys filed a complaint against the NCAA, which resulted in a temporary restraining order (TRO) issued against the association (meaning that the NCAA had to immediately reinstate Andy Oliver’s collegiate eligibility.  The NCAA then filed a motion to dismiss the complaint, which was denied last Friday (December 12).  The Court’s opinion did say that Andy and his attorneys must join Oklahoma State University to the complaint; however, since OSU is a necessary party and its presence is needed for a determination of the entire controversy. Since OSU has the final say in whether Andy is athletically eligible to play baseball, he will have to join OSU as a defendant in the upcoming case.

Mark your calendars for January 5th, because a matter that I once assumed would be settled before ever going to court may now make its way to the bench.  If the case is heard, it has the potential to bring the NCAA down a few pegs.  The Court has already noted that there is a contractual relationship between the NCAA and its student-athletes.  What is left to determine is whether that relationship has been breached and if compensatory and punative damages should be awarded.  If punative damages end up being granted, it will really hurt the NCAA.  The damages could reach large numbers if a court finds that the NCAA has been using a strong hand against many potential plaintiffs who never had the resources or the will to go after its potential violations in its contractual relationships.  As far as compensatory damages go, Andy was not making any money as a collegiate athlete, but he may be compensated for any pain and suffering relating to sitting out of playing for his competitive team and potential loss of valuable “growing time” as an athlete in a very competitive market.

This should be a very interesting case to follow.  If only all parties would have just let Andy play in the beginning…

They Still Won’t Let Andy Play from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Andrew Oliver had just finished his senior year at Vermilion High School in Ohio. He posted an impressive record of 6-0, but even more worthy of praise was his 0.40 ERA. Add in 108 strikeouts in 52.7 innings, and you have a prime prospect for the MLB Amateur Draft. Robert Baratta definitely thought so.

Like many players looking to get drafted tomorrow and Friday in the MLB Amateur Draft, Andy picked an advisor to help guide him in making a decision to accept the offer presented by the team that would pick him, or decline it and attend college to improve his stock. The advisor selected was Robert Baratta of the New York law firm Baratta Partners. Oliver had heard of Mr. Baratta through his one-time Cincinnati AAU teammate, Cameron Maybin, who is on the Florida Marlins 40-man roster, and is a current client of Baratta’s. Andy was selected by the Minnesota Twins in the 17th round, but Baratta advised him to decline the offer and to go college instead. Barrata continued to advise Andrew Oliver on selecting an institution of higher education. Andy eventually chose to accept a scholarship at Oklahoma State and retained Baratta as his advisor.

Baratta claims that when Andrew Oliver first selected Robert Baratta as his advisor, Andy had orally agreed to an engagement letter with Baratta Brothers which said that Andy would owe the NY firm $350 per hour of service provided. Baratta additionally claims that based on such rate, Andy racked up a legal bill of $113,000. As an October 2, 2007 Memorandum from the NCAA states,

Finally, it is important to note that in order to maintain your eligibility at an NCAA school, if you receive assistance from an advisor, you will be required to pay that advisor at his or her normal rate for such services.

This should be a lesson to all players who plan on taking on an advisor: fully understand what you are getting yourself into. Some advisors are content with taking a percentage off the top of a player’s signing bonus. Others, like Baratta, charge an hourly fee. All of my agreements propose that Dynasty take a percentage of a player’s signing bonus, but no flat hourly fee is accrued. That does not mean that a law firm is prevented from entering into such an arrangement with a client. Andy may have to take a hit by formerly agreeing to such terms, but he should not have to sit out any more college games.

On March 31, 2008, Andy Oliver decided he wanted out. He terminated his advisory relationship with Baratta and selected Boras Corp as its replacement. The NCAA is currently investigating the methods used by Boras Corp to persuade Andy to switch advisors and whether any Oklahoma state law was violated in the process. When Andrew Oliver switched advisors, Baratta came after Andy for the money that the attorney-advisor believed he rightfully deserved.

Andrew Oliver believed and continues to feel that he does not owe Robert Baratta the $113,000 that has been sought after. Instead of personally responding to Mr. Baratta, attorneys at Boras Corp sent the New York based agent a letter which reads,

Re: Collection Matter: Andrew Oliver, File No. 1080

Dear Mr. _________

We are in receipt of your letter to Mr. Andrew Oliver dated March 31, 2008. Please call our office at __________________ at your earliest convenience to discuss.

Sincerely,

George Vujovich (Attorney) Ryan Lubner (Attorney)

Name and phone number left out to protect parties involved.

The above information contains everything in the fax that commentator, mike, sent me. His belief is that Scott Boras and Boras Corp did something to violate the NCAA Rules, which are laid out in the October 2, 2007 Memorandum.

