I've previously wrote on the Andy Oliver case, "The unintended consequences of trying to protect athletes." Mr. Oliver's attorney used this article to support its position in the case Oliver v. NCAA. You have to like that the horrifying image of athletic department employees beating down an agent is now part of the case's historical record. It's a joke...that would never happen in our country, right?
Quick recap: On the night before Oklahoma State baseball player Andy Oliver was to pitch in an important NCAA regional tournament game, he was ruled ineligible for violating the NCAA's "no agent" rule, which basically prohibits NCAA athletes from retaining agents to represents their interests. The charges against Oliver came courtesy of his former advisor, Robert Baratta, who sent a scorched-earth letter to the NCAA. Rather than wait for his case to wend and wind its way through the NCAA judicial process, Oliver and his family decided on a more aggressive legal strategy: Sue OSU and the NCAA.
Money Players is all about being the best resource
for the business of being a professional athlete. Here are some links from
around the web that we think are must reads for any current or aspiring
professional athlete and their families.
Sean Deveney reports on
the National Basketball Players
Association's high-growth entrepreneurship program. This summer the program offered
NBA players four days of intense business classes and workshops at
Northwestern's Kellogg School of Management, one of the nation's best business
schools. This is something that any NBA Player with an interest in investing in
or starting a business should get involved in. The gold in the article comes from, program director,
Professor Steve Rogers: "Every single athlete is approached with get-rich
ideas all the time," Rogers said. "But they don't have the tools to
evaluate those ideas. Their focus is basketball. They should be saying no to these
deals almost every time. At big venture capital firms, they will get 3,000
business plans per year, and they'll say yes to, maybe, eight of them. Of those
eight, not all are going to work out. Sometimes a solid, legitimate business
idea just doesn't work. What makes things harder for high-profile people like
athletes is that a lot of the people who are offering them these deals are not
legitimate. That's where this program is aimed to help."
Forbes has a cover story on the most powerful coach
in sports: "[Saban] was given total control of the
football program: recruiting, coaching, business administration and public
relations. There are coaches at other universities who have similar salaries,
like Charlie Weis at Notre Dame and Pete Carroll at the University of Southern California.
But no coach, including those in the professional leagues, can match Saban's combination
of money, control and influence. Saban, now entering his second year as the
coach of the Alabama Crimson Tide, is the most powerful coach in sports.”
Similar articles have been written before, so there's not much new ground covered here. There's the usual questionable characters mentioned (especially Rodney Guillory), the vague job description of runners and the now-regular staple of these articles: an anonymous sports agent pointing out the hypocrisy and corruption of this dirty business.
I like what John Wall, a top high school player, has to say:
"If you let one person into your circle, they can mess everything up. They would tell me I had a good game, I'm a good player and they want to start helping me out basketball-wise," Wall said. "I was like, 'Nah. If you weren't there before I had anything, there's no point in you coming around now.' "
"Some observers compare a coach who purports to guard a player's best interest with the fox guarding the henhouse."
And then there's Pat Barrett, who runs Southern California All-Stars. Bolch states that Barrett is a "controversial figure in local basketball circles, is quick to acknowledge that he's 'not affiliated with any rules. . . . I have no kids in school, I'm not a booster, I'm not alumni.' "
Had no idea that rules (or laws for that matter) are something we are or aren't affiliated with.
There is also an accompanying article on agents and intermediaries that mostly quotes an anonymous "prominent sports agent." I love this agent's reason for not identifying himself: He is apparently concerned "that his comments might be construed as an admission he had engaged in wrongdoing." Personally, I would prefer these agents who purport to follow the rules stand up and identify themselves. "Hey, look at me, I follow the rules, I don't jeopardize an athlete's eligibility."
The supposedly prominent sports agent on just how sleazy the sports agent biz is:
"Overwhelmingly, 95% of the time, there's a third party involved. If agents could get players in a fair, representative way without paying money they would, because everyone is a bottom-line businessman. But they can't."
"Most of the time the runner tells a kid, 'I'm just taking care of business so that we can do what we need to do.' "
This is probably my biggest problem with the entire sports agent industry: Agents and runners operating without disclosing the nature of this relationship with the targeted player.
The anonymous agent also thinks the NBA Players' Assn's oversight of agents is "loosey-goosey" and that "the union's investigation into whether Bill Duffy Associates Sports Management engaged in wrongdoing during its recruitment of Mayo should serve as the litmus test for whether the league is willing to get tough."
