NCAA agent policies - Is Andrew Oliver the Curt Flood of college athletics?

The NCAA's long-standing policy barring athletes from having an agent and its associated amateurism principles are being worn away like water carving stone. Two recent examples in college basketball and a less prominent but important legal case in college baseball that is making its way through the courts provide compelling examples:
  • just wrote an in-depth article about the techniques used by Ceruzzi Sports and Entertainment to pursue Kevin Love (who at the time was a freshman basketball student athlete at UCLA) prior to his widely anticipated entrance into the NBA draft. The actions, enabled by former Duke basketball star Jay Williams, involved Love's former AAU coach taking hundreds of thousands of dollars from the firm to arrange contact between Williams and Love.

  • The Washington Post wrote an extensive piece about the refusal of University of Maryland men's basketball coach Gary Williams to work with AAU coaches in recruiting despite their increasing influence in the decision making process of college prospects. The article is exceedingly direct about the role of AAU coaches in the recruiting process as they broker the services of high school prospects - in one case describing a coach who plans to obtain a 1-900 phone number in order to benefit financially from calls by coaches. The practice of hiring associates or family members of the high school prospect onto the coaching staff where the prospect enrolls is also referenced in the article, in some cases for amounts approaching $500,000 per year.

  • Oklahoma State University baseball pitcher Andrew Oliver has received a temporary restraining order against the NCAA that allows him to pitch for the Cowboys and maintain his eligibility. Oliver sued after he was declared ineligible for having a lawyer present during his negotiations with the Minnesota Twins following his selection as a high school senior in the Major League Baseball draft. The judge in the case said the NCAA's enforcement of the ban was "arbitrary and capricious." The case is being appealed by the NCAA.

The Association's general philosophy is correct in that amateurism supports the educational aspects of college sports. But the evolution of sport has created a situation where amateur no longer means what it once did. The NCAA has changed its rules over the years to address this evolution, creating pragmatic but philosophically challenging positions. Consider these examples:

  • Athletes prior to college (e.g. in the sport of tennis) are allowed to accept prize money from tournaments and retain their eligibility, provided the prize money doesn't exceed "actual and necessary expenses". Said differently, they need to be viewed as a non-profit athlete despite activities that could have them traveling around the world playing their sport. The NCAA has even created an "amateurism clearinghouse" to handle the volume of cases surrounding this issue.

  • The NCAA considers the drafts of the four major professional sports - football, basketball, baseball, and hockey - differently. In baseball and hockey it is permissible to be drafted and even negotiate a contract out of high school, as long as no one acts as your agent since you do not need to "declare" for the draft in these sports. However, in the sports of basketball and football, an underclass athlete who declares for the draft risks their eligibility should they advance to the point where they are actually drafted or select an agent.

  • Athletes can get advice from "advisors" about where they might be drafted and associated financial compensation, but the person can't actually represent their interests in a negotiation. Baseball prospects face this issue as college juniors or after their 21st birthday when they become "draft eligible". Once again, they have to sort out their worth in the open market with "advisors" (not agents).

The advisor/agent distinction seems to hinge largely on three factors: 1) who does the talking, 2) who is in the room during a negotiation and 3) who is paying whom (the athlete can pay the advisor, but advisor can't give anything to the athlete). Athletes are left to navigate a house of mirrors to maintain an illusion of amateurism because well intentioned NCAA bylaws encourage actions that aren't transparent. Consider the role of the "family advisor" and the comments of Michigan hockey coach Red Berenson in this 2007 article about family advisors in college hockey. Ask a coach or athletic administrator about the role of advisors and watch their reaction. The problem is widely known.

The challenge (legally and philosophically) is that the NCAA is stuck in no-man's land on the advisor/agent issue, clinging to a board that is floating in a sea filled with sharks. believes the NCAA is likely facing a watershed moment in the Andrew Oliver case similar to the challenge Major League Baseball faced from Curt Flood.

Flood challenged Major League Baseball's reserve clause in a dispute that made its way to the United States Supreme Court. Although the case was decided in favor of Major League Baseball, changes in baseball's rules related to free agency were the ultimate outcome. What the courts will finally decide in the Oliver case is unclear.

However, the early decision in Oliver's favor suggests that an uphill battle awaits the NCAA. If Oliver is successful, the minor distinction between agents and advisors will disappear, further carving away the NCAA's "bedrock" principle of amateurism while bringing questionable influences - including those that Gary Williams has resisted and that used Kevin Love - into college athletics like never before.