As high school students end their winter sports schedules and spring sports participants begin play across the country, the role and significance of agents and their use by amateur athletes as they prepare for possible selection in the upcoming Major League Baseball (MLB) amateur draft and the NHL Entry Draft is once again front and center. The NCAA’s Division I autonomy council has voted to permit men’s hockey prospects to be represented by an agent in the NHL Entry Draft without jeopardizing their college eligibility should they fail to successfully negotiate a professional team contract.

This was a benefit under NCAA rules previously enjoyed only by high school baseball players drafted in the Major League Baseball (MLB) amateur draft.

The authorized use of an agent will not affect the player’s college eligibility.

The player will be able to continue his career as a collegiate athlete should the agent fail to negotiate an agreement with the professional team on the player’s behalf. According to the new rules, the drafted player must pay the agent his or her standard fee for services. However, a student-athlete may not receive any other benefits from the agent beyond negotiation services. In addition, if the student-athlete decides to forego a professional hockey career and retain his college eligibility, he must sever all ties with the agent before commencing full-time enrollment and beginning his college academic and athletic experience.

The new measure formally amends Bylaw 12.3. The general no-agent rule on intercollegiate sports (12.3.1) remains unchanged.

Amended Bylaw provides the exception and extends the authorized use of an agent for men’s hockey as follows: Exception — Baseball and Men’s Ice Hockey — Prior to Full-Time Collegiate Enrollment.

In baseball and men’s ice hockey, prior to full-time collegiate enrollment, an individual who is drafted by a professional baseball or men’s ice hockey team may be represented by an agent or attorney during contract negotiations. The individual may not receive benefits (other than representation) from the agent or attorney and must pay the going rate for the representation. If the individual does not sign a contract with the professional team, the agreement for representation with the agent or attorney must be terminated prior to full-time collegiate enrollment.

Despite this small step, the NCAA still fails to address how similarly situated college baseball players and hockey players can receive advice from an agent on a possible professional contract while retaining their college eligibility.

The NCAA bars any college baseball or men’s hockey player with remaining eligibility from having the benefit of an agent; instead, it requires them to rely upon the current “advisor” system.

Such student-athletes may hire an “advisor” to receive the advice and counsel of a lawyer concerning a professional sports contract. The NCAA has said receiving such advice is not considered to be entering into an agent contract. Unfortunately, the effectiveness of the “advisor” has been curtailed by NCAA Bylaw, which states, “[A] lawyer may not be present during discussions of a contract offer with a professional organization or have 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.

These confusing and inconsistent rules have been challenged repeatedly. For example, Oklahoma State University (OSU) pitcher Andy Oliver decided to attend OSU after he was drafted by the Minnesota Twins after his senior year in high school. Near the end of his sophomore season, the NCAA ruled Oliver to be ineligible indefinitely to participate as a college athlete based upon his violation of the NCAA’s no-agent rule because of assistance he received from his representatives while considering the Twins offer.

Oliver sued the NCAA, seeking restoration of his collegiate eligibility and compensatory and punitive damages. The court granted Oliver a temporary restraining order and immediately reinstated his eligibility. In addition, the court held the NCAA was prohibited from dictating to an attorney where, what, how, or when he or she can and should represent his or her client. The ruling essentially abolished Bylaw However, the court’s order was vacated when the NCAA paid Oliver $750,000 to settle his claims to preserve its limitation on an athlete’s ability to secure proper and adequate counsel.

The NCAA’s continued failure to address the no-agent rule at the collegiate level has created an unwarranted and uneven playing field placing draft eligible collegiate baseball and hockey players at a clear disadvantage as they address the decision of their potential professional futures.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.