KINGDOM WORKS SPORTS

AGENCY AND DEBORAH L.

CRAIN PRESENTS: SPORTS

AGENCY- PROCESS TO PLAYER

NBA, WNBA, AND FIBA AGENT; ATTORNEY AT LAW

THE BASIC REQUIREMENTS OF THE NBA• 4 YEARS OF COLLEGE OR EQUIVALENT NEGOTIATING EXPERIENCE

• APPLICANT HAS TO LIST OUT THEIR NEGOTIATING EXPERIENCE THAT COULD BE THE EQUIVALENT AND COMMITTEE DECIDES

• THEY LOOK AT YOUR EMPLOYMENT HISTORY FOR THE LAST TEN YEARS

• MORAL FITNESS IS ESSENTIAL TO BEING AN AGENT – NOT ONLY FOR NBA BUT ALSO STATE REQUIREMENT AND COLLEGE REQUIREMENT

• THEY WANT TO KNOW IF YOU HAVE EVER BEEN SUED – EVEN IF THERE IS NO JUDGMENT AGAINST YOU – YOU STILL HAVE TO LIST OUT ANYTHING THAT MIGHT BE RELEVANT IN DETERMINING MORAL FITNESS INCLUDING TRAFFIC TICKETS

• NO CURRENT “TEST” TO BECOME AN AGENT BUT THIS TOPIC IS CURRENTLY BEING DISCUSSED AND MAY BE IMPLEMENTED SIMILAR TO WHAT THE NFL REQUIRES

SERVICES TO PLAYERS

• THE “OTHER SERVICES” BEING PROVIDED IS SOMETHING THAT THE NBA IS CONCERNED WITH AS IT RAISES A POTENTIAL THREAT TO PLAYERS (FINANCIAL PLANNING, INVESTMENT COUNSELING ESTATE PLANNING, TAX PLANNING, LEGAL ADVICE)

• ATTORNEYS SHOULD UNDERSTAND THAT YOU LITERALLY HAVE TO STEP OUT OF YOUR ROLE AS AN ATTORNEY TO BE AN AGENT. IF YOU DO PROVIDE LEGAL SERVICES, ENTER INTO A SEPARATE FEE AGREEMENT AND SUBMIT ALL CONTRACTS TO THE NBA

• SOME AGENTS WORK BOTH AS AGENTS AND FINANCIAL ADVISORS AND ANY TIME YOU ARE TRULY “MANAGING” THE PLAYERS’ FINANCES THERE IS A RISK OF HARM

INSTANCES OF OTHER SERVICES IN THE MEDIA• EXAMPLE: TIM DUNCAN SUED PRIOR FINANCIAL ADVISOR CHARLES BANKS AND ALLEGED THAT

HE STOLE 20 MILLION DOLLARS FROM HIM. TIM DUNCAN WAS GOING THROUGH HIS DIVORCE AND HIS FINANCIALS WERE AUDITED. HE CLAIMS HE DISCOVERED THE THEFT AT THAT TIME

• BANKS HAS DENIED THE ALLEGATIONS, STATING THAT MR. DUNCAN IS USING THE SUIT AS LEVERAGE TO GET OUT OF SOME INVESTMENTS. NO RULING ON THE MATTER AT THIS TIME.

• HTTP://PROBASKETBALLTALK.NBCSPORTS.COM/2015/06/18/TIM-DUNCAN-SAYS-HE-LOST-MORE-THAN-20-MILLION-ALLEGEDLY-STOLEN-BY-FINANCIAL-ADVISOR/

• BOTTOM LINE – IF YOU ARE GOING TO PROVIDE “OTHER SERVICES”, MAKE SURE YOU KEEP GOOD RECORDS – DETAILED ACCOUNTING AND PROVIDE THAT TO THE PLAYER AND THE NBA IN THE ANNUAL REPORTING EVERY YEAR

