Tuesday, November 15, 2011

Proposed NCAA legislation won’t completely close the Cam Newton Loophole

image The NCAA has released the package of legislation proposed for consideration at the January and April 2012 NCAA Division I Legislative Council and NCAA Division I Board of Directors meetings. If you’re up for it, you can read each proposal here.

The proposed legislation includes amendments to or creation of by-laws governing organization and governance, personnel definitions, amateurism rules, recruiting rules, eligibility matters, financial aid, awards, benefits and expenses, playing and practice seasons, various NCAA committees and regulations governing executives.

Also included in the proposed changes is Proposal No. 2011-23, AMATEURISM – DEFINITIONS AND APPLICATIONS – AGENT. From the proposal text itself:


Intent: To specify that an agent is any individual who, directly or indirectly, represents or attempts to represent an individual for the purpose of marketing his or her athletics ability or reputation for financial gain, or seeks to obtain any type of financial gain or benefit from securing a prospective student-athlete's enrollment at an educational institution or from a student-athlete's potential earnings as a professional athlete.

Bylaws: Amend 12.02, as follows:
12.02 DEFINITIONS AND APPLICATIONS
12.02.1 Agent
. An agent is any individual who, directly or indirectly:
(a) Represents or attempts to represent an individual for the purpose of marketing his or her athletics ability or reputation for financial gain; or
(b) Seeks to obtain any type of financial gain or benefit from securing a prospective student-athlete's enrollment at an educational institution or from a student-athlete's potential earnings as a professional athlete.
12.02.1.1 Application. An agent may include, but is not limited to, a certified contract advisor, financial advisor, marketing representative, brand manager or anyone who is employed or associated with such persons.

Rationale: As the salaries of professional athletes have risen, age restrictions to participate in professional sports leagues have changed and the notoriety of elite student-athletes has increased with scouting and media exposure, the interest of outside third parties in elite athletes is now greater than ever. As a result, an industry of individuals has been created, including runners, financial advisors, marketing representatives, business managers, brand managers and street agents who seek to broker elite athletes for financial gain. Although governing bodies have attempted to impose regulations on these individuals and their activities, the competitive nature of the industry has resulted in many finding ways to circumvent the rules. One constant is the use of outside third parties. These third parties typically operate free of any governing body's jurisdiction. In order to regulate the interaction of these individuals with prospective student-athletes and student-athletes, the definition of an agent must be broadened. This proposal is not intended to include parents or legal guardians, athletics department staff members, former teammates or those individuals who have the best interest of a prospective student-athlete or student-athlete in mind in providing assistance or information, provided they do not intend to receive a financial gain for their assistance. [emphasis added]


This is an expansive proposal, as it is also targeted at the rampant abuse found in college basketball recruiting. But in my view, it only represents one step in the right direction. On the positive side, it identifies the people and defines the activities that need to be prohibited. From the rationale accompanying the proposed amendment, explaining that it would include family members seeking financial gain lassos parents with their hands out.

But on the negative side, it doesn’t go far enough in defining what penalties should apply or how certain circumstances might affect a student-athlete’s eligibility. While the proposed legislation would close the loophole used by Auburn to argue for—and get—Cam Newton’s eligibility restored, it doesn’t address the specifics in the case.

As we all know, Cecil Newton admitted that he participated in a scheme to solicit payment in return for his son’s services. The new legislation would have defined the elder Newton as an agent. But there was never any proof that Cam knew of his father’s scheme, allowing him to escape any impact on his eligibility. The proposed legislation doesn’t address this.

The legislation also fails to address another specific in the Newton case—while the elder Newton copped to shopping Cam to Mississippi State, there was also a lack of evidence showing that he was also shopping at Auburn.

Functionally, if the proposed legislation passes as written, all it does is provide a means for identifying the next Cecil Newton as an agent. What it doesn’t do is establish whether the student-athlete’s eligibility is affected, what penalties should apply, whether the student-athlete’s awareness of having an agent comes into play or whether school where the student-athlete finally lands should suffer any consequences.

While the proposal is a good first step and should be adopted, it should have been much more specific. As a result, the Cam Newton Loophole will be only partially closed.

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