Andy Oliver's case was settled with the
NCAA, but the implications seem far
The NCAA has been accused of being many things – arrogant, intimidating, oppressive – but stupid isn’t one of them. And they proved it last week when a settlement was announced in the suit brought by Andy Oliver, the former Oklahoma State University pitcher who was punished for violating an NCAA bylaw against having an attorney.
Oliver was drafted out of high school by the Minnesota Twins in the 17th round of the 2006 free agent draft, but opted to play college ball instead of signing a professional contract. Two years later, the NCAA suspended Oliver on the eve of the 2008 NCAA baseball tournament after he admitted that his attorney was present during discussions he had with the Twins in 2006.
His attorney’s presence violated NCAA Bylaw 18.104.22.168, which states that “a lawyer may not be present during discussions between a student-athlete and a professional team or have any direct contact (in person, by telephone or by mail) with a professional sports organization on behalf of” a student-athlete.
In addition to the tournament suspension, the NCAA declared that Oliver should sit out 70% of the Cowboys’ 2009 schedule. Oliver sued, and in a modern day version of David and Goliath, his attorney, Richard Johnson of Cleveland, Ohio, obtained an injunction against the NCAA. The injunction was quickly followed by a trial on the legal issues. In a landmark decision widely hailed for its common sense, the presiding judge lambasted the NCAA for depriving student-athletes of rights that are taken for granted by the rest of us, namely, the right to counsel.
Judge Tygh Tone shot down Bylaw 22.214.171.124, saying the NCAA couldn’t tell student-athletes that they could consult with legal counsel, and then tell counsel how to represent their clients.
The damage portion of the case, which was separated from the trial on the merits, was scheduled to be heard on October 19, but the NCAA wisely settled the case for $750,000 before the matter was presented to a jury. The NCAA has to be declared the winner in this case, regardless of the amount they paid Oliver. And yet, one can certainly understand Oliver’s motivation to put the matter in his rear view mirror. He signed with the Detroit Tigers after being selected in the second round of last June’s draft and his priority needs to be his professional career.
The NCAA had vowed to appeal the case, a process that could have taken 3-5 years and cost millions of dollars. By settling the case, the NCAA merely transferred some portion of its projected legal fees to Oliver in exchange for a dismissal of the lawsuit. In effect, the case disappears, which allows the NCAA to act as if there never was a judicial finding against its Bylaws and actions.
In fact, that’s the position the NCAA took even after Tone’s decision on February 12. The governing body maintained that Bylaw 126.96.36.199 was still in existence, issuing press releases to that effect and threatening student-athletes with loss of eligibility if they ignored the long-standing rules against engaging legal counsel. Those actions almost led to a contempt of court finding against the NCAA.
Even if the decision had not been reversed on appeal, the NCAA could still have argued that it only applied in Ohio. The NCAA’s position would have been that student-athletes in the other 49 states were still subject to Bylaw 188.8.131.52. But that’s not how Judge Tone and other legal experts saw its application. The dismissal of Oliver’s case renders that argument, along with the pitcher’s victory over the NCAA, moot.
The settlement was somewhat surprising, given the NCAA’s avowed objection to settling cases for fear of encouraging future lawsuits. But the NCAA could see the handwriting on the wall, and it didn’t spell “Victory.” For the NCAA, a loss would have constituted a major chip in its heretofore virtually impregnable armor at a time when it is under fire on several fronts for using student-athletes for financial gain. The governing body obviously determined that the potential reward wasn’t worth the risk.
There’s no reason to believe the NCAA won’t continue its unconscionable, heavy-handed, and virtually unregulated abuse of student-athletes. But stupid they aren’t. The Oliver settlement left no doubt about that.
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Jordan Kobritz is a staff member of the Business of Sports Network. He is a former attorney, CPA, and Minor League Baseball team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University and teaches the Business of Sports at the University of Wyoming.
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