What is wrong with Ohio courts? First O’Brien, now this…

Many of us subscribe to the need for reform in various areas of the NCAA’s management of student-athletes (SAs). The White v NCAA settlement a year ago was a strategic maneuver that provided for more funds to be disbursed to SAs, with the important inclusion of the opportunity, not mandate, to afford SAs Comprehensive Health Insurance, the same that we as Faculty receive by our employers.

It is true that during the present NCAA administration a more flexible, responsive, and preemptive approach to policy and litigation management has been initiated. The past few settlements have been received with criticism, arguing that the member institutions will bear the financial burden in years to come. Fair criticism has also been targeting the dangerous prospects of what some of these settlements and certain policy amendments could mean for possible future decisions in appellate courts. This concern is especially true pertaining to amateurism deregulation and commercialization, allowing for institutions to compete for more revenue. No one can deny, however, that these settlements made sense, avoiding any unforeseen mishaps in this nation’s Halls of Justice.

Let’s talk about the latter for a minute as Oliver v NCAA is rather problematic (the full opinion is embedded below this post).

Reform in intercollegiate athletics, when coming from the US system of Jurisprudence, should be founded on solid theory, convincing arguments, and research that regardless of constituents’ predispositions would make legal sense and would be respected for intellectual quality and practical clarity. We all have in our minds judges’ decisions that really shaped the way we look at things in legal, policy, socioeconomic, and political sense. What do you remember about such decisions that gave you goosebumps? This Ohio Ct. decision by Judge Tone probably fails in most aspects important and well cited decisions were able to muster.

As this decision is considered and the appeals prepared, the Amateurism Cabinet and various Committees in the new governance structure of the Association are figuring out ways to come up with either de-regulation, or legislative amendments that preemptively treat many of the cases US Courts or ADR bodies within the NCAA would hear. Regardless of recent settlements, I strongly believe the NCAA has every right and the duty to appeal, and appeal again, preserving amateurism, per President Brand’s recent State of the Association article. Here’s why, very briefly:

Judge Tone’s concept of the SA as third party beneficiary of the K between the NCAA and the member institution (MI) is much appreciated. The question then becomes, did the NCAA violate the duty of good faith and fair dealing? Per Judge Tone, “if the Court finds that Bylaw 12.3.2.1 is void because it is against the public policy of Ohio, or arbitrary and capricious, and 19.7 interferes with the delegation of judicial power to the Courts of OH (!) then the NCAA did not deal with P honestly and reasonably and thus breached.”

This is why the sport movement has consistently tried to avoid being governed by entities outside sport, but always lobbied for independent governance. Further, with various ADR methods, including CAS internationally, and the Enforcement/Reinstatement processes in this case, individual rights and due process are upheld. Of course, one can always run into arbitrary and capricious ways of ADR processes. That’s where the always available resort to Courts comes in. Sadly, though, we frequently see that (many) judges are not the most capable to fully capture the conflicting concepts and deliver unobstructed and convincing decisions.

The NCAA rule does not instruct anyone not to hire an attorney. They merely draw the line where the attorney becomes an agent representing an SA in pro negotiations. For that matter, I accept and commend that the SAs need to have an idea of what their draft status, market position, and bargaining power may be, so as to prepare the necessary tactics that will allow for them to better negotiate the eventual pro sports career. But that is available… It’s called advice from a lawyer (12.3.2, very applicable to the baseball situations where they can be drafted out of high school, but they don’t NEED to hire an agent/utilize the lawyer as agent and if MLB is top on the list, then they should go ahead and hire an agent, otherwise, they should abide by NCAA rules) and/or pro sports counseling panel (12.3.4), which sadly only a few institutions appropriately employ. Thus, the NCAA rules do provide for what the judge wishes to ensure.

Hiring an agent is different. You hire an agent when you have made up your mind, and are convinced that the agent will position you appropriately for the upcoming draft/negotiation phase. Then, according to the NCAA, the line has been crossed… And it’s their prerogative to declare so, having made tools available for SAs to fully consider their options.

The Judge says that the client/SA and the NCAA will never know what the attorney is doing… I wonder if the Judge would allow his attorney representing him in an election dispute to do anything the attorney wanted, without prior consultation. I also wonder how Oliver’s first counsel thought that blowing the whistle and sharing proprietary information would allow for retrieval of fees… But that’s a matter for their Bar to decide.

Further, the Judge alleges that the rule cannot be enforced, hence enforced selectively. I do not understand how the judge can know how the NCAA Enforcement and investigative process will work on particular cases and argue that there is selective enforcement. One can argue that if SAs and institutional staff do not disclose such instances, they would violate other regulations pertaining to institutional control, unethical conduct, etc… The fact one can lie and attempt to cover violations, does not mean a rule is wrong.

Thereafter the Judge continues:

“For a SA to be permitted to have an attorney and then to tell that SA that his attorney cannot be present during the discussion of an offer from a professional organization, is akin to a patient hiring a doctor but the doctor is told by the hospital board and the insurance company that he (the doctor) can not be present when the patient meets with a surgeon because the conference may improve his patient’s decision making power. 12.3.2.1 is unreliable (capricious) and illogical (arbitrary) and indeed stifles what attorneys are trained and retained to do.”

… to suggest that 12.3.2.1 accomplishes (retaining a clear line of demarcation…) is illegitimate.

No entity, other than the one designated by the state, can dictate to an attorney where, what, how, or when he should represent his client. With all due respect, surely that decision shall not be determined by the NCAA and its member institutions, no matter what the D utters is the purpose of the rule.

