A Look Back At The Andy Oliver Decision
Oliver v. National Collegiate Athletic Association, Case No. 2008-CV-0762
During the 2006 season, Andy Oliver was the primary pitcher for Vermilion High School in Ohio. In February 2006, Andy Oliver retained Robert Baratta and Tim Baratta of Icon Sports Group to serve as his advisors and attorneys. In June 2006, Oliver was drafted in the 17th round by the Minnesota Twins. At the end of the summer, the Twins met with Oliver and his father at Oliver’s home. Tim Barrata attended the meeting after telling Oliver’s father he should be there. The Twins offered Oliver $390,000. Heeding the advice of his father, Oliver rejected the offer and chose to attend Oklahoma State University on a full scholarship.
In March 2008, Oliver informed the Baratas and Icon Sports that he was terminating them and retaining the Boras Corporation. After failing to collect $113,750 from Oliver for purported legal fees, the Barattas, on May 19, 2008, mailed, faxed and e-mailed a letter to the NCAA complaining about Oliver and reporting that Tim Baratta attended the meeting with the Twins at Oliver’s home. In May 2008, Oliver was indefinitely suspended from playing baseball at Oklahoma State because he allowed the Barattas to contact the Twins by telephone and because Tim Baratta had attended the meeting with the Twins at his home. In December 2008, the NCAA suspended Oliver for one year and charged him with a year of eligibility. The penalty was later reduced to 70 percent of one year with no loss of eligibility. Oliver brought a lawsuit against the NCAA.
The NCAA Bylaws At Issue:
12.3.2 Legal Counsel. Securing advice from a lawyer concerning a proposed professional sports contract shall not be considered contracting for representation by an agent under this rule, unless the lawyer also represents the individual in negotiations for such a contract.
126.96.36.199 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.
Oliver contended that NCAA Bylaw 188.8.131.52 is against public policy and therefore unenforceable because the NCAA has no authority to promulgate a rule that would prevent a lawyer from competently representing his client. Oliver further contended that NCAA Bylaw 184.108.40.206 is arbitrary and capricious and therefore unenforceable because it does not impact a player’s amateur status but instead limits the player’s ability to effectively negotiate a contract that the player or his parents could negotiate.
The NCAA contended that Oliver lacked standing to sue because he was not in contract with the NCAA. The NCAA further contended that as a voluntary association it has the right to manage its affairs and apply its bylaws without judicial interference unless it is proven that its bylaws are illegal, arbitrary or fraudulent. The NCAA contended that Bylaw 220.127.116.11 is not illegal, arbitrary or fraudulent.
The Court’s Ruling Re Standing:
The court held that Oliver did have standing to sue because he was an intended beneficiary of Oklahoma State’s contract with the NCAA.
“It is unquestionable that the Defendant [NCAA] and OSU’s contractual agreement is created to confer a benefit on the student-athletes . . . To the extent that Plaintiff’s [Oliver’s] claim of arbitrary and capricious action asserts a violation of the duty of good faith and fair dealing that is implied in the contractual relationship between the NCAA and its members, his position as a third-party beneficiary of that contractual relationship affords him standing to pursue his claims.”
NCAA Rule 18.104.22.168:
The court held that NCAA Bylaw 22.214.171.124 is void because it “is arbitrary and capricious and against the public policy of the state of Ohio as well as all states within this Union and further limits the player’s ability to effectively negotiate a contract.”
The court pointed out that Kevin Hennon, Vice President of Membership Services for the NCAA, testified that the “no agent rule” is a prohibition against agents, not lawyers.
“Therein lies the problem,” stated the court. “It is impossible to allow student-athletes to hire lawyers and attempt to control what that lawyer does for his client by Defendant’s Bylaws 12.3.2 or 126.96.36.199 . . . For a student-athlete to be permitted to have an attorney and then to tell that student-athlete that his attorney cannot be present during the discussion of an offer from a professional organization, is akin to a patient hiring a doctor but the doctor is told by the hospital board and the insurance company that he (the doctor) cannot be present when the patient meets with a surgeon because the conference may improve his patients decision making power. Bylaw 188.8.131.52 is unreliable (capricious) and illogical (arbitrary) and indeed stifles what attorneys are trained and retained to do.”
The court further elaborated on how Bylaw 184.108.40.206 creates unmanageable ethical dilemmas for lawyers:
“The process advanced by the NCAA hinders representation provided by legal counsel creating an atmosphere fraught with ethical dilemmas and pitfalls that an attorney consulting a student-athlete must encounter. Will the attorney be able to advance what is best for the client or will a neutral third party, the NCAA, tie his hands? What harm could possibly befall the student-athlete if such a rule were not found? What occurs if the parents of a student are attorneys or for that matter sport agents? What would have happened if Tim Baratta had been in the kitchen or outside or on the patio instead of in the same room as his client when the offer from the Minnesota Twins was made to Plaintiff [Oliver]?”
The court noted that it supports the NCAA’s goal to preserve a clear line of demarcation between and amateurism and professionalism but stated that “to suggest that Bylaw 12.3.21 accomplished that purpose by instructing a student-athlete that his attorney cannot do what he was hired him or her to do, is simply illegitimate.” The court noted that Bylaw 12.02.3, which prevents NCAA athletes from receiving any kind of payment, directly or indirectly, for athletics participation, establishes a clear line of demarcation between amateurism and professionalism.
“If the membership and the NCAA decide that Bylaw 12.02.3 does not accomplish that purpose, so be it. 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. With all due respect, surely that decision shall not be determined by the NCAA and its member institutions, no matter what the Defendant utters is the purpose of the rule. If the Defendant intends to deal with this athlete or any athlete in good faith, the student-athlete should have the opportunity to have the tools present (in this case an attorney) that would allow him to make a wise decision without automatically being deemed a professional, especially when such contractual negotiations can be overwhelming, even to those who are skilled in their implementation.”
Impact On Oliver:
On February 21, 2009, Oklahoma State announced that based on the court ruling analyzed above, Oliver could pitch. Oliver made his 2009 debut the next day and allowed just one earned run on two hits while striking out 11 in six innings. Oliver was selected by the Tigers in the second round and received a $1,495,000 signing bonus. The NCAA ultimately paid Oliver $750,000 to settle the case. As part of the settlement agreement, the court’s order analyzed above was vacated. Oliver made his major league debut in 2010. After struggling during his major league stints in 2010 (7.36 ERA) and 2011 (6.52 ERA), he has returned to the major leagues but has enjoyed success in AAA (2.53 ERA in 2014).