12. Is an agent allowed to provide me any benefits?

NO! You, your family, or your friends are not permitted to receive any benefits from an agent. Examples of material benefits include money, transportation, dinner, clothes, cell phones, jewelry, etc. However, benefits may also include, but are not limited to, activities such as tryout arrangements with a professional team and coordinating tryout schedules.

By sending the letter to Barrata, did Boras Corp’s attorneys violate this paragraph? Commentator, mike, ardently says, yes. The claim is that Boras Corp does not routinely delve into normal collection matters. Personally, I do not believe that sending a letter on behalf of someone that you advise is a material benefit, but even if it were, who says that Andy will not pay for the service that was provided? Obviously, you can bill the client that you advise after the fact. That is what this whole controversy is about…whether or not Andy Oliver should have to pay $113,000 for services that Baratta provided earlier in their relationship. Did Andy agree to the engagement agreement? Did Boras Corp violate NCAA rules? A lawsuit and NCAA investigation will determine both matters.

So here we are left to wonder how Andrew Oliver got himself in the middle of this huge mess. The kid is ridiculously talented on the mound. He impressed scouts in high school and was drafted fairly high by the Twins. He led OSU to the NCAA Tournament and the team was counting on him to give a few more solid starts in an effort to advance to Omaha. But the firing of an advisor, the hiring of another, and a $113,000 bill got in the way of an amateur’s dream, and his teammates and university ended up paying the price. In the end, who wins? I beg that the NCAA scrap Andrew Oliver’s indefinite suspension and I hope that young players and their families take away some useful information from this messy situation.

Let Andy Play.

Let Andy Play from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Oklahoma State LHP, Andrew Oliver, is a stud on the mound. In 2006, he was drafted in the 17th round by the Minnesota Twins. He declined joining the Twins organization and instead helped his OSU team break the top 25 college teams in the nation this year with his arm and his heart. In fact, the Sophomore was named Big 12 Player of the Week back in April, after pitching a complete game three-hitter. He was later named to the first-team All-Big 12. This would be the type of guy that a manager wants pitching in an important game that could decide the school’s season. Unfortunately, on May 31, against a strong Wichita State team looking to advance in the CWS, OSU coach Frank Anderson did not have Andy as an option. All because Oliver spoke to someone claiming to be an agent?

The Oklahoma State Cowboys lost the Saturday night game to Wichita State. The result may have been different had the baseball been in Andy Oliver’s left hand. Andy was labeled indefinitely ineligible to perform for the rest of the season, which included yesterday’s day game against TCU and the night match-up against same team from Saturday, Wichita State. OSU won a thriller against TCU, but fell to Wichita State. The team’s season is over…but why?

The whole issue is over whether Andy Oliver had an adviser or an agent. Time to go old-school and reference a post that I wrote back in August of 2006: Agent or Advisor?

Section 12.3.4 of the NCAA Bylaws explicitly allows for adviser panels to exist. Importantly, it states that an adviser can review a proposed professional contract, help in securing tryouts with teams, and even assist a student-athlete with the selection of an agent.

Main benefit of being labeled as an adviser: Your friend (client) can maintain NCAA eligibility – this allows a player considering leaving college early for the pros to return to his/her college team if contract negotiations with a professional team fails. Signing with an actual agent would end friend’s (client’s) college eligibility.

Let me add an additional important item that is sent to college baseball players in a memo titled, NCAA Major League Baseball (MLB) First-Year Player Draft, Agents, and Tryouts:

Question: Am I permitted to have an adviser during this process?

Answer: Yes, provided the adviser does not market you to MLB teams. However, an adviser will be considered an agent if they contact teams on your behalf to arrange private workouts or tryouts.

The Oklahoman wonders, Did Oliver recently drop his adviser, and is this his former adviser’s way of “getting even”?

An inside source tells me that Andy Oliver’s family had an agent advising them while Andy was in high school leading up to the point he was drafted. His family recently started getting advice from a different agent and it ticked the first group off because it became apparent they would not get his signature on a dotted line after his junior year (next year). The first group decided to get even and billed the Oliver family $90,000 for 300+ hours of advice. The family told them to shove it because advice is free and that is how all agents get business. In this case the agent firm decided to get real scummy and turned in an allegation to the NCAA in which they alleged Andy accepted small items of value from them.

If the statement above is true, then yes, sleaziness has gone that far…far enough to intervene in an amateur event. When an agent sticks his nose into a situation and starts to change the landscape of amateur sports, then we as a profession have some serious reforming to do.

World Series Sleaze from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules