Potential Claims Against NCAA For Suspending College Baseball Player

Updated: February 2, 2015

The NCAA suspended Oregon State pitcher Ben Wetzler for the first 11 games of the 2014 season for allegedly having an agent participate in negotiations with the Phillies. The NCAA’s absurd rule preventing drafted college baseball players from having an agent communicate directly with the club that drafts them is ignored by every club and almost every agent and player.

Phillies Report Alleged Rule Violation To NCAA:
The NCAA rule prohibiting agents of drafted players from having direct communication with clubs has rarely been enforced because agents and players are not going to report themselves and clubs want to maintain goodwill with the agents and players. The two previous publicized cases related to this rule were brought to the NCAA’s attention because of unique circumstances. The NCAA became aware of Andy Oliver’s alleged violation because his advisors out of high school reported the violation to the NCAA after Oliver chose a new advisor while he was in college. The NCAA became aware of James Paxton’s potential rule violation based on a blog post referencing negotiations between Paxton’s advisor and the Blue Jays. The shocking part about Wetzler’s case is that the Philadelphia Phillies reportedly notified the NCAA of the alleged violation. While Wetzler likely will not initiate any lawsuits since he was eligible to pitch for the last 80% of Oregon State’s season and did not see his draft status affected, it is interesting to analyze whether Wetzler could successfully sue the Phillies for causing his 11-game NCAA suspension.

Background on NCAA Rule:
Unlike college basketball and football players, college baseball players do not declare for the major league draft. The 30 major league baseball teams can draft any graduating high school senior, any junior college player, or any college player from a four-year college if such player has completed his junior or senior year or is at least 21 years old within 45 days of the draft.

In furtherance of its mission statement, which provides, in part, that the NCAA seeks to “retain a clear line of demarcation between intercollegiate athletics and professional sports,” the NCAA prohibits players from agreeing verbally or in writing to be represented by an agent. [1] The baseball draft system has created a problem for the NCAA. A high school senior or college junior may be drafted and attempt to negotiate a contract with a club but may decide not to sign and enter or return to school. In 2013, 316 of the 1,216 players drafted (25.9%) did not sign.

The NCAA realizes that players drafted need legal representation but the NCAA does not want to allow players to hire an agent for fear that it undermines its mission statement. While the NCAA could create a limited exception that allows only drafted baseball players to hire an agent to perform services until the player either signs or returns to school, the NCAA has created a bizarre rule that attempts to regulate lawyers.

Under NCAA Bylaw 12.3.2, an athlete may secure advice from a lawyer concerning a professional contract but the lawyer cannot represent the athlete in negotiations for such contract. This means that a player’s advisor cannot be present during the discussion of a contract offer or have any direct contact with the team. Typically, after a player is drafted, the club will contact the advisor. Sometimes club officials run into the advisor at a game and engage in impromptu conversations. Under the NCAA Rules, the advisor is supposed to hang up the phone or change the topic of the conversation and call up his or her young client, who might only be 17 years old, and tell the client what to say, and then the client is supposed to call the club’s GM or scouting director, who may have more years of negotiating experience than the player years of age, and convey that information without being intimidated. Then when the GM responds with additional information, the kid is supposed to hang up and try to remember what the GM said and then communicate that back to the agent. This is not an efficient process and is unfair to the player.

Clubs try to get players to sign quickly so they can get the player out to a short-season minor league team before the short season begins. When agents are not present at meetings, clubs sometimes pressure players into signing, telling them that if they sign on the spot, they can be in the starting lineup opening day, or that other players will get their money if the contract is not signed. Aside from the bizarre NCAA Rule potentially causing a player to lose significant money, it can cause players to accept terms without understanding them. While all players sign a standard minor league contract, some clubs will include a separate letter agreement with additional terms. In 2005, for example, some clubs included a signing bonus forfeiture provision in letter agreements which stated that if the player dialed to report to spring training any year or was absent from the Club without permission for a material portion of any playing season, the player would have to make a pro-rata repayment of his signing bonus. Clubs told players that this language was required by the Commissioner’s Office. Agents notified the Players Association which sent a letter to the Commissioner’s Office, and the Commissioner’s Office responded that it had provided clubs with the forfeiture language but that the clause was optional. Some players may have signed contracts with this language if they did not have an advisor present because they assumed the team was making an accurate representation to them.

