No Agent Rule"

Santa Clara Law Review Volume 61 Number 1 Article 1 2-1-2021 The Changing Landscape of Intercollegiate Athletics—The Need to Revisit the NCAA's "No Agent Rule" Sahl, John P. Follow this and additional works at: https://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation John P. Sahl, The Changing Landscape of Intercollegiate Athletics—The Need to Revisit the NCAA's "No Agent Rule," 61 SANTA CLARA L. REV. 1 (2020). This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized editor of Santa Clara Law Digital Commons. For more information, please contact [email protected]. THE CHANGING LANDSCAPE OF INTERCOLLEGIATE ATHLETICS—THE NEED TO REVISIT THE NCAA’S “NO AGENT RULE” John P. Sahl* The National Collegiate Athletic Association (NCAA), the primary governing body for intercollegiate athletics, promulgated its “No Agent Rule” in 1974 prohibiting advisors of student-athletes from communi- cating and negotiating with professional sports teams. As part of a core principle of amateurism, the NCAA adopted this rule, in part, to deline- ate between professional athletes and student athletes. However, through economic and societal evolution, this policy is antiquated and detrimental to the personal and professional development of college athletes. This Article argues in favor of expanding the recent Rice Commis- sion’s recommendation, adopted by the NCAA, to grant an exception from the No Agent Rule for Men’s Division I elite basketball players to all college sports and levels of competition. The NCAA’s landscape for governing college athletics has undergone many recent changes, some of which strengthen the notion that all student-athletes would benefit from earlier access to agent advice and assistance. The Changing Land- scape of Intercollegiate Athletics—The Need to Revisit the NCAA’s “No Agent Rule” discusses this need by first detailing the evolution of NCAA governance, followed by an analysis of the Gatto decision and its impact on the Rice Commission’s report promoting an exception to the No Agent Rule for Division I Men’s elite basketball players. Finally, this article recommends that because of the changed and ever-evolving landscape of college sports, the NCAA should abandon its No Agent Rule in favor of a Modified Agent Rule (MAR). The MAR * The author wishes to thank Professors Joann M. Sahl and Matthew Juravich, and the University of Akron Athletic Director, Lawrence R. Williams, for their helpful insights and comments and Associate Law Librarian Susan M. Altmeyer, and my research assistants, Lind- say Casile, Bridget Brenner, and David Belfiglio for their valuable research, editorial assistance, and generous support. 1 2 SANTA CLARA LAW REVIEW [Vol.61 would enable all student-athletes to contract with sports agents subject to some NCAA oversight to protect student-athletes from agent abuse and to support the NCAA’s commitment to amateurism. The MAR prom- ises to alleviate some of the stress and challenges that hinder all student- athletes, especially gifted athletes, when assessing how and by what means to enter the professional sports level. TABLE OF CONTENTS I. Introduction ................................................................................. 2 II. The NCAA—The Overlord of College Athletics ..................... 10 A. Overview—The NCAA and Regulating Intercollegiate Athletics ............................................................................. 11 III. Sports Agents ............................................................................ 19 A. The Role of Sports Agents ................................................. 20 B. Regulating Sports Agents: The Uniform Athlete Agents Act (UAAA) and Similar Rules ............................ 24 IV. United States v. Gatto and The Rice Commission .................... 29 A. The Rice Commission—“Everyone knows what’s been going on.” .................................................................. 34 V. An Interdisciplinary Perspective—Opening Access to Sports Agents for All Student-Athletes .................................... 41 VII. The Time is Ripe to Replace the “No Agent” Rule—Some Thoughts for a “Modified Agent” Rule .................................... 51 VIII. Conclusion ................................................................................ 