ANNUAL REPORTING• PROVIDE ON OR BEFORE MARCH 1, 1990, AND ON OR BEFORE MARCH 1 OF EACH SUCCEEDING

YEAR, TO EACH PLAYER WHO HE REPRESENTS, WITH A COPY TO THE ASSOCIATION, AN ITEMIZED STATEMENT COVERING THE PERIOD JANUARY 1 THROUGH DECEMBER 31 OF THE IMMEDIATELY PRIOR YEAR WHICH SEPARATELY SETS FORTH BOTH THE FEE CHARGED TO THE PLAYER FOR, AND ANY EXPENSES INCURRED INCONNECTION WITH THE PERFORMANCE OF, THE FOLLOWING SERVICES: (A) INDIVIDUAL PLAYER SALARY NEGOTIATIONS, AND/OR GRIEVANCE ARBITRATION, (B) THE MANAGEMENT OF THE PLAYER’S ASSETS, (C) THE PROVISION TO THE PLAYER OF FINANCIAL, INVESTMENT, LEGAL, TAX AND/OR OTHER ADVICE, AND(D) ANY OTHER MISCELLANEOUS SERVICES;

• MAKE SURE THAT YOU ARE CAREFUL ABOUT WHO YOU ARE REFERRING PLAYERS TO – IF YOU REFER A PLAYER TO A FINANCIAL ADVISOR AND YOU SPLIT THE FEE WITH THAT PERSON, WILL YOU ALSO BE RESPONSIBLE IF THAT PERSON STEALS FROM THE PLAYER?

AGENT DUES• APPLICATION FEE $100, AGENT DUES ARE CURRENTLY SET AT $1,500 PER YEAR

• IT IS IMPORTANT TO UNDERSTAND THAT THIS IS NOT YOUR ONLY YEARLY COST FOR RELATED DUES TO MAINTAIN YOUR AGENT STATUS

• IN FEBRUARY, 2016, THE NBPA WILL MEET TO DISCUSS A POSSIBLE INCREASE OF ANNUAL DUES FOR PLAYERS WITH 0-9 PLAYERS: $5,000.00, 10-19 PLAYERS $10,000.00, AND AGENTS WITH 20 OR MORE PLAYERS $15,000.00

• AGENTS OPPOSED THE SEVERITY OF THE INCREASE AND ARE HOPING THAT A LESSER INCREASE WILL BE IMPLEMENTED

RULES ON CERTIFICATION AND STANDARD FORM FEE AGREEMENT• ATTORNEY HAS A LONG TIME FAMILY FRIEND THAT IS SET TO BE ONE AND

DONE AT KENTUCKY. THE FAMILY ENJOYS CHRISTMAS TOGETHER FROM TIME TO TIME AND THEY EXCHANGE CHRISTMAS GIFTS. THE PLAYER IS A TOP FIVE RECRUIT AND THE ATTORNEY HAS THE PLAYER SIGN A CONTRACT DURING HIS ELIGIBILITY THAT WHEN THE PLAYER IS FINISHED HIS ELIGIBILITY OR DECLARES FOR THE DRAFT HE WILL ONLY USE HIS SERVICES FOR HIS NBA CONTRACT. AS A TOKEN OF GOOD WILL, THE ATTORNEY GIVES THE PLAYER’S MOM A JOB IN HIS OFFICE AS SHE HAS BEEN UNEMPLOYED FOR THE LAST FEW YEARS.

• CAN HE DO THIS?

• WHAT POSSIBLE EFFECT COULD IT HAVE ON THE PLAYER?

RULES ON CERTIFICATION AND STANDARD FORM FEE AGREEMENT, CONT.• NO, HE CANNOT. FIRST AND FOREMOST, HE HAS NOT BEEN RECOGNIZED AS

CERTIFIED PLAYER AGENT OR CONTRACT ADVISOR.

• ANY WRITTEN AGREEMENT BETWEEN HIMSELF AND THE PLAYER WOULD BE NULL AND VOID.

• IT ALSO HAS THE POTENTIAL TO AFFECT HIS ELIGIBILITY AS THE PLAYER SHOULD NOT BE SIGNING THESE AGREEMENTS DURING ELIGIBILITY

• FURTHER, THE NBA REQUIRES THAT YOU USE THEIR FORM. THEY HAVE STANDARDIZED THE FORM THAT ALL PLAYERS AND AGENTS SIGN AND YOU ARE NOT PERMITTED TO CHANGE ANY OF THE WORDING.