Court Declares NCAA Rule Void Against Public Policy:
Not surprisingly, an Ohio judge, in the Oliver case, held that NCAA Bylaw is void because it “is arbitrary and capricious and against the public policy of the state of Ohio as well as all states within this Union and further limits the player’s ability to effectively negotiate a contract.” The Court explained that the rule “stifles what attorneys are trained and retained to do.” The Court explained some of the unmanageable ethical dilemmas the rule creates:
“The process advanced by the NCAA hinders representation provided by legal counsel creating an atmosphere fraught with ethical dilemmas and pitfalls that an attorney consulting a student-athlete must encounter. Will the attorney be able to advance what is best for the client or will a neutral third party, the NCAA, tie his hands? What harm could possibly befall the student-athlete if such a rule were not found? What occurs if the parents of a student are attorneys or for that matter sport agents? What would have happened if Tim Baratta had been in the kitchen or outside or on the patio instead of in the same room as his client when the offer from the Minnesota Twins was made to Plaintiff [Oliver]?”
The court noted that it supports the NCAA’s goal to preserve a clear line of demarcation between and amateurism and professionalism but stated that “to suggest that Bylaw 12.3.21 accomplished that purpose by instructing a student-athlete that his attorney cannot do what he was hired him or her to do, is simply illegitimate.”
The court held that “no entity, other than that 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 Defendant utters is the purpose of the rule. If the Defendant intends to deal with this athlete or any athlete in good faith, the student-athlete should have the opportunity to have the tools present (in this case an attorney) that would allow him to make a wise decision without automatically being deemed a professional, especially when such contractual negotiations can be overwhelming, even to those who are skilled in their implementation.”
Ultimately, Andy Oliver settled the case with the NCAA for a reported $750,000, and as part of the settlement, the order declaring the rule void was vacated. As the Wetzler case demonstrates, however, the NCAA is still enforcing the rule, although it suspended Wetzler for only 20% of the season, compared to suspending Oliver for the 2008 postseason and 70% of the 2009 season (reduced from one year).

Wetzler Singled Out:
Most of the 316 unsigned drafted players in 2013 probably had advisors who had at least some direct contact with the club, yet Wetzler was singled out by the NCAA simply because the Phillies decided to report the contact with the NCAA.
Why would the Phillies attempt to have a player suspended? They may want future players they draft to fear using an agent to create an unfair advantage in the negotiations. In other words, they may want to exploit the bizarre NCAA rule for their own advantage, figuring it will save them lots of money and that they will be able to sign more players without agents correcting any misinformation or incomplete information provided by the team. This will certainly create a backlash. For example, agents may encourage players not to fill out any draft questionnaires for the Phillies or to submit to any predraft meetings with them, which could prevent the Phillies from being able to accurately access players’ signability.

Wetzler’s Potential Claims Against Phillies:
If Wetzler wanted to sue the Phillies, he could potentially asset an extortion claim although few states allow a civil claim for extortion. If the Phillies during negotiations told Wetzler or his advisor that if Wetzler did not sign, the Phillies would report him to the NCAA, this could constitute extortion. Neither Pennsylvania (where Phillies located) nor Oregon (where Wetzler resides) recognize a civil claim for extortion.

Even in a state that does recognize such a claim, it may be difficult to meet the definition. In California for example, a player could allege attempted extortion under Penal Code Section 524, which provides in part, that a person may not attempt to obtain money or property by means of a threat, including to do an unlawful injury to the person or property of the individual threatened or of a third person; accuse the individual threatened, or a relative or family member of his of a crime; or to expose or impute to him a deformity, disgrace or crime; or to expose a secret affecting him. The Phillies were trying to obtain Wetzler’s signature on a contract and trying to obtain his services. First, Wetzler would have to successfully argue that by attempting to obtain his personal services, this satisfies the “money or property” portion of the statute. Second, Wetzler would have to satisfy the threat portion of the statute. His strongest argument would be the communication his advisor had with the Phillies constitutes a “secret” under the statute. He could also argue that the Phillies were threatening to expose or impute to him a disgrace, but it is hardly disgraceful to seek protection from legal counsel.

