The NCAA and Legal Ethics Rules

The paper I wrote for Santa Clara University's sports law symposium in September is posted on SSRN.  The paper is titled, The NCAA's Indirect Regulation of Lawyer-Agents: In Direct Conflict with the Model Rules of Professional Conduct, and here is the abstract:

Abstract:
The NCAA does not directly regulate lawyers but it does so indirectly by regulating the lawyer’s client in a manner that has an adverse effect on the lawyer’s representation of the client to the disadvantage of the client.  In this regard, I am referring to the ability of a high school or college athlete to make a fully informed decision whether to sign a professional contract.  NCAA rules not only place restrictions on their ability to “test the waters” but also to retain counsel and have counsel speak to, and negotiate with, club personnel on their behalf.  This paper addresses the following institutional barriers to ethical behavior: (1) NCAA restrictions that prohibit an athlete from (i) having a lawyer communicate or negotiate a contract with professional club personnel on the athlete's behalf (Bylaw 12.3.2.1) and (ii) entering an agreement with a lawyer to perform such services (Bylaw 12.3.1), both of which limit a lawyer’s ability to effectively represent the interests of the client; and (2) the NCAA Eligibility Center’s Questionnaire sent to drafted baseball players in conjunction with the NCAA’s “Unethical Conduct” rule (Bylaw 10.1), which compels a lawyer’s client to divulge confidential information and communications related to the representation.  An important public policy question is whether a private association should be allowed to regulate the attorney-client relationship, particularly in ways that are in direct conflict with the Model Rules of Professional Conduct, when no state bar or state supreme court has given the association the power or authority to do so.

The CHLPA's Incredible Ineptitude

The business of hockey is an unmitigated disaster. The NHL and NHLPA are doing their very best to destroy the greatest hockey league in the world. This week’s cancellation of the Winter Classic, a true spectacle that was to be held in front of over 100,000 fans outside in Michigan Stadium, is a crushing blow to fans everywhere.

However, the debacle that is the 2012 NHL lockout is only surpassed in its ineptitude for labor relations by what’s happening to Major Junior Hockey.

The Canadian Hockey League (CHL) is the governing body of the three Canadian major junior leagues—the Ontario Hockey League, the Quebec Major Junior Hockey League, and the Western Hockey League. Coming out of virtually nowhere, the Canadian Hockey League Players Association (CHLPA) organized and recently began beating the drum for better working conditions.

The CHLPA, under the apparent lead of George Laracque, claimed to be in discussion with the NCAA to see if they could get the CHL deemed to be defined as an amateur league—thereby allowing its members access to college hockey at a later date. So far, this all makes sense. A league seeks to maximize revenue for its owners while a union advocates on behalf of the players.

Unfortunately, standard operating procedures end there because:

1. Seemingly from an episode out of Arrested Development, the CHLPA used a spokesman by the name of Derek Clarke. However, apparently several individuals were using that name in press briefings and the CHL has hired a private investigator to find “the real Derek Clarke.” 


2. One of the men supporting the CHLPA was Randy Gumbley, an individual convicted of stealing more than $ 100,000 from families of former CHL players in 2009. 


3. The law firm of Victory Square Law Office, which was representing the CHLPA in court, has withdrawn its services as counsel for the union. 


4. The CHLPA claims George Laraque as its Executive Director yet it’s clear he was intended to be the public face of the union but not its real leader. 


5. Despite existing NCAA rules regarding the CHL’s definition as a professional league, Laraque claimed that the NCAA provided him with documentation that there is a way in which CHL players may make their way to college hockey. 


6. Unfortunately, according to the NCAA, the CHLPA misunderstood their rules and, as far as anyone can tell, the CHL has virtually zero chance of a reclassification, making college hockey an impossibility for its players. 


7. When all of this information came to light, Laraque claimed he was resigning but would stay on until a suitable replacement was named.

Unfortunately, and not for the first time, the rights of the players have been slid under the rug behind union incompetency in the sport of hockey. Player Associations are critical features of professional sports. History has taught us that not all players’ associations—nor their leadership—are created equal. To borrow a hockey maxim, my advice to the CHLPA leadership next time: “finish your check."

NCAA Sends Mixed Signals with New Enforcement Program

On Tuesday October 30th, the NCAA Board of Directors announced the adoption of a new enforcement structure that, among other things, creates additional levels of infractions, enhances accountability for head coaches, and seeks to punish violators with sanctions that more appropriately align with the actions that occurred.  The most striking of these new initiatives, to be implemented beginning in August of 2013, is the creation of the new four-tiered structure for violation classification. 

Under the current model, violations are classified as either major or secondary.  The new system sets forth violations as follows: Level I, Severe breach of conduct; Level II, Significant breach of conduct; Level III, Breach of conduct; and Level IV, Incidental issues.  A copy of the NCAA’s press release may be found here.  This new structure is the product of a year-long effort by the thirteen-member Board comprised of presidents, athletic directors, and conference commissioners.   President Mark Emmert described the changes as part of a devotion to “protecting the collegiate model,” in part by “remov[ing] the ‘risk-reward’ analysis that has tempted people.”  

These changes come on the heels of increasing external pressure for a more consistent and transparent process, with a number of major infractions cases serving as the backdrop for this magnified criticism.   Greater accountability and stricter sanctions is undoubtedly a step in the right direction when it comes to enforcement of what would be considered major infractions under the current framework.  The NCAA should be applauded for taking measures to ensure consequences for coaches who plead ignorance while violations blatantly occur on their watches.  But at the same time, the new violation structure is troublesome.   Despite admirable efforts to construct a better system, this new four-tiered structure for violation classification fails to ameliorate many of the common concerns expressed with respect to NCAA Bylaws and enforcement of the same.  Hopefully, this will be cleared-up with the upcoming changes to the substantive “rules” in the Bylaws.   

