NCAA Bylaw 12.3.2.1 Is Void

Post author By Darren Heitner
Post date May 13, 2009
3 Comments on NCAA Bylaw 12.3.2.1 Is Void

The most important part of the Opinion and Judgment Entry released by Judge Tygh M. Tone in the Common Pleas Court of Erie County, Ohio for the case of Andrew A. Oliver vs. National Collegiate Athletic Association, et al, dealt with the voiding of NCAA Bylaw 12.3.2.1.

12.3.2.1 Presence of a Lawyer at Negotiations. A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the individual. A lawyer’s presence during such discussions is considered representation by an agent.

Voiding that Bylaw would mean that at a minimum, a lawyer could be present during discussions of a contract offer and may have direct contact with the organization. However, the NCAA continued to enforce the Bylaw in lieu of abiding by Judge Tone’s Opinion and Judgement Entry. That is all about to change.

A vacated order from May 6 includes this passage from Judge Tone:

“In regards to the February 12, 2009 Opinion and Judgment Entry, the Court determined that Bylaw 12.3.2.1 is void and granted Plaintiff’s request for declaratory judgment and injunctive relief. Contrary to Defendant’s rhetoric, the February entry did not presume to void an NCAA rule, it did void an NCAA rule. See, p.5 of Defendant’s Opposition. In that respect, discussions of how to proceed without Bylaw 12.3.2.1 should be discussed by the NCAA and its member institutions. Make no mistake, however, that wherever the NCAA is located, the ruling of this Court should be currently maintained and Bylaw 12.3.2.1 is void, not presumed void, until and unless an appellate review would determine otherwise.”

Judge Tone is pretty clear in his statement. And in case you think the NCAA has reason to believe that this order cannot be applied nationwide, the attorney for Andy Oliver says otherwise:

Also, reporters have asked me how an Ohio court’s order could have any effect outside of Ohio, and the answer is that the court has personal jurisdiction over the NCAA, which is an Ohio citizen, and thus the order applies to the NCAA wherever it may be or go. The analogy would be a court granting a protective order to a wife, the husband follows her out-of-state and violates the protective order, and the court punishes the husband upon motion, because the order applied to the person–not to the location, as long as the court has jurisdiction over the person. I hope that makes sense.

Makes sense to me.

Tags andy oliver, NCAA

By Darren Heitner

Darren Adam Heitner, Esq., is a preeminent sports attorney and the founder of Heitner Legal, P.L.L.C., a Fort Lauderdale-based law firm specializing in sports law, contract negotiations, intellectual property, and arbitration. He earned his Juris Doctor from the University of Florida Levin College of Law in 2010 and a Bachelor of Arts in Political Science, magna cum laude, from the University of Florida in 2007, where he was named Valedictorian of the College of Liberal Arts and Sciences. Admitted to practice in the state bars of Florida, New York, and the District of Columbia, as well as multiple federal courts, Darren also serves as a certified arbitrator with the American Arbitration Association.

As an adjunct professor, Darren imparts his expertise through teaching Sports Law at the University of Florida Levin College of Law and Name, Image, and Likeness (NIL) at the University of Miami School of Law in the Entertainment, Arts, and Sports Law LL.M. program. His scholarly contributions include authoring several books published by the American Bar Association, such as How to Play the Game: What Every Sports Attorney Needs to Know, and numerous articles in prominent publications like Forbes, Inc. Magazine, and Above the Law. His thought leadership in NIL has earned him recognition as one of the foremost experts by The Wall Street Journal, USA TODAY, and On3, and he has been lauded as a “power player in NIL deals” by Action Network and a “top sports trademark attorney” by Sportico.

Darren’s passion for sports law led him to establish Sports Agent Blog on December 31, 2005, initially titled “I Want To Be A Sports Agent.” The platform, created as a New Year’s resolution, has grown into a cornerstone of the sports agency community, offering in-depth analysis of industry trends, legal disputes, and agent-player dynamics. His commitment to the field is further evidenced by his representation of numerous athletes and sports agents, as well as his prior role as an Adjunct Professor at Indiana University Bloomington, where he developed and taught a course on Sport Agency Management from 2011 to 2014.

Darren’s contributions have been recognized with prestigious honors, including the University of Florida’s 40 Under 40 Award, the University of Florida Levin College of Law’s Outstanding Young Alumnus Award, and designation as the best lawyer in Fort Lauderdale by Fort Lauderdale Magazine. He remains an active voice in the sports law community, sharing insights through his weekly NIL newsletter and his X posts, engaging a broad audience on legal developments in sports.

View Archive

3 replies on “NCAA Bylaw 12.3.2.1 Is Void”

Wow.

http://www.twitter.com/bryanswalley

[…] The judge in the Andrew Oliver case clarifies his ruling, absolutely, positively voiding the rule that prevents students from being represented by an agent. We get the added bonus of Oliver’s lawyer comparing the NCAA to a stalker: Also, reporters have asked me how an Ohio court’s order could have any effect outside of Ohio, and the answer is that the court has personal jurisdiction over the NCAA, which is an Ohio citizen, and thus the order applies to the NCAA wherever it may be or go. The analogy would be a court granting a protective order to a wife, the husband follows her out-of-state and violates the protective order, and the court punishes the husband upon motion, because the order applied to the person–not to the location, as long as the court has jurisdiction over the person. I hope that makes sense. […]

Judge Tone’s very tone in the order is somewhat intriguing… The NCAA response has a point, the Judge changed his mind on the contempt issue (http://www.sportsbusinessdaily.com/article/130152).
Barring a settlement, which is not out of the question considering recent NCAA litigation mgmt strategy, such decisions presumably have limited chances on the appellate levels.

Deferring to SLA meetings and discussions in Chi on this and the Keller (v EA/NCAA/CLC — IP/RoP & VGs) case if there, and for trackbacks on commentary and related decisions which where reversed peruse:

http://collegesportsblog.wordpress.com/2009/02/14/what-is-wrong-with-ohio-courts-first-o%E2%80%99brien-now-this%E2%80%A6/

http://nationalsportsandentertainment.wordpress.com/2009/02/14/what-is-wrong-with-ohio-courts-by-tassos-kaburakis/#comments

and commentary from SAB and others:

http://www.athleticmanagement.com/2009/02/in_posting_an_133_record.html?userid=

http://sportsagentblog.com/2009/02/13/round-1-goes-to-andy-oliver/

http://sportsagentblog.com/2009/02/16/a-provocative-response-to-the-andy-oliver-ruling/

http://ctsportslaw.com/2009/02/25/oliver-v-ncaa-court-throws-out-ncaa-baseball-lawyer-agent-rule/

Links to the case:

http://www.scribd.com/doc/12309586/Oliver-v-NCAA-Opinion-JE6

http://sports-law.blogspot.com/2009/02/court-blows-fastball-down-ncaa-pipe.html

http://sportsillustrated.cnn.com/2009/baseball/more/02/12/ncaa.lawsuit.ap/index.html?eref=si_more

http://sports.espn.go.com/ncaa/news/story?id=39033