The Andy Oliver Affair

On June 2, I wrote a post about a left-handed pitcher named Andy Oliver who had been restricted from helping his Oklahoma State University team advance in the NCAA tournament with the hope of playing in the College World Series.  At that point, I was merely pondering about what could have occurred to make the NCAA or at least Andy’s team prevent the young gun from providing some needed pitching for the Pokes.  I wondered if it was all based on payback from an agent for not receiving money that he thought he deserved based on a history of “advising” Andy up to his current position.

On June 1, I received an email from a source who wished to remain anonymous concerning the Andy Oliver affair (previously unpublished):

Andy Oliver‘s family had an agent (Rob Martin-Icon Sports) advising them while Andy was in high school leading up to the point he was drafted. His family recently started getting advice from a different agent (Boras) and it ticked the first group off because it became apparent they would not get his signature on a dotted line after his junior year(next year). The first agent firm decided to get even and billed the Oliver‘s $90,000 for 300 plus hours of advice. The family told them to shove it because advice is free and that is how all agents get business. In this case the agent firm decided to get real scummy and turned in an allegation to the NCAA in which they alleged Andy accepted small items of value from them.

I could not get another couple of sources to back up this information, so I let it go until the night of June 2, when I published the story referenced in the beginning of this post.  I was concerned about the accuracy of the names and amounts listed.  My anonymous source followed up with me and gave me this information:

It looks like the entire story is true except that Rob Martin and his agency was falsely accused of being the agent in question.  Looks like Martin had nothing to do with it, but what happened to Oliver in regards to an agent was absolutely true.

My telephone conversation with Robert Barrata, former advisor of Andy Oliver, corroborated this information.  I was told that Rob Martin and Icon Sports had nothing to do with the situation, so I left it out of my story: Let Andy Play.  The only other discrepancy was the $90,000 mentioned by my inside source.  It appears that Barrata is trying to recoup $113,000 instead.

The latest development in the ongoing saga is that Andy Oliver and his team of attorneys have filed a Complaint against Robert Barrata, his brother, the Barrata Partners company, Rob Martin, Brian Goldberg, Icon Sports, and the NCAA.  Quite a list.  Since then, many publications have decided to cover the pending lawsuit, including SBJ and Sports Law Blog, while I remained on the outside, taking notes.  I believe that is now time to tackle the growth of the Andy Oliver Affair.

Here is the juice of Liz Mullen’s SBJ article,

The lawsuit alleges breach of contract and tortious interference with Oliver’s contract with OSU by the NCAA. The lawsuit alleges the NCAA never gave Oliver due process before suspending him; failed to take into account Oliver’s defenses to charges never presented to him; failed to complete its investigation before suspending him; and used Oliver’s attorney-client privileged information, that was illegally obtained, against him. The lawsuit also alleges breach of contract, constructive fraud, negligence and defamation against Oliver’s former advisors — Baratta and his partner and brother Tim Baratta — and their company, Baratta Partners.

Interesting that Rob Martin, Brian Goldberg, and Icon Sports continue to go unmentioned by the media in this whole dilemma.  Is the lawsuit frivolous?  Should we be expecting a counterclaim by the Defendants (at least the Baratta brothers)?

Here are the sections of the Complaint that I find to be interesting:

13. Sometime in late January or early Februrary 2006, the Plaintiff [Oliver] terminated Sosnick Cobbe Sports as his sports advisors, and he then retained the Defendants RMB, TB & Icon Sports as his sports advisors and attorneys.

It probably won’t play in the actual case, but there seems to be a consistency in switching advisors going on in the Oliver household.  To go through three different companies before even signing with an MLB organization makes me wonder a little bit about Andy’s allegiances.  Matt Sosnick seems like a good guy.  I wonder why the switch from him to Icon Sports/Baratta in the first place.

21. At that initial meeting, the Defendants RMB [Robert Baratta] & TB [Robert’s brother]…told the Plaintiff and his father that they would charge three (3%) of any baseball contract entered into by the Plaintiff, and twenty-five (25%) of any endorsement contact entered into by the Plaintiff.

