Hell Hath No Fury like a Phillie ScornedThe Philadelphia Phillies, Ben Wetzler, and the Agent Rule

By Ryan Larson

INTRODUCTIONOn February 14, it was revealed that the Philadelphia Phillies reported Oregon State University pitcher Ben Wetzler to the NCAA for violating the agent rule.[footnoteRef:1] Wetzler, a 2013 draft selection, was unable to reach agreement with the team and returned to Oregon State for his senior season. The Phillies retaliated by breaking league custom and reported Wetzler. He was suspended for 11 games.[footnoteRef:2] [1: Scooby Axson, Report: Phillies Turn in Oregon States Ben Wetzler to NCAA for Using an Agent, Sports Illustrated (Feb 20, 2014) http://tracking.si.com/2014/02/19/phillies-turn-in-oregon-state-ben-wetzler-to-ncaa.] [2: Connor Letourneau, NCAA denies Oregon State's appeal of Ben Wetzler's suspension, The Oregonian (Feb 28, 2014) http://www.oregonlive.com/beavers/index.ssf/2014/02/ncaa_denies_oregon_states_appe.html]

The Wetzler story rehashes the issue of agents in amateur baseball. This paper will address the problem surrounding the agent rule and propose a solution which will protect amateur baseball players while upholding the principle of amateurism.THE PROBLEMSince the story went public, the Phillies have faced an avalanche of criticism from baseball insiders and fans. Theyre perceived as bitter, vengeful, and seeking to ruin a young mans life. However, for the public to focus its ire solely on the Phillies would be a mistake. Instead, more attention should be paid to the rule itself. NCAA Bylaw 12.3 regulates the use of agents. Generally speaking, a player is rendered ineligible if he has agreed (orally or in writing) to use an agent in marketing his ability or reputation in a particular sport.[footnoteRef:3] This includes using the services of legal counsel during contract negotiations.[footnoteRef:4] An attorney cannot be present during negotiations or have direct contact in any form (in person, phone, email) with a team on behalf of the player.[footnoteRef:5] [3: 2013-2014 NCAA Division I Manual, Bylaw 12.3.1, 66 (2013) [hereafter NCAA Manual].] [4: NCAA Manual, supra note 3, Bylaw 12.3.2, at 66.] [5: NCAA Manual, supra note 3, Bylaw 12.3.2.1, at 66.]

While the NCAA allows a student-athlete to consult a lawyer regarding a proposed contract, it is subject to the communication restrictions listed above.[footnoteRef:6] Taking away the real-time use of an attorney during contract negotiations renders the player at a clear disadvantage. Team negotiators are trained and experienced in law, negotiation, industry knowledge, and using leverage to pressure a deal. Unless the player or a family member has this experience, the team is in a position to exploit them. [6: The athlete must pay the attorneys rate for all services rendered.]

In lieu of an agent, many schools provide a professional sports counseling panel.[footnoteRef:7] The panel consists of about seven members, each with various roles at the school. They are empowered to advise student-athletes on a professional career; they may also assist in agent selection, contract review, and communicating with agents and team representatives to determine a players market value or to secure a tryout.[footnoteRef:8] Although they perform many tasks of a traditional agent, the panel is strictly informational. Their role is not to market the player. [7: NCAA Manual, supra note 3, Bylaw 12.3.4, at 66-67.] [8: Id.]

While well intentioned, the panel is flawed. First, its inefficient. Theyre acting as an intermediary between the player and an agent or team. This creates an extra step in the process, slowing the flow of information. In sports, negotiations are fast and fluid. Information and circumstances can change quickly. The panels advice might be worthless by the time the player uses it. Second, members of the panel already have a full-time position. Im concerned that their schedules will hinder the quality of service necessary for a student-athlete to make an informed decision. Finally, the panel does not specialize in a particular sport. Their job is to serve all student-athletes. Because the context for negotiation is different in each sport, certain situations may require specialized knowledge. Therefore, an athlete would be better protected by someone with such expertise.DISCUSSIONSCOPEThis problem is unique to college baseball for two reasons. First, unlike basketball or football, amateur baseball players dont have to declare for the draft. The player can be drafted provided they meet certain eligibility requirements.[footnoteRef:9] Second, baseball is the only major sport to have its draft mid-season. The NFL and NBA calendar allows a college prospect time to research, declare, and prepare for the draft. By contrast, the MLBs signing deadline gives a drafted prospect only one month to ascertain their market value and reach a fair agreement. [9: Official Rules, MLB.com, http://mlb.mlb.com/mlb/draftday/rules.jsp.]

