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Friday, December 18, 2009
Arn Tellem on NCAA Ban on Use of Attorneys during Contract Talks with Teams

Arn Tellem, a prominent agent to MLB and NBA players and Principal at the Wasserman Media Group, has a thoughtful piece on the Huffington Post on how the NCAA largely prohibits student-athletes from legal representation during contract talks with professional teams. Here are some excerpts from Tellem's piece:

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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.

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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.

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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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To read the rest, click here.

To read related coverage from Sports Law Blog, see Alan Milstein's "The NCAA is at it Again", Rick Karcher's "The NCAA's "No Agent" Rule Discriminates Against Baseball Players", and my post "Oliver v. NCAA ends in settlement". Other related posts include one on the NCAA Compliance Blog, one by Dan Fitzgerald on Connecticut Sports Law, one by Tassos Kaburakis on National Sports and Entertainment Law Society Blog, and one by Darren Heitner on Sports Agent Blog.


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