THE DO’S• YOU MUST PROVIDE YOUR PLAYER WITH A COPY OF ANY COMPENSATION

CONTRACT YOU NEGOTIATE ON THEIR BEHALF WITHIN 48 HOURS OF ITS EXECUTION.

• PROVIDE THE ITEMIZED STATEMENT COVERED PREVIOUSLY

• NOTIFY THE NBPA OF ANY SIGNIFICANT CHANGES IN YOUR STATUS RELEVANT TO YOUR CONTINUING TO BE CERTIFIED AS A PLAYER AGENT.

CHANGES IN STATUS- WHAT DOES THAT MEAN?• LAST WEEKEND YOU AND THE BOYS CELEBRATED THE BIG WIN IN COURT AND YOU HAD

WAY TOO MUCH TO DRINK. NONETHELESS, YOU DRIVE HOME AND ARE PULLED OVER AND TICKETED FOR DRIVING WHILE INTOXICATED. YOUR LAWYER ADVISES YOU TO PLEAD NO CONTEST TO THE CHARGE AND SINCE HE IS GOOD BUDDIES WITH THE JUDGE, YOU ONLY GET 12 HOURS OF COMMUNITY SERVICE. DO YOU HAVE TO REPORT TO THE NBA?

• AFTER THE BIG WIN YOU AND YOUR CLIENT HAVE A HUGE DISPUTE OVER THE FEES THAT ARE OWED. YOU TAKE WHAT YOU BELIEVE TO BE YOUR “CUT” AND THEN THE CLIENT SUES YOU AND REPORTS YOU TO THE BAR ASSOCIATION. YOUR EXCELLENT LAWYER NEGOTIATES A DEAL ON YOUR BEHALF AND YOU AND THE CLIENT SETTLE. DO YOU HAVE TO REPORT THAT TO THE NBA?

THE DON’TS (SOME OF THEM)• PROVIDE OR OFFER MONETARY INDUCEMENT TO ENCOURAGE A PLAYER TO USE YOUR SERVICES

• PROVIDE OR OFFER ANYTHING OF VALUE TO A PLAYER OR A MEMBER OF THE PLAYER’S FAMILY OR ANY OTHER PERSON FOR THE PURPOSE OF ENCOURAGING THE PLAYER TO USE YOUR SERVICES.

• HOLD OR SEEK TO HOLD EITHER DIRECTLY OR INDIRECTLY A FINANCIAL INTEREST IN ANY PRO BASKETBALL TEAM OR ANY OTHER BUSINESS VENTURE THAT WOULD CREATE AN ACTUAL OR APPEARANCE OF A CONFLICT OF INTEREST BETWEEN PLAYER AND AGENT

• REPRESENT THE MANAGER OR COACH OR MANAGEMENT REPRESENTATIVE OF ANY NBA TEAM

• SOLICIT OR ACCEPT MONEY OR ANYTHING OF VALUE FROM ANY NBA CLUB WHERE THE ACCEPTANCE WOULD CREATE A CONFLICT OR APPARENT CONFLICT OF INTEREST OF ANY PLAYER YOU REPRESENT

• INDIRECTLY CIRCUMVENTING THE FEE LIMITS OF THE STANDARD FORM MAXIMUM FEE AGREEMENT BY KNOWINGLY AND INTENTIONALLY INCREASING THE FEES THAT HE HAD CHARGED OR OTHERWISE WOULD CHARGE THE PLAYER FOR OTHER SERVICES – INCLUDING BUT NOT LIMITED TO FINANCIAL CONSULTING, ADVICE CONCERNING MONEY MANAGING, AND/OR NEGOTIATING ENDORSEMENT AGREEMENTS.

• BE SURE TO READ ALL OF THE RULES SO THAT YOU DO NOT INADVERTENTLY DO SOMETHING THAT YOU DO NOT KNOW IS SUBJECT TO DISCIPLINE

ANYTHING OF VALUE• AGENT IS INTERVIEWING PROSPECTIVE PLAYER AND THE PLAYER REALLY

LIKES THE LEATHER BOUND PORTFOLIO THAT THE AGENT HAS WITH HIM. THE PLAYER SAYS THAT HE HAS NEVER SEEN ONE WITH THE ROCKETS LOGO ON IT AND WOULD LOVE TO HAVE IT TO TAKE NOTES IN CLASS THIS YEAR. THE AGENT SAYS SURE BUT I DEFINITELY WANT YOU TO CALL ME WHEN YOUR ELIGIBILITY FINISHES. IS THIS A VIOLATION?