Litmus test? So if BDA is not found guilty, the NBPA is not doing its job. There were bad actors in the Mayo case, no doubt, but that doesn't mean it's fair to automatically reach these conclusions. I'm guessing this is the real reason this agent wouldn't come forward: He wanted to slam Duffy on the record. As I've said several times on Money Players, if it is proven that BDA did anything wrong, they should pay a heavy penalty. But we haven't seen that evidence yet. Only Louis Johnson showing ESPN Guillory's receipts.
College basketball and the NCAA are talking about stopping the practice of coaches offering scholarships to 8th graders. NCAA prez Myles Brand depicts this practice as "untoward." The problems are many: Most 14-year old boys can't make up their mind which way to part their hair, let alone what college to attend. Like a lot of things in college athletics, the elders have the upper hand. The scholarship offer is contingent on many one-sided factors, including the fulfillment of ridiculously high expectations, the coach still being the coach, qualifying academically and no embarrassing character flaws.
“Do [these 14-year olds] have enough knowledge to make such a decision? Two or three years from now, when it's time to enter (college), are they the same prospect and same person you thought they were four years earlier?"
The next step for the NABC? According to Reggie, “We'll probably ask our
coaches to refrain from it. If that doesn't cut the mustard, we'll go
to the next step: (NCAA) legislation.” Ordinarily I have a gag reflex at the thought of more NCAA rules so let's hope that coaches can self regulate.
And to the broader topic frequently discussed on the Money Players blog: What's more wrong: a college
coach who sells an 8th grade phenom-on-training-wheels a college
scholarship or a sports agent who sells a career in the NBA? The simple
answer is that both are selling powerful hoop dreams. And in defense of
sports agents, it's far easier to predict an NBA career (or not) of an
18, 19- year old than a college career of a 14-year old.
I'll close with a line from the movie Shaft: "We all on the hustle. I sell broads and dope and numbers. You sell crap and blue sky. It's all the same game." And you know these runners, recruiters and agents don't want to get out-hustled.
Jason Whitlock, the love-him-or-hate sportswriter, offers some interesting points about how the media and the public view college basketball and baseball players.and their interactions with agents. Writes Whitlock:
When the NCAA enacted its new, get-tough Academic Progress Report standards, a little-known fact that the media ignored is that college baseball programs traditionally performed far below basketball programs. Let me translate that for you: Baseball players were less likely to graduate from college than basketball players. The APR forced baseball coaches to bring their kids back to campus for summer school rather than allowing them to audition in front of scouts and agents in the Cape Cod League. Yeah, the "cesspool" of street agents, runners, handlers, scouts and agents we love to rail against in basketball co-mingle in baseball at high school All-American games without raising a word of dissent.
I am not naive enough to think that this sort of thinking work have stopped the alleged benefits that an O.J. Mayo might have received but instead of being a watch dog why not consider some sort of partnership with the pro leagues and agents with stiff penalties for those that break the rules.
The product would be so much better if the "minimum" requirements helped nurture the players into more responsible solid citizens that can also play at that level. I also agree that rookies should play one year in the "D" league before getting to the big dance. Surely some legitimate compromise can be made..
Money Players reader and frequent commenter Garrett Sanders emails some interesting points:
Guillory allegedly was given $250k to recruit OJ by BDA, but "only"30k ended up in his pocket. Clearly, if OJ took money from Guillory, he was wrong for this...but the larger point is that there is economic system that compensates people who have deep relationships with top players. For college coaches, the market determines what college coaches can are paid. For runners, agents can have them on the payroll (even if the practice is generally frowned upon). And then for the players, the ones who create economic value for both sports agents and athletic departments, are conveniently cut out of the deal. I am not sure I want college athletes to be paid, the schools and the NCAA are the ones who have turned this into a big money game. So if they take the one and done players, they're telling the public it's about the money, not the education. And if they don't pay them, someone else will step in. Everyone can do their typical hand wringing, but should anyone expect a different outcome.
Darren Heitner, who is on top of all things agent related, provides an excellent analysis about yet-another- college athlete/agent situation. It is definitely not as high profile as O.J. Mayo, but it does raise some interesting issues. It involves Oklahoma State University sophomore star pitcher Andy Oliver, who was declared ineligible in the middle of the College World Series. Rather than set up the situation, read Darren's story and analysis. Let the judgment begin...except here The facts surrounding Andy Oliver's are not clear to take sides, but
my views expressed in the O.J. Mayo situation apply here: Don't
rush to judgment, wait for the facts to come out and let the
appropriate authorities conduct their investigation.
