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Advice and Constraint

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Of all the injustices heaped on college athletes, the most draconian may be the NCAA's ban on the use of attorneys during contract talks with professional teams. Athletes and their parents are allowed to get advice about proposed contracts only if their advisors don't represent them openly in negotiations. Athletes and their advisors can discuss the merits of a deal, but to maintain eligibility at NCAA schools, the advisors may not act as a go-between or be present during bargaining sessions or have any direct contact with the team on the athlete's behalf.

The rule is intended to keep agents away from amateur athletes. By rendering agents powerless, it effectively turns them into potted plants. But if you're hammering out a deal with someone, isn't it your prerogative to get professional advice? Absolutely, wrote an Ohio judge in a 2008 judgment against the NCAA. He likened the rule to "a patient hiring a doctor, but the doctor is told by the hospital board and the insurance company that the doctor cannot be present when the patient meets with a surgeon because the conference may improve his patient's decision-making power."

The case involved Andrew Oliver, a former pitcher for Oklahoma State University. Oliver had sued the NCAA that spring after being ruled ineligible a few hours before he was to play in a Division I regional tournament. With characteristic arrogance, the organization suspended him on the grounds that in 2006, after he was drafted coming out of high school, a legal advisor he hired had listened in on negotiations with the Minnesota Twins. Never mind that Oliver had already decided to honor the letter of intent he had signed with Oklahoma State. Under NCAA bylaws, any player who has an "agent" consult in negotiations thereby loses his eligibility. To enforce this rule, the NCAA requires student-athletes to sign non-negotiable forms: Anyone who refuses is barred by the organization and the college from competing in intercollegiate sports.

In Oliver's case, the judge found that the no-agent rule violated the public policy in Oliver's home state, Ohio, and every other state. The NCAA appealed. On October 8 -- two weeks before a jury trial was scheduled to begin -- Oliver received a $750,000 settlement to end the lawsuit. The agreement vacated the ruling, thereby allowing the NCAA to keep in place its bylaw denying student-athletes the right to counsel. Which means there's no precedent to cite in future challenges to this arbitrary and capricious NCAA regulation.

Earlier this month James Paxton became the latest student-athlete to sue over this issue. In October, the University of Kentucky pitcher was notified by the college that he must submit to an interview with an NCAA investigator. Paxton was drafted in June by the Toronto Blue Jays with the No. 37 pick, but passed on the club's offer and returned to college for his senior season. He was the only college ballplayer among the top 100 selections who didn't sign.

According to the lawsuit Paxton filed against UK, when he turned down the NCAA's request, school officials threatened to kick him off the team and strip his financial aid. He also claims that they instructed him not to tell his parents or his lawyers about the interview. Last week Kentucky's legal counsel promised that Paxton will be allowed to practice with the Wildcats and won't be punished despite the pending litigation. Still, the case is going forward.

It's presumed the interview with NCAA investigators was prompted by Paxton having enlisted a prominent baseball agent to advise him after he was drafted. On the other hand, Paxton has never been informed of the nature of the allegations against him. The fact is that while colleges are required to answer questions from the NCAA and student-athletes are required to follow school policies, no student-athlete is required to talk directly to the NCAA, particularly without written notification of the likely line of questioning.

In August, the NCAA sent out questionnaires to college-eligible players drafted by Major League clubs in June, but who had spurned pro contracts. Among the questions was whether the player's adviser had direct communication with the big-league club. Attached to the forms was a release for the player to sign that would allow the Major Leagues and its teams to provide the NCAA with information regarding negotiations by them or their representatives with clubs. The caveat: Failure to sign the release and/or provide accurate information could lead to suspension and the loss of playing time, diminishing a player's potential signing bonus

Though the NCAA's no-agent rule is supposedly designed to protect athletes, all it really safeguards is the billion-dollar industry that the organization controls. Through its hegemony over college athletics, the NCAA has free reign to harass and intimidate players, few of whom can afford to mount a court challenge and all of whom are indentured as unpaid professionals. College coaches are given tremendous flexibility to switch schools and capitalize on career opportunities. No restrictions were put on football coach Brian Kelly this month when he bolted the University of Cincinnati for Notre Dame. On the other hand, the NCAA has placed tight constraints on the kids who enrolled at Cincinnati to play for him. Among other things, they can't transfer without sitting out an entire year.

College athletes should be allowed to seek legal help to make informed decisions about their future. Those who are drafted should be encouraged to have the representative of their choice communicate directly with the club that drafted them, and assist in any negotiations. Experienced advisers can help players determine their fair-market value and protect them legally. To deny an athlete the right to retain such counsel is not just patently unfair, but patently unconstitutional.

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