• PLAYER’S MOM CALLS AGENT AFTER HE IS SIGNED WITH AGENT AND FINISHED HIS ELIGIBILITY. PLAYER NEEDS A NEW TRAINER AND WOULD LIKE THE AGENT TO PAY FOR IT SINCE THE PLAYER WILL BE ENTERING INTO THE NBA DRAFT. IS THAT A VIOLATION?

HOW ARE AGENTS COMPENSATED?• REFER TO STANDARD AGREEMENT PROVIDED IN MATERIALS

• COMPENSATION PAID TO AN AGENT IS DEPENDENT UPON THE CONTRACT AGREED TO BY THE PLAYER IN CONNECTION WITH THE NBA-NBPA COLLECTIVE BARGAINING AGREEMENT. IF PLAYER RECEIVES ONLY THE MINIMUM COMPENSATION UNDER THE NBA-NBPA COLLECTIVE BARGAINING AGREEMENT FOR THE SEASON(S) COVERED BY THE INDIVIDUAL CONTRACT, THE AGENT SHALL RECEIVE 2% OF THAT COMPENSATION AS HIS/HER FEE FOR EACH SEASON. IF THE PLAYER MAKES OVER MINIMUM COMPENSATION UNDER THE COLLECTIVE BARGAINING AGREEMENT THEN THE AGENT GETS UP TO 4% OF THAT COMPENSATION AS HIS/HER FEE FOR EACH SEASON, HOWEVER THE PLAYER AND AGENT CAN AGREE TO PERCENTAGE LOWER THAN 4%. THE CALCULATION OF COMPENSATION INCLUDES THE PLAYER’S BASE SALARY, SIGNING BONUS AND ANY ACTUALLY REALIZED PERFORMANCE BONUSES.

• THE 2014-2015 LEAGUE MINIMUM FOR A PLAYER WITH ZERO NBA EXPERIENCE WAS $507,336, IF THE PLAYER HAD NO SIGNING BONUS AND NO PERFORMANCE BONUSES THEN THE AGENT’S CUT WOULD BE AROUND $10,146 FOR THE SEASON

TOTAL COMPENSATION

• PLAYER RECEIVES $1,000,000.00 IN BASE SALARY COMPENSATION. AGENT TAKES $40,000.00 PURSUANT TO HIS CONTRACTUAL AGREEMENT. PLAYER THEN REALIZES A PERFORMANCE BONUS OF $250,000.00 AND AGENT TAKES $10,000.00. PLAYER AND AGENT AGREED, HOWEVER, TO SPLIT HIS $100,000.00 SIGNING BONUS 70/30 (30 GOING TO THE AGENT) WITH THE PLAYER SINCE THE AGENT PUT OUT THE “BIG BUCKS” FOR THE PLAYER’S TRAINING OVER THE SUMMER. IS THIS A VIOLATION OF THE CONTRACT RULES?

CALCULATION ON TOTAL COMPENSATION

• YES. THE PLAYER EARNED A TOTAL SALARY AND SIGNING BONUSES OF $1,350,000.00. THIS AMOUNT, MULTIPLIED BY 4 PERCENT EQUALS $54,000.00. SINCE THE AGENT TOOK A TOTAL OF $80,000.00 FROM THE PLAYER AND HE IS SUBJECT TO DISCIPLINE.