AGENT CERTIFICATIONTo represent a Major League Baseball player, an agent must be certified by the Major League Baseball Players Association and licensed in every state in which they operate that requires it. The MLBPA has an extensive list of business and ethical regulations which certified agents must comply with.[footnoteRef:10] [10: MLBPA Regulations Governing Player Agents, Section 5, 17-28 (2010).]

THE RULEOne of the NCAAs primary concerns is the well-being of their student-athletes. In their view, this goal is achieved by creating, maintaining and enforcing an environment centered on amateurism. It was in this light that they enacted the agent rule. By denying access to an agent, the NCAAs goal is to protect student-athletes from exploitation. Since the MLBPA only governs agents with a Major League client, what about those without one? Many agents practice without a license from a state body of players association. This type of agent is unregulated and can cause an athlete more harm than good. The NCAA doesnt want an agent (without a governing authority) to manipulate an athlete into losing their eligibility. This is an important concern which must be addressed.The rule creates a black market for agents in college baseball. Players cannot be honest about their communications with agents because of possible suspension. As youd expect, under the table agreements are quite common. The player has ample motivation to use an agent. In baseball, most dont make it to a second contract. To secure a fair agreement, players like Ben Wetzler are willing to risk their eligibility because they recognize the teams inherent advantage.OLIVER V. NCAAA situation similar to Wetzlers arose in the Andrew Oliver case. Oliver was selected by the Minnesota Twins out of high school.[footnoteRef:11] After failing to reach agreement, he decided to attend Oklahoma State University and cut ties with his agent.[footnoteRef:12] The agent reported Oliver to the NCAA for violating the rule. Oliver was suspended, and sued the NCAA in Erie County, Ohio.[footnoteRef:13] [11: Oliver v. NCAA, 920 N.E.2d 203 (Ohio Com.Pl. 2009).] [12: Id. at 208.] [13: Id.]

Judge Tone said that the NCAA could not allow an athlete to use a lawyer while controlling what the lawyer does for the client.[footnoteRef:14] He held that despite the NCAAs argument, the agent rule does not retain a clear line of demarcation between professionalism and amateurism, resulting in athlete exploitation by commercial enterprise.[footnoteRef:15] Tone called the agent rule arbitrary and capricious, and subject to select enforcement.[footnoteRef:16] He even likened it to getting surgery without consulting a doctor.[footnoteRef:17] The judge would rule in Olivers favor, striking down the rule. [14: Id. at 214.] [15: Id.] [16: Id.] [17: Id.]

After the ruling, the NCAA settled with Oliver.[footnoteRef:18] The settlement vacated Judge Tones order and allowed the NCAA to continue enforcing the agent rule.[footnoteRef:19] [18: Matthew Stross, "The NCAA's 'No-Agent' Rule: Blurring Amateurism", Mississippi Sports Law Review, (March 2013). http://mssportslaw.olemiss.edu/files/2013/05/Stross-p.-167.pdf.] [19: Id.]

RECOMMENDATIONThe NCAA has a chance to change this rule before another Oliver comes, saving time and money. Any solution must address four requirements.1. More protection for student-athletes. 2. Uphold the principle of amateurism.3. More NCAA control over agents4. Reduce the black market for agents.The NCAA should create a system in which attorneys apply for certification to represent student-athletes.To be certified, a perspective agent must be a bar admitted attorney within the United States or Canada. The certification process will require a fee and comprehensive background check. Only the most qualified will be granted certification. Prospective agents must be certified by the MLBPA, and be registered in any state which requires it. Once certified by the NCAA, an agent must comply with the rules and regulations created in conjunction with the systems implementation. The next step is to set regulations governing certified agents. First, the purpose of this program is to allow certified attorneys to assist the student-athlete at the bargaining table. This is how the first goal of protecting the athlete is achieved. Second, certified agents cannot market a student-athlete outside the scope of negotiation. Empowering the attorney to market a player maintains the status quo and violates amateurism standards. Third, the player must pay the attorneys rate for all services rendered. These second and third points are necessary to retain the line of demarcation between professional and amateur. Finally, perspective and certified agents will fund the system and its governance.[footnoteRef:20] A disclosure and documentation system will mirror best practices. [20: Application and yearly fee.]

The system satisfies all requirements. Requiring certification gives the NCAA direct control over agents. Allowing players to use an attorney in negotiations will provide additional protection for student-athletes like Ben Wetzler, uphold the principle of amateurism, and reduce the black market for agents.1