My analysis will focus on amateur baseball players and their involvement with so-called "family advisers" and NCAA rules governing these relationships. For most student-athletes agent prohibitions make sense. However, baseball players drafted by MLB teams are unique from other college athletes because they are automatically entered in MLB's amateur draft (rather than declaring for the draft like basketball and football players). While I am a big fan of MLB's system for drafting players, drafted ballplayers should have the opportunity to receive quality representation in negotiating their first professional contract. Maybe I am alone on this, but I think everyone's interests (players, schools, NCAA, agents) would be well served if the system for "advising" amateur baseball players is brought above board, rather than devising ways around NCAA rules (athletes and agents certainly aren't the only ones figuring out loopholes). Not all agents wear horns The intersection of amateur athletes, agents and the NCAA is complex. There are bad agents out there. The overarching question is, How can we come up with ways to improve the system? I would love to think that education is the primary tool to deal with the "agent problem," especially since my book, Money Players, would, of course, be an essential part of the solution. But it will take more than just well-constructed educational programs laced with strong admonitions to refrain from taking money from agents and runners. (No, I am not advocating that athletes be paid.) I'm actually not sure what the solution is for college basketball and football. But I firmly believe the rules governing agents for amateur baseball players need to be restructured.
NCAA rules are supposed to protect student-athletes. And for the most part they do. NCAA rules prohibit an NCAA athlete from having any oral or written agreement for representation by an agent. They also prohibit an athlete from retaining an agent to represent his athletic interests. These rules make sense for amateur football and basketball players. But baseball players drafted by MLB teams are in a completely different situation, yet governed by the same agent prohibitions.
IMO, amateur baseball players absolutely need above-board, expert representation by someone who is not only well versed in the legalese of MLB contracts, but also understands the marketplace. And who possesses these skills? Agents! But student-athletes who wish to retain their amateur status are not allowed to retain agents. A baseball player drafted by a MLB team, even with the help of his family, is unlikely to be capable of effectively negotiating a contract, let alone obtaining full market value. It would be so sensible -- and truly demonstrate that the NCAA is more "kinder, gentler" these days -- if they would allow a small window for agents to negotiate MLB deals on behalf of drafted baseball players.
So-called family advisers In doing research for my book Money Players, I spoke to a several baseball agents. They all agree that the concept of "family adviser" is a sham. Baseball players selected by major league teams need some form of professional counsel. What they really need is an agent, but NCAA rules prohibit amateur athletes from retaining. So these advisers work behind the scenes, but they do not sit at the negotiating table (probably the most essential agent function). Good, reputable agents won't do anything to jeopardize an athlete's collegiate eligibility. They'll do whatever they possibly can to assist an athlete and their families, but they won't "agent" an amateur athlete. Of course, that's all a fine line and open to wide interpretation. My primary advice to athletes is: Don't break NCAA rules. Secondary: Don't scorn a b-list agent!
Who says it doesn't pay to be an alleged student-athlete? Interestingly NCAA rules empower individuals from members institutions to negotiate with professional sports teams. There are obvious conflict of interests, although I find most coaches and athletic directors honorable when it comes to advising athletes on the decision to stay or go pro. But baseball is different: For players drafted after their senior year in high school and/or their college junior year, they are in the unique and enviable situation where they can negotiate with a MLB team and use the leverage of another offer (the opportunity to go to college) against the MLB team. And, magic, baseball teams offer more money rather than risk losing the rights to a coveted draft pick.
Fiduciary responsibility of those negotiating professional sports contracts
NCAA bylaws empower athletic departments to act as agents.
188.8.131.52 Negotiations. An individual may request information about professional market value without affecting his or her amateur status. Further, the individual, his or her legal guardians or the institution's professional sports counseling panel may enter into negotiations with a professional sports organization without the loss of the individual's amateur status. An individual who retains an agent shall lose amateur status.
Let's look at the concept of fiduciary. The word comes from the Latin fides, meaning faith. It has been said that fiduciaries must conduct themselves "at a level higher than that trodden by the crowd." A fiduciary is legally required to put their clients' interests above all else, and is certainly not allowed to profit at the expense of his or her clients.
I am not familiar enough with baseball to know if it is commonplace for a representative from a school's professional sports counseling panel to negotiate with MLB teams, but it is hard to fathom that a university employee, even with impeccable academic and practical experience, could be a fiduciary for a student-athlete. Knowing the potential liability, would a school's legal counsel even allow? And what about players associations' regulations that stipulate that only "certified" agents negotiate playing contracts? The early analysis The only reason the public knows about Andy Oliver's alleged involvement with an agent is because one agent was left at the altar for another agent (the fact that it is Scott Boras certainly gives this story added juice). What about all the other baseball agents who acted as "family advisers"? The only difference is they typically do not send 6-figure invoices. And to compound the issue, it probably was not a good idea to have Boras's deputies intervene on behalf of an amateur ballplayer in the middle of his college baseball season. Scott Boras, George Vujovich and Ryan Lubner are attorneys and, I assume, licensed to provide legal services. Keep in mind this issue is over a legal bill, not whether an agency relationship has or has not be established.