THE UNIFORM ATHLETE AGENT ACT• THE NCAA GOVERNS ATHLETES BEFORE THEY SIGN TO PLAY PROFESSIONALLY. ONE OF THE KEY FACETS OF THE ACT RELATES

TO ELIGIBILITY OF A PLAYER

• THE ACT WAS DRAFTED IN AN ATTEMPT TO RECTIFY THE LACK OF UNIFORMITY ACROSS THE STATES WHEN DEALING WITH THE REGULATION OF ATHLETE AGENTS, WITH THE MAIN FOCUS BEING IN PROTECTING THE ATHLETE AND THE UNIVERSITIES FROM LOSS OF ELIGIBILITY BY PLAYERS AND SANCTIONS AGAINST SCHOOLS. TEXAS IS ONE OF THE STATES THAT HAS ADOPTED THE ACT. FURTHER, DECEPTIVE PRACTICES BY ATHLETE-AGENTS ARE ALSO GOVERNED BY 15 US CODE § 7801, ET. SEQ

• ATHLETE AGENT AS DEFINED BY THE ACT MEANS AN INDIVIDUAL WHO ENTERS INTO AN AGENCY CONTRACT WITH A STUDENT-ATHLETE OR DIRECTLY, OR INDIRECTLY, RECRUITS OR SOLICITS A STUDENT-ATHLETE TO ENTER INTO AN AGENCY CONTRACT

• ONE AND DONE – 19 YEARS OLD

• D-LEAGUE – ONLY HAVE TO BE 18

• RULES ALSO HAVE APPLICATIONS AS IT PERTAINS TO EACH SPORT – UNIFORMITY CREATES LESS SPACE FOR ANY PERSON OR ENTITY FROM HAVING ANY KIND OF IMPROPER INFLUENCE ON A PLAYER, TEAM OR UNIVERSITY

SIC ‘EM BEARS• ADIDAS CREATED A JERSEY FOR BAYLOR’S MEN’S BASKETBALL TEAM THAT HAD THE PHRASE “SIC

‘EM BEARS” ON IT. HOWEVER, THE NCAA IN MARCH, 2014, RULED THAT BAYLOR COULD NOT WEAR THE JERSEYS. IN SO DETERMINING, THE NCAA STATED THAT THEIR RULES PROVIDE THAT THE NEUTRAL ZONE OF A MEN’S BASKETBALL PLAYER’S JERSEY MAY ONLY CONTAIN A PLAYER’S NAME OR AN INSTITUTIONAL NAME MASCOT. FURTHER, THE RULES PROVIDE THAT NO MORE THAN TWO IDENTIFYING NAMES OR ABBREVIATIONS MAY BE PLACED ON THE FRONT OR BACK OF A GAME JERSEY. PURSUANT TO THE RULES, THE IDENTIFYING NAMES MUST IDENTIFY THE SCHOOL, THE SCHOOL’S NICKNAME OR MASCOT, OR THE PLAYER’S NAME. THUS, EVEN THOUGH THIS PHRASE – SIC ‘EM BEARS IS HISTORICALLY A PART OF THE BAYLOR CULTURE, IT IS NOT A DIRECT INDICATOR OF THE SCHOOL OR ITS NICKNAME AND THEY COULD NOT WEAR THE JERSEYS. (SEE TAB 5, NCAA MEN’S BASKETBALL 2013-2014 AND 2014-2015 RULES).

STATES THAT HAVE ADOPTED THE ACT• SEE SPREADSHEET THAT IS IN MATERIALS AT TAB 9. YOU WILL SEE FROM THE SPREADSHEET ALL

OF THE STATES THAT HAVE ADOPTED THE ACT. IF YOU WANTED TO REGISTER WITH EACH STATE THAT HAS ADOPTED THE ACT, YOU WOULD NEED TO SPEND $13,429.25 IN START UP COSTS

• BENEFIT VS. BURDEN – WE WANT PLAYERS TO KNOW THAT AGENTS HAVE REGISTERED IN THEIR STATE AND ARE IN GOOD STANDING WITH THE LAWS OF THE STATE THAT THEY ARE IN. HOWEVER, MANY WOULD ARGUE THAT THERE IS A DESPERATE NEED FOR UNIFORMITY AND RECIPROCITY THAT WOULD ALLOW THE AGENT TO PAY AN INITIAL FEE AND THEN HAVE THAT REGISTRATION FILED IN WHATEVER STATE THEY WANTED TO CONTACT A PLAYER IN.

