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Saturday, February 22, 2014
 
Another "No Agent" Rule Violation Finding Based on Questionable Evidence

Aaron Fitt at Baseball America reports today that Oregon State senior pitcher Ben Wetzler was just suspended for 11 games by the NCAA for allegedly violating its "no agent" rule.  Numerous scholars have opined on the rule's irrationality, particularly in its application to amateur baseball players which I wrote about nine years ago.  The rule was also found, in Oliver v. NCAA, to be arbitrary and capricious because it bears no rational relation to preserving "amateurism" as well as a violation of public policy because its breadth inappropriately interferes with a lawyer's representation of his/her client.

But a separate area of concern raised in Wetzler's situation, which unfortunately applies to any NCAA athlete suspected of violating NCAA rules, has to do with the impartiality and neutrality of the exclusive dispute resolution process utilized by the NCAA and its member institutions to resolve eligibility disputes, coined as the "Student-Athlete Reinstatement Process."  It appears from Fitt's report that the primary evidence for finding a violation by Wetzler is that the Phillies, after failing to sign Wetzler after drafting him in the fifth round last summer, said something to the NCAA.  The NCAA stated in its press release:  “According to the facts of the case, which were agreed upon by the school and the NCAA, Wetzler sought help from an agent who attended meetings where Wetzler negotiated contract terms with the team.”  The italicized portion says it all.  In many respects Wetzler's case reminds me of Paxton v. University of Kentucky, whereby the NCAA suspected Paxton had violated the rule based upon a journalist's blog post suggesting that Paxton's lawyer may have had communications with the MLB club that drafted him.

I recently co-authored an article with Professor Steve Ross (Penn State) and S. Baker Kensinger, Esq. (Goldberg Katzman) that addresses the impartiality and neutrality concerns associated with the NCAA's rules and process for handling eligibility disputes, which can be downloaded from SSRN here.  We opine that the NCAA’s reinstatement process for resolving eligibility disputes lacks the independent impartial review necessary to insulate the process from judicial review under the Federal Arbitration Act (FAA).   We analyze the well-defined strands of private association law and the requirements of the FAA and conclude that the NCAA's Restitution Rule effectively constitutes an improper "waiver of recourse" clause.  We further propose that the NCAA can achieve its legitimate aim of quick and definitive resolution of eligibility disputes by affording college athletes the right to submit their disputes to binding arbitration before a neutral, expert arbitrator (or panel of arbitrators) consistent with the requirements of the FAA, similar to the numerous arbitration systems adopted by other sporting leagues and associations.





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