The NCAA Bylaws are often denounced as too lengthy and too complex, and deservedly so.  Moving from a two-tiered violation structure to a four-tiered system, if not matched-up with more common sense in rule substance, is an obvious step backward, and is counterintuitive if the desired outcome is a more workable framework.  Increased confusion is even more likely when one considers the near endless interpretations that could be attributed to the definitions describing each tier.  For example, consider the difference between a violation that “threatens the integrity of the NCAA,” versus a violation that merely “provides more than a minimal, but less than a substantial…advantage.”  One definition classifies a Level I violation, while the other corresponds with Level II, but is there really a difference?   The definitions may mean something different to a coach versus someone in compliance at a school or enforcement at the NCAA, so how then is the goal of deterrence met for the problem that President Emmert describes as a calculation of risk vs. reward made by coaches who currently do not have sufficient risk to their livelihoods or respective programs.

Under this system, inconsistencies may abound to an even greater degree than under the current model.  This is likely to complicate the NCAA’s investigative measures, which is problematic given the Association’s already limited resources; resources so limited that some have even suggested that the NCAA get out of the enforcement business altogether (for a more in depth discussion of this proposal, see this well-done piece by Attorney Stephen A. Miller, recently published in The Atlantic).  Finally, if the NCAA is really student-athlete first, then this measure does nothing to address the countless Bylaws that punish student-athletes for technical violations that provide no competitive advantage, and do little more than burden an already overwhelmed enforcement staff.  Again, it is worth pondering, is an “incidental issue” even worth sanctioning?  I hope that reforms not just in terms of a scholarship enhancement, but in terms of rules affecting student-athletes’ behavior on a day-to-day basis are addressed in the coming months.

Since the NCAA has chosen to divert its attention first to the method in which these intricate and often superfluous regulations are classified, my worry is that dealing with the substance later will lead to a continuance in seeing violations shoe-horned into a rigid framework that sometimes, but does not always fit.  For those that desire more consistency in results, do you want the NCAA to have something akin to Federal Sentencing Guidelines, or more common sense in results?  I am not yet convinced that the new enforcement structure will get us more common sense in results, which many (myself included) would like to see as opposed to more rigidity.

Over time, perhaps this will prove to be a positive step toward a streamlined, consistent, and fair process.  For now though, a more detailed systemization of the NCAA’s enforcement structure only seems to complicate matters further if there is not significant overhaul to the substance of the rules themselves.  While my experiences may leave me a bit biased, until we see a comprehensive reassessment of the actual Bylaw language (promised in the next few months), I foresee this self-proclaimed “overhaul” as little more than a re-branding exercise.

*Hat tip to Brian Konkel for his work on this piece.

Will UK tort law influence NFL decision to play games in London?

A couple of questions for UK sports lawyers:

1) If the NFL plays more games in London (as both NFL commissioner Roger Goodell and London Mayor Boris Johnson want), will the NFL be exposed to UK tort law regarding concussions and brain injury? 

2) If so, what might we expect? 

More on NCAA Investigations

Stephen Miller--my friend, law school classmate, and Philadelphia attorney who does some representation of college athletes before the NCAA--is back with more thoughts on how the NCAA can improve the speed and efficiency of its investigation and enforcement systems.

The Other (More Silent) Challenge to Sports Anti-Gambling Laws

Ryan Rodenberg blogged yesterday (here) about how governor Chris Christie is moving forward with plans to bring sports gambling to New Jersey, and how America's major sports leagues have brought suit to stop this under the Professional and Amateur Sports Protection Act ("PAPSA").

However, the flamboyant Governor Christie is not the only person engaging in conduct reasonably likely to test the scope of PAPSA.  Several online fantasy sports websites are also challenging PAPSA in more subtle ways, such as by offering pay-to-enter NCAA tournament contests or NFL survivor pools that involve predicting the winners of actual sporting events.

A quick perusal of the Internet reveals at least a few well-established U.S. websites that currently offer pay-to-enter NFL survivor pools.  For example, the company Real Time Fantasy Sports runs an NFL survivor pool called King of the Mountain, in which participants pay $9.95 to enter and are awarded with a $10,000 prize if they pick the most consecutive NFL games correctly. 

While hosts of pay-to-enter survivor pools probably liken their games to fantasy sports leagues, there is technically a distinction between the two, at least under federal law.  As discussed in my recent law review article, A Short Treatise on Fantasy Sports and the Law, the Uniform Internet Gambling Act exempts from federal scrutiny games that meet three specific criteria: (1) the "value of the prizes is not determined by the number of participants;" (2)  "[a]ll winning outcomes relative the relative knowledge and skill of the participants," and (3) no winning outcome is based on the outcome of the score of games or the single performance of an individual athlete in a single, real-world event."  While some pay-to-enter fantasy sports games may fall within this three-prong safe harbor, it seems doubtful that any NFL survivor pool could meet the third prong.

Of course, in the grand scheme of things, running a pay-to-enter survivor pool is probably not the worst act someone could commit, and a creative lawyer might be able to argue that a small entry fee actually represents the cost of operating the website rather than a wager to enter.  However, if authorities choose not to challenge these type of contests, it becomes all that much harder to make a good faith argument against regulated sports books, such as the type that Governor Christie wants to allow in New Jersey.

Thus, perhaps sports leagues might soon seek to challenge these sorts of complex picking games as a way to preserve the strength of their argument against Governor Christie's plan to allow for more traditional sports gambling.  Authorities may also seek to challenge these games as a way to halt a slippery slope back toward gambling on individual game results.

Capital one league: Chelsea FC beats Manchester United in 5-4 classical drama as Chelsea trio shine. (All Goals Video)