• TEXAS HAS ADOPTED THE ACT AND REQUIRES A $500.00 FEE TO MAINTAIN YOUR REGISTRATION, WHICH IS DUE ANNUALLY. TEXAS ALSO REQUIRES A $50,000.00 SURETY BOND.

ISSUES AS IT RELATES TO SOCIAL MEDIA• ATTORNEY HAS NOW OBTAINED HIS CERTIFICATION AND STILL WANTS TO MAINTAIN HIS RELATIONSHIP WITH

HIS FAMILY FRIEND WHO IS A BIG SHOT AT KENTUCKY. AGENT HAS REGISTERED WITH THE STATE OF TEXAS AND PAID ALL OF HIS NECESSARY FEES AND DUES FOR TEXAS. AGENT FOLLOWS THE PLAYER ON FACEBOOK AND TWITTER. AGENT SENDS THE PLAYER A PRIVATE MESSAGE ON FACEBOOK DURING HIS ELIGIBILITY AND TELLS HIM THAT HE CANNOT WAIT UNTIL HE SIGNS WITH HIM. HE PROMISES PLAYER THAT HE IS GOING TO MAKE SURE THAT HE DOES EVERYTHING IN HIS POWER TO GET THAT PLAYER PICKED IN THE FIRST FIVE PICKS. HAS THE AGENT VIOLATED THE RULES?

• WHAT IF THE PLAYER PLAYS IN MICHIGAN?

• AGENT HAS AN OLD GIRLFRIEND IN KENTUCKY WHOSE DAUGHTER IS A CHEERLEADER FOR THE KENTUCKY BASKETBALL TEAM. HE CALLS THE GIRLFRIEND AND ASKS HER TO ASK HER DAUGHTER TO TALK TO THE PLAYER SINCE HE IS NOT REGISTERED IN KENTUCKY. IS THIS A VIOLATION OF KENTUCKY’S REQUIREMENTS THAT AGENTS BE REGISTERED?

IMPORTANT REQUIREMENTS FROM THE ACT• THE UNIFORM ATHLETE AGENT ACT ALSO ADDRESSES AND MAKES STANDARDS FOR CERTAIN TERMS OF THE PLAYER-AGENT

CONTRACT. THE CONTRACT MUST STATE THE AMOUNT AND METHOD OF CALCULATING CONSIDERATION PAID BY THE STUDENT-ATHLETE FOR SERVICES TO BE PROVIDED BY THE AGENT UNDER THE CONTRACT. IT MUST STATE THE NAMES OF ANY PERSONS WHO WILL BE COMPENSATED BECAUSE THE STUDENT-ATHLETE ENTERED INTO THE CONTRACT. FURTHERMORE, THE CONTRACT MUST THE FOLLOWING NOTICE IN BOLDFACE, CAPITAL LETTERING, IN CLOSE PROXIMITY TO THE SIGNATURE OF THE STUDENT-ATHLETE:

• WARNING TO STUDENT-ATHLETE

• IF YOU SIGN THIS CONTRACT:

• YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;

• IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO THIS CONTRACT, BOTH YOU AND YOUR ATHLETE AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR; AND

• YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THIS CONTRACT MAY NOT REINSTATE YOUR ELIGIBILTY.

• FAILURE TO INCLUDE THE ABOVE MAKES THE CONTRACT VOIDABLE BY THE STUDENT-ATHLETE.

MORE ON THE ACT

• THIS RULE IS TO PROTECT EDUCATIONAL INSTITUTIONS FROM BEING SANCTIONED FOR HAVING INELIGIBLE PLAYERS PARTICIPATING IN ATHLETICS. THE SANCTIONS AND PENALTIES THAT CAN BE LEVIED AGAINST A SCHOOL FOR THE PARTICIPATION OF INELIGIBLE STUDENTS CAN BE QUITE SUBSTANTIAL. ALTHOUGH THE STUDENT ATHLETE ALSO BEARS THE BURDEN OF REPORTING THE CONTRACT TO THEIR ATHLETIC DIRECTOR, THE AGENT MUST NOT DEPEND ON THE STUDENT TO GIVE NOTICE TO THE ATHLETIC DIRECTOR.

