Drafted by:
Richard T. Karcher, J.D., Eastern Michigan University
Preamble:
Amateur athletes who are weighing their professional playing career options need an agent’s services in order to make a fully informed decision whether to sign a professional contract. However, the NCAA unduly interferes with the agent-client relationship in a variety of ways that indirectly conflict with state principal-agent laws as well as state bar rules of professional conduct for agents who are licensed to practice law in the state.
The NCAA restricts an amateur athlete’s ability to retain an agent and to have the agent on their behalf speak to, and negotiate with, professional teams or clubs located in the United States and abroad. The NCAA’s general “no agent” rule pursuant to Bylaw 12.3.1 provides, in pertinent part, “[a]n individual shall be ineligible for participation in an intercollegiate sport if the individual ever has agreed (orally or in writing) to be represented by an agent for the purpose of marketing athletics ability or reputation in that sport.” Regarding legal counsel, Bylaw 12.3.2.1 provides: “A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (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.”
In 2018, the NCAA adopted an exception to the general rule by allowing NCAA-certified agents to represent certain men’s basketball players after their season; provided the representation agreement is terminated prior to enrollment in the ensuing academic term. Also, in baseball and men’s hockey, prior to full-time enrollment, players who have been drafted may be represented by an agent provided the representation agreement with the agent is terminated prior to enrollment.
The NCAA rules restrict and/or limit the agent’s ability to effectively represent the interests of the athlete. The NCAA’s general “no agent” rule prohibits the athlete from having an agent engage in any communications with professional team/club personnel. If the agent speaks with team/club personnel and the athlete ultimately decides not to sign a professional contract and instead chooses to enroll in (or return to) college, the athlete is ineligible solely because of the agent’s representation of the athlete. Moreover, the general “no agent” rule prohibits representation agreements with agents which can lead to disputes regarding the terms of the agent-client relationship, including the scope of services to be provided by the agent, the athlete’s right to terminate the relationship, and the agent’s fee for services and the manner in which the fee is to be paid.
An Ohio court recognized the lawyer’s ethical dilemma created by the “no agent” rule:
An attorney’s duty, in Ohio, in Oklahoma, in all 50 states, is to represent his client competently. Perhaps another term is used, other than that of “competently,” within each state’s professional code of conduct, but it all boils down to the attorney being skilled and proficient and simply having the know-how to represent the best interests of his client…. Bylaw 12.3.2.1...stifles what attorneys are trained and retained to do…. The process advanced by the NCAA hinders representation by legal counsel, creating an atmosphere fraught with ethical dilemmas and pitfalls that an attorney consulting a student-athlete must encounter…. But 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.[1]
While the players’ unions in professional sports possess legal authority under federal labor law to regulate and certify agents in their relationship with current and prospective college athletes, the NCAA possesses no authority under any state or federal law to regulate and certify agents.[2]
The NCAA even requires the agent’s client to divulge confidential information and communications related to the representation; e.g., through application and certification requirements for men’s basketball agents and questionnaires sent to high school and college baseball players who were selected in the MLB draft and decided not to sign a professional contract. Failure to provide complete and accurate information upon request is a violation of NCAA rules. Using the threat of ineligibility, the NCAA compels the agent’s client to divulge confidential information pertaining to the agent’s representation of the client, including communications between the agent and client and between the agent and third parties.
Model Statute:
SECTION 1. SHORT TITLE.
This statute may be cited as the “Amateur Athletes’ Right to Representation and Counsel Statute.”
SEC. 2. LEGISLATIVE FINDINGS.
(1) Sports agents serve unique and essential purposes for amateur athletes who are seeking employment opportunities with professional teams/clubs and must make a fully informed decision whether to sign a professional contract or enroll in college (or maintain enrollment). Agents who represent amateur athletes in this capacity are bound by fiduciary duties and responsibilities imposed by state principal-agent law, state bar rules of professional conduct for agents who are licensed to practice law, and agent regulations and certification requirements adopted by professional sport league players associations and state athlete-agent acts.
