One of the most antiquated and useless NCAA rules is finally off the books after the usually tone-deaf organization voted in favor of allowing high school baseball draft picks to hire agents without impacting their NCAA eligibility.
The Big 12 sponsored the proposal — and thanks to the Power Five conference autonomy — it passed easily. The rule goes into effect immediately for the ACC, Big 12, Big Ten, Pac-12 and SEC. Other Division I conferences may adopt the rule if they so choose.
Under the old rule, a high school athlete selected in the MLB Draft had to make the potentially life-altering, multi-million dollar decision as to whether to turn pro essentially by himself. The NCAA allowed athletes to hire an “advisor,” but that advisor could not negotiate with the drafting team or even be present when the player’s family tried to negotiate with the drafting team.
Now, high school draftees can approach the college vs. pros decision with the help of an agent. Under the new rule, high school draftees must pay the agent’s going rate and may not receive any additional benefits. If they do not sign with the drafting team then they must terminate their relationship with the agent before enrolling in college.
This change is a long-time coming and certainly welcomed by anyone who might have the opportunity of being drafted.
However, do not think that the Power Five conferences made this change out of the goodness of their hearts. The writing was on the wall that either this change occurred voluntarily or a court would soon hammer the NCAA for such an inherently unfair and frankly unconstitutional rule.
Remember the plight of Andy Oliver. Oliver, a pitcher, was drafted in the 17th round of the 2006 MLB Draft by the Minnesota Twins, but instead of signing with the Twins he chose to play at Oklahoma State. Near the conclusion of his sophomore season, the NCAA found Oliver indefinitely ineligible to participate for his college team based on the revelation that years prior Oliver violated the No-Agent Rule by receiving assistance from his former representatives.
Oliver sued the NCAA and the Court issued a temporary restraining order restoring Oliver’s eligibility. In doing so, the Court slammed the NCAA’s No Agent Rule finding that NCAA bylaws 12.3.2 and 184.108.40.206 should be void due to its arbitrary, capricious and overreaching limits that were against public policy:
“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 cannot be present when the patient meets with a surgeon because the conference may improve his patient’s decision-making power.
. . .
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 should not be determined by the NCAA and its member institutions, no matter what the defendant claims is the purpose of the rule.”
Unfortunately, the Court never had an opportunity to issue a final decision at trial as Oliver settled his lawsuit for $750,000.
However, Oliver’s case showed that the NCAA’s prohibition on agents would likely not withstand future Court challenges. Furthermore, back in September, the 9th Circuit Court of Appeals rules that the NCAA was no longer immune from anti-trust scrutiny. One rule ripe to challenge as an unlawful restraint of trade was certainly the No Agent Rule.
Today’s change will allow the NCAA to avoid a loss in court had another Andy Oliver situation arose. Unfortunately, though, the new rule will only apply to high school players. College players with eligibility remaining will still not be allowed to use an agent in contract negotiations without jeopardizing their eligibility.
When the right situation arises, look for a skilled antitrust attorney to challenge this rule as well. The NCAA is wise to head off legal challenges before they become too daunting, but it must do more to protect its athletes and ensure that they are equipped to make major life decisions without arbitrary handcuffs that no other students on campus face.
Steve Silver is the founder of TheLegalBlitz.com. He is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia. You can reach him at firstname.lastname@example.org or on Twitter @thelegalblitz.
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