Sports Agents Present a Challenge to Compliance Programs
It was the end of July and the time of year when football media days were upon us once again. Traditionally this is an opportunity for the media to have a question and answer session with coaches and players about the team's prospects for the upcoming season. Unfortunately for some prominent Division I Bowl Subdivision members, the institutions were answering questions regarding potential NCAA violations involving players receiving benefits from agents. NCAA legislation in this area is fairly straight forward. According to the provisions of NCAA Bylaw 12.3.1 – Benefits from Prospective Agents states:
An individual shall be ineligible per Bylaw 12.3.1 if he or she (or his or her relatives or friends) accepts transportation or other benefits from: (Revised: 1/14/97)
(a) Any person who represents any individual in the marketing of his or her athletics ability. The receipt of such expenses constitutes compensation based on athletics skill and is an extra benefit not available to the student body in general; or
(b) An agent, even if the agent has indicated that he or she has no interest in representing the student-athlete in the marketing of his or her athletics ability or reputation and does not represent individuals in the student-athlete's sport. (Adopted: 1/14/97)
In essence, the bylaw precludes a student-athlete from accepting any benefit from an agent, including, but not limited to: money, meals, transportation and accommodations. The bylaw has also been found to apply to situations wherein current student-athletes with remaining eligibility have received benefits while attending a draft-day party of a former teammate that was hosted by an agent. An April 17, 2009, NCAA Educational Column titled, "Issues Related to Benefits from Former Teammates and Agents During the NFL Draft" clarified that benefits provided while attending a draft-day party would not be permissible and would affect the eligibility of a student-athlete. The Column noted that violations with current student-athletes occur if: 1) any benefits provided to the current student-athlete who attended the party were actually paid for by the athlete's agent; and 2) the former teammate did not provide similar benefits (e.g., transportation and lodging) to the student-athlete while college teammates.
The recent media reports of NCAA inquiries of agent-related violations have focused the spotlight on illicit or otherwise inappropriate agent activities. Institutional monitoring for agent violations is very challenging: the violations often occur off campus, and may occur in a covert fashion in some cases by individuals who may not care about violating NCAA rules and its impact on a student-athlete's eligibility. It appears that some of the recent issues may only have been discovered because of statements found on the student-athletes' social networking sites, such as Facebook and Twitter, otherwise, they may not have come to light.
The consequences of agent violations may result in the withholding from competition for a student-athlete or the loss of their eligibility altogether. In some instances ineligible participation for such violations may result in the retroactive vacation of records or financial penalties imposed by the NCAA for participation in an NCAA Championship or post-season competition.
Although an NCAA institution cannot monitor its student-athletes 24/7 it must take proactive steps to deter student-athletes from accepting benefits from agents. Establishing a rules compliant culture on campus is an important step in providing student-athletes with an environment that would discourage the receipt of improper benefits. One of the primary tools that institutions use is to provide an extensive rules-education program that clarifies what benefits they are permitted to receive and those they are not. Rules education for parents may also be helpful, especially high profile student-athletes who appear to be early-round draft picks. Education, however, is not the only method of deterrence a school may have. Institutions should carefully review all compliance-related forms and information completed and submitted by the student-athletes (e.g. employment, vehicle usage or ticket pass lists). The careful review of forms and adherence to institutional compliance polices is particularly important especially for student-athletes who are early-round draft prospects, as they are likely targets of agents and their associates. In addition to formal procedures, institutional personnel must be attentive to the presence of individuals not associated with the school or program who are seen in the locker room areas or on the sidelines of games and/or practices (policies that restrict access to these areas to only institutional staff and student-athletes are strongly encouraged). If possible, access to student-athletes' social networking media may provide an additional level of institutional oversight.
It is also important for elite student-athletes to understand that their actions have consequences -- not only on their eligibility, but to their teammates, coaches, and the negative media attention that ensues when violations are public in nature. Finally, institutions must be vigilant in reacting to any leads or information regarding possible violations related to amateurism or agent-related violations. Institutional staff members also must understand that failure to report on or react appropriately to information they have regarding a possible violation of an amateurism-related violation could lead to an NCAA investigation for major violations of NCAA legislation.
The threat of agent involvement with enrolled student-athletes is not likely to end any time soon. Thus, institutions must do the best they can to implement thorough and proactive programs that will protect their student-athletes and the institution itself from agent violations. The failure to be proactive could result in the ineligible participation of student-athletes or an investigation by the NCAA for inappropriate monitoring.
Ice Miller's Collegiate Sports Practice professionals are experienced at investigating and advising on any amateurism issues faced by a university and its student-athletes. For more information please contact Mark Jones, chair of Ice Miller's Collegiate Sports Practice at mark.jones@icemiller.com or (317) 236-2488 or Carrie McCaw, Ice Miller's Collegiate Sports Practice manager at carrie.mccaw@icemiller.com or (317) 236-5944.
Neither Mark Jones nor Carrie McCaw is licensed to practice law in any jurisdiction. For their biographies, please visit www.icemiller.com.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.