(2) An amateur athlete must have the right and ability, at any time and without affecting their eligibility to participate in athletics, to enter a representation agreement with an agent for the purpose of marketing his or her athletics ability or reputation in any sport, which may include being present during discussions of a contract offer with a professional sports team or organization or having direct contact and communications with a professional sports team or organization on behalf of the amateur athlete. An amateur athlete’s eligibility to participate in athletics must also not be affected by their refusal to divulge confidential information and communications pertaining to the agent’s representation of the amateur athlete.
(3) An intercollegiate athletics association and its member institutions have no authority under any state or federal statute to regulate and certify agents and must not interfere with the fiduciary duties and ethical responsibilities associated with the agent-client relationship. Amateur athletes must not be subjected to exploitive and unfair regulations and practices of an intercollegiate athletics association and its member institutions, primarily through their denial of the basic right to representation and counsel in seeking employment opportunities with professional sports teams and organizations or their agent certification requirements.
SEC. 3. REGULATION OF AN AMATEUR ATHLETE’S RIGHT TO REPRESENTATION AND COUNSEL.
(a) Grant of representation and counsel rights. Every amateur athlete has a right, at any time, to representation and counsel of an agent in seeking employment opportunities as a professional athlete, which may include communications concerning the prospects of employment and contract negotiations with professional sport team and organization personnel. Such right to representation and counsel by an agent includes a right to enter and maintain a representation agreement at any time and a right of confidentiality concerning any information and communications pertaining to the agent’s representation and counsel of the amateur athlete.
(b) Interference prohibition. A postsecondary educational institution may not adopt or maintain a contract, rule, regulation, standard or other requirement that prevents, restricts or limits an amateur athlete’s rights granted in paragraph (a). Such interference includes—
(1) imposing or threatening to impose any suspension, declaration of ineligibility, or withholding from competition;
(2) demanding or requesting an amateur athlete to divulge confidential information and communications related to an agent’s representation of the amateur athlete; and
(3) demanding or requesting any person or entity to be certified or maintain certification by an intercollegiate athletics association.
SEC. 4. ENFORCEMENT
(a) Civil actions by the state attorney general. In any case in which the attorney general has reason to believe that the representation and counsel rights of an amateur athlete have been or are threatened or adversely affected by a practice that violates section 3(b) of this chapter, the State may bring a civil action on behalf of such amateur athlete in a district court of the United States of appropriate jurisdiction to—
(2) obtain damages, restitution, or other compensation on behalf of the amateur athlete.
(b) Impartial and independent arbitration.
(1) Arbitration right of amateur athletes. In any case in which an amateur athlete has reason to believe that his or her representation and counsel rights are being interfered with in violation of section 3(b) of this chapter, the amateur athlete may have the dispute resolved exclusively and immediately through an arbitration process that adopts the American Arbitration Association’s (AAA) Commercial Arbitration Rules and Mediation Procedures.
(2) Appointment of arbitrator. The arbitrator shall be appointed pursuant to the AAA Commercial Arbitration Rules and Mediation Procedures’ R-12 (Appointment from National Roster) method or, if necessary, R-38 (Emergency Measures of Protection) method.
(3) Enforceability. The arbitrator’s ruling shall be final and binding on all parties, and judgment on the award rendered by the arbitrator may be entered in any court having appropriate jurisdiction.
(4) Fees and expenses. The amateur athlete’s postsecondary educational institution shall be responsible for the amateur athlete’s reasonable attorney’s fees, the AAA administrative fees, any arbitrator compensation and expenses, reporting service fees, and any post-award charges that may be incurred to enforce the award.
SEC. 5. LIMITATION
Nothing in this chapter shall be construed to prohibit an individual from seeking any remedies available under existing Federal or State law or equity, or to limit or affect any fiduciary duties and responsibilities imposed by state principal-agent law, state bar rules of professional conduct for agents who are licensed to practice law, or any agent regulations and certification or licensing requirements adopted by professional sport league players associations and [the state athlete-agent act].
SEC. 6. EFFECTIVE DATE
This act shall take effect ____________.
[1] Oliver v. Nat’l Collegiate Athletic Ass’n, 920 N.E.2d 203, 214-15 (OH 2009), vacated, available at http://caselaw.findlaw.com/oh-court-of-common-pleas/1594423.html.
[2] See Marc Edelman & Richard Karcher, The NCAA’s Agent Certification Program: A Critical and Legal Analysis, 11 HARVARD J. SPORTS & ENT. L. 155 (2020).