Corking The Cam Newton Loophole, A Sweeping Suggestion

I am happy to announce that the article I co-authored with Jeffrey F. Levine titled, “Corking the Cam Newton Loophole, a Sweeping Suggestion,” has been published in Volume 2, Number 2 of the Harvard Journal of Sports & Entertainment Law.  Jeff and I wrote the article after Auburn Tigers’ All-American quarterback Cam Newton was accused of being involved in some sort of “pay to play” scheme, which potentially opened up universities to a bidding war for the quarterback’s services.  The accusations became public in November 2010, not long before the National Championship Game.  Here is a little more background from our published article:

As the facts began to unfold, it became clear that Newton’s father was responsible for the “pay-to-play” demands placed on potential schools in exchange for his son’s services.   The younger Newton had let his father decide where he would play, and the elder Newton allegedly used this opportunity to indirectly contact potential schools to solicit six-figure payoffs to steer his son toward that institution.  Although Mississippi State was the only confirmed school  that Newton propositioned with the “pay-to-play” demand, speculation abounded whether other schools received the same, or a similar, request.

Many people were disappointed that Cam Newton was able to participate in the National Championship Game and that he has not been penalized in any way by the NCAA.  Taking the opposite stance, Jeff and I applaud the NCAA for not taking any rash action against Newton.  And here is the latter half of the conclusion to our article:

It is vital that the “Cam Newton Loophole” be closed through revising applicable statutes and NCAA bylaws to better encompass the increasing number of hypothetical violations that might occur.  The proposed amendments, however, should not change the outcome for players who do not purposefully work with third parties (even fathers) in furtherance of receiving  impermissible benefits.  Federal law should step in to regulate family members, but not the athlete, who act for the purpose of obtaining an impermissible benefit.

It is inequitable to permit a loophole that allows a student-athlete to deflect any discipline by placing the  blame on a third party despite the student-athlete’s intent to profit.  However, the current bylaws as written do not allow the NCAA to levy a tangible punishment upon any actor other than the athlete or university.  The NCAA’s focus should be on punishing the educational institution for engaging in any “pay to play” scheme, but without proving the athlete’s purpose, the NCAA bylaws should not punish the student-athlete for the actions of third parties.

Punishing student-athletes for the  wrongdoings of parents and agents will not eliminate the practice of family members seeking benefits.  Beyond actions taken by the NCAA against its member institutions, parents and agents need to be held accountable for their actions, and the federal government should be tasked with the duty to include provisions within their laws to accommodate for this scenario.

Click here to read the entire article in the Harvard Journal of Sports & Entertainment Law

By Darren Heitner

Darren Heitner created Sports Agent Blog as a New Year's Resolution on December 31, 2005. Originally titled, "I Want To Be A Sports Agent," the website was founded with the intention of causing Heitner to learn more about the profession that he wanted to join, meet reputable individuals in the space and force himself to stay on top of the latest news and trends.

Heitner now runs Heitner Legal, P.L.L.C., which is a law firm with many practice areas, including sports law and contract law. Heitner has represented numerous athletes and sports agents as legal counsel. He has also served as an Adjunct Professor at Indiana University Bloomington from 2011-2014, where he created and taught a course titled, Sport Agency Management, which included subjects ranging from NCAA regulations to athlete agent certification and the rules governing the profession. Heitner serves as an Adjunct Professor at the University of Florida Levin College of Law, where he teaches a Sports Law class that includes case law surrounding athlete agents and the NCAA rules.