Of course, there's an alternative approach to this problem...
"Agents, please keep away from our student-athletes!"
"It's not working. Both the NBA and the NCAA coaches, we all want a good system that gives the players an opportunity and the colleges some sanity and let the NBA be able to have the best players that can play. We know that what we have now isn't working for us and we don't think it's working for the players."
Amen, my fellow lonsman. The current system that doesn't work. This issue is not that complicated, folks. Players who want to go to college and play basketball should. And players who don't should have viable options. This whole issue has been often framed in absolute terms by the stakeholders: Players believe they should have the right to earn a living whenever the market signals they are ready. The NBA wants mature, pre-marketed players entering the Association. The NCAA wants real student athletes. Boosters just want to win. And athletic departments have to find the proper balance: Keep well-heeled boosters happy without completely abandoning their academic mission.
It's like Baseketball, but better The amateur baseball draft is the best system. Players are eligible to be drafted after their senior year of high school. They don't declare for the draft. They are simply drafted. Then if a Major League team offers them enough money, they sign. Otherwise, if they are not offered a sufficient contract they can go to an NCAA school...BUT THE PLAYERS MUST AGREE TO A 3-YEAR ENLISTMENT. Perhaps the NBA should consider this approach.
The marketplace decides who's ready. What a concept! And players don't have to rely on an agent or runner promises and hype. Everybody wins. Why not hold a supplemental NBA draft for high school players? NBA teams select players they think are worth signing. Drafted players either sign according to a rookie scale or they go to college. If a player signs, he goes to the NBDL for at least one season. If he opts to go to an NCAA school, he is not eligible for the NBA draft for three years. And to boot we can rid "declaring for the draft," "testing the waters" and "agent/outside influence" from our sports vernacular.
Feasting on agents and runners And finally...along with James Tanner, David Thorpe, and Jason Levien, I participated in TrueHoop's "Runners and Recruiting: A Roundtable." There's so much to chew on, it took two sittings. Second helping is expected on Thursday.
“A guy who has been in the sports business for 40 years, and was basically cryogenically frozen, resurfaced last year,” Falk said. “And we both competed for the same player this year. The player eventually went with me, but three days after this player told this agent he selected me, this agent told him, ‘You’ve made a terrible mistake. David is a really bad person. I’m here for you if you change your mind.’"
"The joke is that this was a person I once worked for and later he worked for me," Falk continued. "Then I find out from this player that this agent told him that he did Michael Jordan’s first Nike deal. That’s ridiculous. That’s like Pluto saying he invented the Polio vaccine that everyone knows was invented by Jonas Salk. So I told this player, ‘All you have to do is call Michael and he’ll tell you David did the deal.'"
Whom is David Falk referring to? Most assume Falk is talking about his former partner Donald Dell. So I emailed a sports lawyer friend for confirmation. This person, who worked at ProServ, answers Falk's riddle with a riddle:
"I was there, but this is a question of ego and point of view. Of course, at the time, Donald was trying to promote Falk as the go to guy for [Michael] Jordan and Falk took the reins and ran with them, but Donald handed him the reins. So, who did the deal? You tell me!"
"Falk HATES Dell which is most unfortunate. Falk acts as if he is immune from criticism. He is so arrogant it is difficult to believe he can recruit anyone. And his hatred of Donald colors his views and his comments."
Note to David Falk: If you truly want to improve the sports agent industry, donating $5 million to Syracuse University to found the David B. Falk Center for Sport Management is a good start, but I also suggest you stop planting rumors in the media. If you've got the goods on fellow agents, then go to the proper authorities.
TrueHoop's Henry Abbott (my go-to guy for NBA info) thinks in my previous post that I "let BDA more or less entirely off the hook." That was certainly not my intention. In fact, I wrote: "Guillory, Mayo, BDA and USC may be guilty as sin, but they all deserve an opportunity to state their case to the NCAA and whatever other authorities may have an interest in this case." Our judicial process is supposed to provide individuals with the presumption of innocence until proven guilty. No question, Duffy and Andrews have serious allegations before them:
Was there a real or implied relationship between BDA and Guillory?
Was there a verbal (of course, this is hard to prove) or actual signed (highly doubtful, but not impossible) agreement between BDA and OJ?
