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.

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.

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 –

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.

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?

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.

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…

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.

Darren Heitner, who runs sportsagentblog.com and has followed the affair closely, said that in the scheme of things any possible violations are minor.

“The problem here is that while the NCAA tries its best to distinguish advisers from agents, often times there’s a gray area,” Heitner said. “I’m not trying to draw any conclusions, but compared to a lot of the infractions you have going on this Andy Oliver affair is very small. They have a lot bigger fish to fry.”

I am all for weeding out those who violate the rules and regulations that bind our profession; however, I believe that the NCAA is appropriating way too much attention to this story when there are many larger issues that it must confront.  Do you agree?

61.  Under the Defendant OSU’s Student Code of Conduct, the Plaintiff had a right to the following: “Accused students have the right to: 1. a written notice of the alleged violation(s); 2. have no code violation assumed until proven; 3. a timely hearing; 4. be accompanied by an adviser… 5. review the evidence; 6. question his/her accuser, either directly or indirectly, at the discretion of the hearing panel chair; 7. question witnesses…; 8. present material witnesses; 9. waive his/her right to a formal hearing and have the matter resolved informally; 10. a written notification of the outcome of the hearing; 11. an avenue for appeal from a formal hearing.” OSU Student Code of Conduct Rule IV(B).

62. …there was not written notice provided of what he was alleged to have done wrong, he was presumed guilty rather than innocent, there was no hearing, no advisor, no opportunity to review evidence…

63.  Instead, the Defendant OSU did the following…

Basically says that OSU violated the anti-contact rule and illegally used confidential attorney-client privileged information.

64.  In Gestapo-like fashion, the Defendants OSU & NCAA interviewed the Plaintiff without an attorney present…which additionally violated the anti-contact rule…

A Jewish judge (do they have any in Erie County, Ohio?) would eat that up.