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

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

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

But decisions such as these, and commentary that wishes to abolish the system without working through the system to promote prudent reform for all constituents involved are not offering anything of value.

Thoughts?

A Provocative Response To The Andy Oliver Ruling from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules

Breach of Contract establishes that there is a contractual relationship between the NCAA and its member institutions (universities).  No contract is created between the NCAA and student-athletes once student-athletes sign an LOI or accept a financial aid package.  BUT, an action of breach of contract by a 3rd party can be brought where the parties to a contract intended to benefit the 3rd party.  So if the NCAA and a university are bound to a contract intended to benefit a student-athlete, does that mean that an action of breach of contract by the student-athlete can be brought?  Yessir!

The Good Faith and Fair Dealing section (starting on p. 13) says that NCAA Bylaw 12.3.2.1, which attempts to limit an attorney’s role in providing legal counsel to a student-athlete, is impossible to enforce and allows for exploitation of the student-athlete by professional and commercial enterprises.  The No Agent Rule was ruled to be unreliable (capricious) and illogical (arbitrary).  No entity, other than that one designated by the state, can dictate to an attorney where, what, how or when he should represent his client.

The actual Judgment Entry states that NCAA Bylaw 12.3.2.1 is void and that NCAA Bylaw 19.7 is overreaching and interrupts with the judicial power of the court system.  The Court reinstated Andy Oliver in good standing immediately and ordered that no further punishment be weighed on him by the NCAA or OSU.  A jury trial will begin on March 31, 2009 to determine if any monetary damages should be granted to Oliver..

Does the Judgment Entry now allow student-athlete advisors to have direct communication with scouts?  At a minimum, can an advisor be in the same room as a student-athlete who is negotiating numbers with a scout?  The Opinion clearly states that the NCAA cannot tell an attorney where, what, how or when he should represent his client, but what about an advisor who is not an attorney?  Will a non-attorney advisor have the same rights as an attorney-advisor?  There are still many questions left to be answered, but for now, it seems like a major victory for Andy Oliver, student-athletes, and athlete-advisors.

Round 1 Goes To Andy Oliver 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

Directly from the order granting a temporary restraining order:

This Court finds that the Plaintiff will suffer immediate and irreparable harm, if this Court does not grant the preliminary injunctive relief sought herein, there is a certain threat of the same, and the Plaintiff’s remedies at law are therefore inadequate for that reason.

This Court finds that of great importance is the continuing and ongoing damage to the Plaintiff’s reputation, and the fact that he will again be subjected to his classmates disapproval and scrutiny, when he restarts school on August 18, 2008, if this injunctive relief is not immediately granted.

The TRO will last for twenty-eight days following the order granted by the Court on August 15th.  It may be extended at its conclusion.  This is definitely a win for Team Andy.  Now they will go on offense and try to get some of their complaints through the system.

Andy Oliver Update from Sports Agent Blog - Sports Business, Sports Law, Sports Negotiations, NCAA Rules