Sure, no legal contract existed based on the Ohio Statute of Frauds, which requires such a statement to be in writing, even though NCAA rules does not allow such an arrangement.  Sounds like a Catch-22, right?  Sure is!  In addition, 3% seems low and 25% seems high.  I always advise potential clients to be wary when they hear a baseball agent/advisor offering his services for less than 5%: the industry standard.  I believe that when you pay less than the norm, you should expect less than the norm in return.  Additionally, 25% is on the higher end when it comes to endorsement commissions.

22. Thereafter in 2006, the Defendants RMB, TB & Icon Sports did nothing for the Plaintiff over the next several months other than providing him information they had prepared for themselves, drafting a letter for the Plaintiff’s father to send to Sosnick Cobbe Sports, checking in by telephone…

Wait…rewind for a second.  Drafting a letter for the Plaintiff’s father to send to Sosnick Cobbe Sports?  The Barattas have charged that Boras violated NCAA rules by drafting a letter on Andy’s behalf because it was a material benefit.  If that is the case, then wouldn’t the Barattas have provided the same material benefit to Andy when they sent a letter to Sosnick Cobbe Sports terminating Oliver’s relationship with the company?

28. …At no time up until they were terminated did the Defendants RMB, TB, B&B & Icon Sports send the Plaintiff an invoice for any claimed services performed for the simple fact that no services of any value were ever performed at any time.

It is obviously debatable whether any services of value were ever performed, but isn’t it quite odd that no invoices were sent to the Oliver family until the Barattas were dismissed?  Maybe it is proper procedure for the Barattas, but it seems a little odd.  Invoices did not have to be sent to the family every month, but one would think that at least once during the advisor/athlete relationship a request for payment would be made.

39.  However, nowhere in the Defendant NCAA’s bylaws, regulations, or rules on amateurism do they require such payments to be made sports advisors, and the aforementioned October 2, 2007 Memo is both not a correct statement of its bylaws, regulations, or rules, as well as not a part of the Plaintiff’s contract with OSU or the Defendant NCAA, because the same was never given to him, and he never signed or agreed to be bound by the same.

Yeah…that could be the dealbreaker (notice the red type).  If Andy was never given the October 2, 2007 Memorandum from the NCAA, then how could he be bound by it?  Baratta believes that a clause within the memo guarantees the right to receive payment for being Andy’s advisor, but the end of the document has a signature line.  If Andy did not sign the form, let alone ever see it and remain in possession of it, then Baratta may be out of luck.

There is also a mention of breaching attorney-client privilege…but I am not sure if that will hold up.  Now onto the NCAA attacks…

The main beef that Andy’s attorneys have with the NCAA is the lack of procedural due process in the whole affair.  Andy was suspended before a full investigation, had no immediate right to appeal, and thus was held out of competing with his team for a chance to reach the College World Series.

Additionally, Andy’s attorneys assume, based on communications with OSU, that the NCAA was using apparent violations from when he was deciding whether to sign with Minnesota or enroll in college.

It is not my job to make predictions; it is only my intention to state the facts and lend my opinions on the matter.  Personally, I believe that this will all be settled, as most cases tend to be, prior to any sort of formal judgment.  There are some powerful and interesting claims made by Andy’s attorneys against the NCAA, but one must always look at the parties before getting too excited.  The NCAA is GIGANTIC.  It will take a lot more than Andy Oliver to bring that body down a notch.  As for Baratta, who knows.  There are plenty of counts where Andy’s team asks for over $25,000 a pop.

Some final notes:

• Oliver’s attorney, Richard Johnson, tells me that they will be filing an amended Complaint to add OSU as a Defendant in addition to the previously named parties.
• The first item of business for Oliver and his attorneys is to get him reinstated and eligible to participate in intercollegiate athletics before the beginning of Andy’s Junior season.

I leave you with my favorite part of the Complaint.  It comes from a part of Icon Sports Management’s home page that was advertised to potential clients.  I have highlighted the icing on the cookie cake in red.  Enjoy.