Wetzler’s strongest claim would be intentional interference with his contractual relations with Oregon State. In Oregon, in addition to proving that the defendant intentionally interfered with the plaintiff’s contractual relationship, the plaintiff must also demonstrate “either the pursuit of an improper objective of harming plaintiff or the use of wrongful means that in fact cause injury to plaintiff’s contractual or business relationship.” [2]. In Pennsylvania, in addition to proving that the defendant interfered with the plaintiff’s contractual relationship, the plaintiff must prove “the absence of privilege or justification on the part of the defendant.” [3]. The Oregon and Pennsylvania courts would be guided by Section 767 of the Restatement (Second) of Torts, which provides the following factors for consideration: 1) the nature of the actor’s conduct; 2) the actor’s motive; 3) the interests of the other with which the actor’s conduct interferes; 4) the interests sought to be advanced by the actor; 5) the proximity or remoteness of the actor’s conduct to interference, and 6) the relationship between the parties.
Thus, the Oregon and Pennsylvania courts would be faced with a policy question of whether the Phillies’ conduct was wrongful. The Phillies would argue that they were reporting a violation of a rule while Wetzler would argue that the rule is against public policy and that the Phillies did not report the alleged violation for the public good but did so to discourage players from having legal representation so that the Phillies can exploit them. Most courts would likely agree with the Oliver court that the NCAA rule is against public policy and find that the Phillies were acting wrongfully by reporting the violation, particularly given that Wetzler would likely be able to produce evidence that the Phillies have initiated contact and engaged in communications with agents of drafted players for years without ever reporting any such contact.

In California, “[b]ecause interference with an existing contract receives greater solicitude than does interference with prospective economic advantage, it is not necessary that the defendant’s conduct be wrongful apart from the interference with the contract itself.” [4]. Thus, the Phillies would have to rely on an unclean hands defense. “The doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy.”[5]. “Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine.” [5]. “The issue is not that the plaintiff’s hands are dirty, but rather that the manner of dirtying renders inequitable the assertion of such rights against the defendant. The misconduct must prejudicially affect the rights of the person against whom the relief is sought so that it would be inequitable to grant such relief.” [5]. Thus, the Phillies would argue that Wetzler violated an NCAA Rule by having an agent participate in negotiations and that this gave him an unfair advantage in the negotiations. It is doubtful that a court would find that seeking assistance from an agent to protect oneself constitutes misconduct. Moreover, it is likely Wetzler would be able to produce evidence that the Phillies have repeatedly engaged in communications with representatives of drafted players for a long period of time and have even initiated such communication. Thus, an unclean hands defense would likely fail.

Because Wetzler will not be able to prove damages, he will probably not sue the Phillies. In the future, however, if a club reports a violation and the suspension does cause the player harm, such as if the suspension comes late in the season when clubs are sending out top officials to evaluate players and the player ends up being drafted lower than projected, the player will be much more likely to sue and these issues will be analyzed by a court. If the player is a California resident or if the club is California-based, the player may benefit from suing in California where he has a potential civil extortion claim and would not have to prove that the club engaged in wrongful conduct other than the interference itself.

[1] NCAA Bylaw 12.3.1.
[2] Glubka v. Long, 115 Or. App. 236, 239, 837 P.2d 553, 555 (1992)
[3] Strickland v. Univ. of Scranton, 700 A.2d 979, 985 (Pa. Super. Ct. 1997)
[4] Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 55 (1998).
[5] Kendall-Jackson Winery, Ltd., v. Superior Court (1999) 76 Cal.App.4th 970, 978-979.

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