56 I. INTRODUCTION The National Collegiate Athletic Association (NCAA) has long governed amateur collegiate athletics like a watchful overlord, relying on a maze of byzantine-like rules to promote, in large part, its institu- tional self-interests.1 These rules have enabled the NCAA to wield broad 1. GERALD GURNEY, DONNA A. LOPIANO & ANDREW ZIMBALIST, UNWINDING MADNESS: WHAT WENT WRONG WITH COLLEGE SPORTS AND HOW TO FIX IT 16 (2017) [hereinafter GURNEY] (describing the maze of byzantine-like rules in the NCAA Manual as being over “a thousand pages long, [with an extensive] list of quixotic regulations that purport to uphold amateurism . .”); see John P. Sahl, College Athletes and Due Process Protection: What’s Left After National Collegiate Athletic Association v. Tarkanian, ___ U.S. ___, 109 S. Ct. 454 (1988)?, 21 ARIZ. ST. L.J. 621, 624 (1989) (describing the NCAA as the “overlord of college sports”); see also id. at 622 (contending, contrary to the Supreme Court’s decision in 2020] THE NCAA’S “NO AGENT RULE” 3 authority over its members to enforce rule compliance. The end result of NCAA’s rules and broad authority is clear—the NCAA remains the leading force in college athletics with university presidents, the public, and others seeking its imprimatur.2 The steady stream of news reports about college sports and the NCAA highlights their importance in our nation’s daily affairs.3 The public has a seemingly insatiable appetite for information and stories about athletics, including NCAA athletics.4 This appetite is fueled by 24/7 sports coverage in a wide variety of outlets and platforms.5 Some of the stories are positive, for example, when a collegiate championship Tarkanian, that “college students should be entitled to constitutional due process before being deprived of their athletic eligibility”). 2. One example of “others” seeking NCAA approval would include commercial ven- dors, like Nike and Coca-Cola, who provide products to coaches, athletes, and fans. The NCAA’s broad authority may have diminished slightly over the last half-century. See Taylor Branch, The Shame of College Sports, ATLANTIC MONTHLY (Oct. 2011), https://www.theat- lantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/. Students of NCAA history can point to different benchmarks to show this gradual erosion of unbridled authority. Certainly, one key development in this erosion occurred in 1984 when the Univer- sity of Oklahoma Board of Regents successfully challenged the NCAA’s rules limiting the televising of college football games on antitrust grounds. NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 119-20 (1984). The case undermined the NCAA’s absolute con- trol over college football, a key source of revenue, and signaled to many that the NCAA’s power was not absolute, foreshadowing further lawsuits to curtail at least perceived NCAA abuses of power. One such lawsuit was NCAA v. Miller, in which the Ninth Circuit ruled that the Nevada law violated the dormant commerce clause by unduly burdening interstate commerce by requiring NCAA members to provide student athletes with certain due process pro- tections. 10 F.3d 633, 640 (9th Cir. 1993). 3. See, e.g., NCAA presidents set revised financial distribution to support college athletes, NCAA (Mar. 26, 2020, 1:23 PM), http://www.ncaa.org/about/resources/media-cen- ter/news/ncaa-presidents-set-revised-financial-distribution-support-college-athletes; see also, e.g., Ryan Lewis, Indians announce plans to extend protective Netting at Progressive Field for 2020 season, AKRON BEACON J. (Jan. 29, 2020, 11:51 AM), https://www.beaconjour- nal.com/sports/20200129/indians-announce-plans-to-extend-protective-netting—progressive-field-for-2020-season (reporting all thirty teams in Major League Baseball will be ex- tending netting after several serious incidents of fans being injured by foul balls); The Jim Rome Show (CBS Sports Radio 2020) (providing biweekly sports radio talk including sixty- second commentaries on the day’s top sports headlines). 4. See Rodney K. Smith, A Brief HistorY of the National Collegiate Athletic Associa- tion’s Role in Regulating Intercollegiate Athletics, 11 MARQ. SPORTS L. REV. 9, 9 (2000) [hereinafter Smith] (underscoring the public’s interest in sports, one expert referred to sport as “the religion of the American people” and noted “[a]s a people, we seem almost fixated on sport and devote much space in newspapers and newscasts to sport, with little space being allocated to religion”). 5. See, e.g., ESPN: COLLEGE FOOTBALL NATION BLOG, https://www.espn.com/blog/ncfnation (last visited Mar. 26, 2020); see also, e.g., BLEACHER REP., https://bleacherreport.com (last visited Mar. 26, 2020); see also, e.g., 247 SPORTS, https://247sports.com (last visited Mar. 26, 2020). 4 SANTA CLARA LAW REVIEW [Vol.61 sports team is invited to meet with the President of the United States6 at the White House or when a university’s team engages in charitable ac- tivities.7 Some of the stories are negative and cause a public stir.8 For example, a recent investigation found that “college

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