Are there any California agent laws that may have been broken? (See below for further analysis by agent regulation expert Joshua Golka)
My defense of BDA is based on two factors:
1) I am friends with Duffy and Andrews, something I disclosed the very first time I wrote on this matter. I am still quite capable of criticizing friends. I believe they are both honorable agents, but of course I don't know with absolute certainty.
2) Since this story first aired on ESPN's Outside the Lines, the rush to judgment has been swift and fierce. ESPN's Kelly Naqi did a good job telling the story through Johnson's eyes. I didn't come away from Naqi's investigative report thinking this would be an open and shut case against BDA.
This whole situation has generated great discussion -- and I anticipate there will ultimately be significant fallout. I also hope this will bring about positive regulatory (doubtful) and structural change (more optimistic, especially if there is compromise between the NCAA and the NBA that would provide certain elite players with viable, constructive options).
Of course, I think the best outcome that could -- and hopefully should -- come from all this is that elite athletes (and their families) become more savvy, sophisticated and skeptical about ALL people involved in their lives and that they demand complete disclosure.
If BDA, its agents or employees are involved: There are certainly possible violations of California's athlete agent act, the Miller-Ayala Athlete Agent Act. When I last checked, Duffy was registered in CA as an agent, but I'm not sure about BDA as an entity or Andrews. Failure to register would be a violation. The major violation would be a violation of the prohibition against the direct or indirect provision of anything of value. There may also be violations of notice requirements. In addition to the potential for criminal (misdemeanor) penalties, a court could suspend or revoke the privilege of someone convicted to conduct the business of an agent. The athlete, school, league, conference, association, etc. may bring a civil suit for damages. There could also be punitive damages, court costs and attorney fees. Finally, if Andrews or Duffy is an attorney licensed in CA, they may also be subject to discipline by the state bar.
Many are calling for the firing of USC's coach, athletic director, compliance staff, and school president for lack of institutional control. Most extreme, ESPN's Pat Forde called for USC to get the death penalty.
There's also the cumulative effect the yet-to-be-resolved Reggie Bush case taking place at the same school.
Look, Guillory, Mayo, BDA and USC may be guilty as sin, but they all deserve an opportunity to state their case to the NCAA and whatever other authorities may have an interest in this case.
For anyone who wants a break from the 24/7 cycle of deciding the appropriate penalty, here's a lifeline thrown by Michael Wilbon followed by questions I have about the case and then a link to an interview radio I did on the subject.
"He was the nicest, sweetest kid you could hope to meet. Said hello and then hugged me, even though he'd seen me call him a 'punk' on television. He was polite, engaging, answered every question with 'Yes, sir' or 'No, sir.' He said: 'I would just love for you to spend some time with me, just talking. . . . Could I have your card and just be able to call or talk to you? I've got the pre-draft camp [in Chicago] coming up, a whole new world.' I realized instantly I was wrong for attacking Mayo the way I had. While Mayo isn't an innocent, he's absolutely the product of a subculture in which the ability to play basketball at an elite level is valued more than being a good father, more than formal education, more than almost anything that appears to be within his grasp. Mayo, like so many who've come before him, simply is doing the only thing he knows to negotiate the road before him."
Questions I have before I am ready to decide in my own court of opinion... 1) Why did Johnson go to media? I assume there was some kind of falling out involving Johnson and Guillory. Was there an attempt to reconcile privately? Did Johnson ask for or demand money before unloading on ESPN (similar to Lloyd Lake in the Reggie Bush case)? I think Louis Johnson's motives are absolutely fair game. 2) Louis Johnson GUESSED that OJ got $30,000 from Guillory. He produced some receipts, but several were expenses related to Johnson and Guillory courting OJ, which is not an NCAA violation. 3) Show me the money trail between BDA and OJ. Remember, it is not remotely illegal for a sports agency to employ a runner. The $250,000 figure Johnson threw out there sounds like a lot of money, but it's really not in the grand scheme of the business of professional basketball. I would have a problem if Guillory did not disclose his relationship with BDA to OJ, but that's a private matter and definitely not an NCAA issue. 4) Regarding the cell phone and other receipts--that might be damaging evidence, but there are several instances where the NCAA has restored eligibility after an athlete serves a suspension and repays the benefit or makes a charitable donation (as OJ was required to do when he received free NBA tickets from Carmelo Anthony). 5) Is it possible that Bill Duffy and Calvin Andrews were duped by Guillory? Duffy is a smart guy. Until I see how this shakes out, I will give the benefit to Bill and Calvin that they would not so blatantly jeopardize their sports empire. It's not like OJ is BDA's breakthrough client. They represent some of the NBA's biggest stars: Yao Ming, Steve Nash, Melo, Greg Oden, etc.