I still am trying to fully realize the example used by the Judge and grapple with the rule being rendered capricious and arbitrary.

Bylaw 19.7 on Restitution has been frequently litigated, both prior and subsequent to Tarkanian. As recent examples one could refer to Lasege and Yeo. In these two decisions, the KY and TX lower and appellate courts found areas of similarity to this judgment of 19.7. Both states’ Supreme Cts. disagreed, but let’s see what the decisions said. They mentioned that there shouldn’t be a punitive rule for resorting to the Court system. The KY S. Ct. majority opinion then said that the trial court substituted NCAA review. Of course, the minority opinion came back with “it’s the majority that substitutes trial court’s judgment”… and onward the entertaining value of such litigation goes, including the commentary on injunctive relief: “… Courts are a very poor place to conduct sports events… No ‘drive through windows’ on courthouses for good reason…”

As the Judge noted and the D alleged, it would be difficult to fathom a competitive sporting society where institutions, which are using ineligible players (indeed after final adjudication), are not sanctioned. This can in no way compromise the ability of institutions and SAs accessing US Justice. How could it? However, if the final adjudication renders these lower courts’ decisions false, as happened in the aforementioned decisions, the institutions will need to deal with the consequences. This is instrumental in upholding competitive equity, and like the Judge said, the schools would have no other way after his and similar decisions, but to use these players. However, the NCAA has the power (as entrusted by its membership) and duty to uphold its principles. The alternative would be to allow anyone who disagrees with the ADR mechanisms of said organization to consistently recruit and use ineligible players, and then forum-shop taking matters to, say, California, or Ohio courts, where Ps are assured injunctions will allow them to win the battles on the court and field. And should they eventually lose in court… they really lost very little, as the revenue and exposure from winning in sport could arguably pay for their incurred legal fees.

In the same portion of the decision, on 19.7, the Judge uses the “lipstick on the pig” adage, which I fail to see applied here. Moreover, judges need to reconsider using popular phrases of the sort… It disrespects pigs… and insults people’s intelligence.

He concludes: “Bylaw is overreaching. It is governed by no fixed standard except that which is self-serving for D.” Even the most dispassionate appellate judicial mind would consider this inappropriate.

As was evident by the portion on the Ps assertion of tortiuous (sic) interference with K (the K between SA and his new counsel!), it was a waste of public monies, and thankfully the Judge threw it out somewhat promptly.

Respectfully, one could argue the decision is resplendent with formatting, syntax, grammar, and various other errors. Furthermore, the decision abruptly engages in findings that are nowhere close to substantiated by the precedent legal analysis and in pp. 25-26 it just so appears that the decision is being wrapped up in haste.

Therein, the Judge purports that P established the elements for a prima facie case in tortuous interference with the OSU K (between SA and OSU). Here one needs to clarify that earlier in the decision the NCAA and the Judge agree that the NCAA does not have a contractual relationship with the SA, however it is decided that the SA has a contractual relationship with the institution (OSU) via the NLI, GIA, etc. Moreover, by declaring OSU as an agent of the NCAA, the Judge renders the NCAA liable for any tortuous conduct by OSU… Any tortuous conduct (p. 25, Sec 2)!

Then the Judge argues that the investigators and NCAA staff tortuously interfered with the SA-OSU K. If we accepted this logic, the whole investigative, Enforcement, Reinstatement, and Certification process of the NCAA would be negated.

Lastly, the Judge purports that since he has personam jurisdiction, the NCAA’s question on who would need to abide by this decision (OH, OK, all members?) is not convincing. “Scales of Justice have tilted in Ps favor”… Yet, the casual observer is still attempting to figure that one out. The weights on the Justice scale are not predetermined, they weigh as much as people decide they will weigh. Plus, the scale of Justice is not calibrated.

Far be it from a dispassionate academic to challenge a Judge’s validity and legitimacy. Nonetheless, this will generously be considered as an unfortunate decision.

Closing, what we need to revisit is this, and I believe it is fair coming from a “foreigner”: Legal scholars, critics, and sadly judges need to understand what intercollegiate athletics is about, what it stood and attempts to stand for, and where its foundation lies. Yes, it is now commercial in nature. Yes there’s tons of money involved in college FB and MBB. But decisions such as these, and commentary that wishes to abolish the system without working through the system to promote prudent reform for all constituents involved are not offering anything of value.

Overseas we don’t have anything quite close to intercollegiate athletics. Young athletes will be challenged to promote their professional dreams, and most of them will fail in their early pursuits, having at the same time sacrificed a good deal of time that could be invested in their education and foundation for a solid professional career in other fields. As we are trying to demarcate professional from what could be deemed “other” sport, we need to remember what this system in the US has done, and what it will keep on doing… And that is offer an identity to many areas of this country, create citizenship, and offer opportunities not just to SAs but all of us to be employed in this lucrative business. Open-fettered competition without restraints per “amateurism” standards and other checks and balances as developed by the membership and promoted by the Association will not work.

America and its judges need to realize what they have. Intercollegiate athletics is good business, and it will continue to contribute immensely for a country and a world in crisis. Sure needs work, but all institutions in contemporary reality need a lot of work. This work is better entrusted to the ones who live, breathe, and govern it. And we can all help.

The full opinion is below for those interested. This post is also located on the National Sports and Entertainment Law Society Blog to expand the audience on this very important topic.

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