Tuesday, November 18, 2008

Agent or Advisor: The Andy Oliver Dilemma

The Andy Oliver affair is a tragic account of a talented young athlete who was forced to suffer because the actions of one greedy agent, who believes he has a stake in the stars success.  On the other hand, the Oliver case highlights the thin line between agent and adviser, and will help distinguish between the two for future reference.

Andrew Oliver is a talented young pitcher who currently attends Oklahoma State University.  The facts of the case start when the Minnesota Twins drafted Andy after his senior year of high school.  At that time, Andy spoke with and was advised by Robert and Tim Baratta on whether to accept the offer from the Twins or attend college and play, where his stock could go up.  With the Barattas’ brother’s advice, Andy decided to attend OSU on an athletic scholarship.

Under section 12.3.4 of the NCAA Bylaws, it explicitly allows for adviser panels to exist. Importantly, it states that an adviser can review a proposed professional contract, help in securing tryouts with teams, and assist a student-athlete with the selection of an agent.  The purpose of allowing an “adviser” relationship to exist is to allow the student athlete to stay eligible as a collegiate athlete if they are considering going professional or if their contract does not work out.

Oliver went on to be a dominant pitcher at OSU, earning first team All-Big 12 honors his first season.  He helped the Cowboys receive a national top 25 ranking and a spot in the College World Series.

All was grand for Oliver until he decided to drop the Baratta brothers his sophomore season for legendary baseball super agent, Scott Boras.  Most baseball managers despise or are afraid of Mr. Boras because of his intimidating list of talented clients and the extremely hefty contracts he negotiates for them.  As soon as Boras was declared Andy’s official agent, the Barattas’ then mailed the Oliver’s a bill for over $100,000 for their previous services. The Oliver’s disputed the bill, claiming they had only agreed to pay the Barattas' a percentage of a future professional contract, something which Andy still has not received.

After the Oliver’s disputed, Robert Baratta wrote a letter to the NCAA, alleging Oliver had committed NCAA violations.  Claiming that he had paid them, and that they acted as his official agent. Baratta also claimed that Boras had offered Oliver inappropriate benefits, including pitching lessons and equipment. Oliver denies all of the allegations against him, and stated that he only used the Baratta brothers as advisers.

This was a rather slimy move by Robert.  Bringing an issue to the attention of the NCAA regarding a high power agent like Boras might require immediate attention, rather than allowing the complaint to go through the NCAA’s judicial process.

The letters sparked a joint investigation by the NCAA and Oklahoma State on Oliver and his communication with his adviser/agent, Robert Baratta (nothing of Boras was mentioned in the NCAA report).  This ultimately led to Andy’s suspension from NCAA athletics.  On May 31st, when Andy was to be pitching against Wichita State in hopes of advancing to the next round of the CWS, the NCAA declared him ineligible.  This not only disappointed Andy and his family, but his coaches and team were upset and disappointed that the NCAA took their ace pitcher during the most important part of the college baseball season.

After his suspension for violating the NCAA “no agent” policy, Oliver filed a legal malpractice suit against the Barattas’ for their original intervention.  However, the boldest decision by the Oliver’s came when they decided to file a suit against OSU and the NCAA amongst others, regarding the suspension and ultimate end of Andy’s season during that crucial time.

Andy and his attorney, Richard G. Johnson, refiled their complaint against the NCAA several times now and eventually got a temporary restraining order (TRO) issued against the NCAA.  This means that the NCAA immediately reinstated Andy Oliver’s collegiate eligibility, allowing him to participate this pre-season and season until his case is finally decided.

The trial of Oliver v. NCAA is set to be heard December 8th, 2008.  Andy recently took another small step in his battle, as the court dismissed the defendant’s request for the trial to be heard by a judge and not a jury.  The main issue in this case is if Oliver broke NCAA regulations by obtaining the Barattas’ as an agent.  Andy’s other argument is that he was denied due process when he was suspended from the team during the end of the season on these allegations alone.

I happen to agree with Andy’s argument.  In the NFL and other professional sports, athletes are not punished for their actions until they are convicted of the wrongdoing.  A recent example of this is Matt Jones.  The Jacksonville Jaguars receiver was charged with possession of cocaine this summer in Arkansas and is yet to miss an NFL game this year. NFL commissioner Roger Goodell waited for his trial to finish before instituting a suspension to Jones on that particular offense.

Allegations or investigations alone should not prohibit an athlete from participating.  If that were the case, agents or even other competitors who want to get back at athletes could send the NCAA letters and get those players banned. On that logic, this could be a simple case of a jealous agent trying to get back at a client who has left him for other representation. Imagine the chaos that regulation would cause in collegiate athletics.  Back ups athletes could write letters to the NCAA with fictional allegations about the athletes in front of them on the roster in order to get a starting spot.

The underlying facts show that not all agents are self-absorbed, bad people with horns, who only look out for their own skin.  Many in fact, are the opposite; specifically ones who act as advisers first and then become agents.  Advisers get no finances until fruition of a contract and can do a lot of research without pay.  In Andy’s situation, the details are unclear regarding what the Baratta brothers actually did for Andy and if those actions crossed the line from adviser to agent.  Maybe the Baratta brother’s aren’t the bad guys they are portrayed to be?  An agent does deserve his fair share when he represents a client. This is what the court will have to decide when looking at Andy’s many complaints.

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