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Oregon State Pitcher Suspended for Advisor’s Communication with Philadelphia Phillies

Oregon State University (“OSU”) pitcher Ben Wetzler was recently suspended 20% of OSU’s baseball contests. Wetzler was selected by the Philadelphia Phillies in the 5th round of the 2013 major league draft. Such suspension occurred after an advisor for Wetzler had direct communications with the Philadelphia Phillies. The agent/advisor dynamic has created its share of problems for student-athletes over the years and has produced several litigated matters. The pertinent bylaws are as follows:

12.3.1 (General Rule). states that an individual shall be ineligible for participation in an intercollegiate sport if he or she ever has agreed (orally or in writing) to be represented by an agent for the purpose of marketing his or her athletics ability or reputation in that sport. Further, an agency contract not specifically limited in writing to a sport or particular sports shall be deemed applicable to all sports, and the individual shall be ineligible to participate in any sport.

12.3.2 Legal Counsel. Securing advice from a lawyer concerning a proposed professional sports contract shall not be considered contracting for representation by an agent under this rule, unless the lawyer also represents the individual in negotiations for such a contract. Presence of a Lawyer at Negotiations. A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (in person, by telephone or by mail) with a professional sports organization on behalf of the individual. A lawyer’s presence during such discussions is considered representation by an agent.

This matter should seem similar to the case of Andy Oliver, a former pitcher for Oklahoma State University. Oliver’s advisor had direct communication with a professional team on his behalf. After Oliver terminated his relationship with the advisor and chose another advisor, his former advisor drafted a letter to the NCAA explaining various violations that were committed. Accordingly, the NCAA investigated, interviewed Oliver without counsel, and ultimately suspended Oliver from competing in postseason play.

Oliver then filed suit in Ohio, his home state, asserting various causes of action. However, the focus of Oliver’s complaint was that lawyers should be permitted to negotiate on behalf of clients and provide zealous representation. According to NCAA Bylaw, a lawyer cannot be present for negotiations and, thus, cannot zealously represent his/her client. In Oliver, the court stated “[NCAA Bylaw] is impossible to enforce and…allows for exploitation of the student-athlete ‘by professional and commercial enterprises,’ in contravention of the positive intentions of the [NCAA].” Indeed, the court found that the bylaws associated therewith were against the public policy of the State of Ohio and every other state because it limits the ability of a player to effectively negotiate a contract. Therefore, the court held that NCAA Bylaw is void. Subsequently, the parties settled the case and the judgment was vacated, which allows NCAA Bylaw to remain in full force and effect.

Every summer a new crop of student-athletes are drafted by major league teams. In turn, every summer NCAA anti-agent bylaws are violated. It is time to revise the system.

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