CONCEPTS THAT FLOW FROM THE NBA RULES TO THE ACT• YOU CANNOT:

• GIVE ANY FALSE OR MISLEADING INFORMATION, OR MAKE ANY MATERIALLY FALSE PROMISES OR REPRESENTATIONS.

• FURNISH ANYTHING OF VALUE TO A STUDENT-ATHLETE BEFORE THEY ENTER INTO THE AGENCY CONTRACT OR

• FURNISH ANYTHING OF VALUE TO ANY INDIVIDUAL OTHER THAN THE STUDENT ATHLETE OR ANOTHER REGISTERED STUDENT-ATHLETE. (YOU CANNOT GIVE THE FAMILY OR THE GIRLFRIEND MONEY, OR A JOB OR OTHER BENEFITS THAT HAVE A MONETARY VALUE.)

THE DEFINITION OF STUDENT ATHLETE IS BROADER THAN YOU THINK• AN INTERESTING AND IMPORTANT SIDE NOTE ABOUT THE UAAA, THE

DEFINITION OF STUDENT-ATHLETE WAS PROMULGATED TO ENCOMPASS ALL STUDENT ATHLETES OR POTENTIAL STUDENT ATHLETES. THE DEFINITION STATES THAT THE UAAA APPLIES TO ANY INDIVIDUAL WHO “ENGAGES IN, IS ELIGIBLE TO ENGAGE IN, OR MAY BE ELIGIBLE IN THE FUTURE TO ENGAGE IN, ANY INTERCOLLEGIATE SPORT.” SEE 15 U.S.C. § 7801(9). AS SUCH, THE UAAA ABSOLUTELY COVERS HIGH SCHOOL ATHLETES AND MUST BE ADHERED TO BY AGENTS WHEN CONTACTING THEM OR THEIR PARENTS.

HOW IT APPLIES TO NON-COLLEGE STUDENTS• AGENT AND HIGH SCHOOL ATHLETE HAVE BEEN GOING TO CHURCH

TOGETHER FOR YEARS. ONCE A MONTH, THEY ALL BRING FOOD FOR A POTLUCK AND HANG OUT AT THE CHURCH FOR MOVIE NIGHT. AGENT FREQUENTLY TALKS TO THE HIGH SCHOOL PLAYER ABOUT HOW HE IS DOING, WHERE IS HE GOING TO COLLEGE, ETC. PLAYER TELLS THE AGENT THAT HE WOULD LOVE TO GO TO DUKE. AGENT AGREES TO CALL HIS CONTACT AT DUKE UNIVERSITY AND ASK HIM TO TAKE A LOOK AT THE PLAYER’S FILM BECAUSE HE THINKS HE HAS THE BEST PICK AND ROLL TECHNIQUE OUT THERE. AGENT IS REGISTERED IN BOTH STATES. ARE THERE ANY VIOLATIONS IN THIS SCENARIO?

POSSIBLE CHANGES IN THE ACT• THE PROPOSED CHANGE KEEPS THE WORDING OF THE CURRENT UAAA WHICH MAKES AN INDIVIDUAL WHO

DIRECTLY OR INDIRECTLY RECRUITS OR SOLICITS A STUDENT ATHLETE TO ENTER INTO AN AGENCY CONTRACT AN ATHLETE AGENT, BUT THEN EXTENDS THE DEFINITION TO ENCOMPASS ANY INDIVIDUAL WHO, FOR COMPENSATION:

• PROCURES OR ATTEMPTS TO PROCURE EMPLOYMENT FOR A STUDENT-ATHLETE AS A PROFESSIONAL ATHLETE

• REPRESENTS A STUDENT ATHLETE AS AN ATHLETE (THINK ABOUT O’BANNON)

• ADVISES A STUDENT-ATHLETE ON FINANCES, BUSINESS VENTURES, OR CAREER MANAGEMENT

• MANAGES THE BUSINESS AFFAIRS OF A STUDENT ATHLETE; OR

• SECURES THE ENROLLMENT OF A STUDENT ATHLETE AT A PARTICULAR INSTITUTION.

• THIS NEW DEFINITION OF RECRUIT OR SOLICIT EXCLUDES ADVICE TO SELECT A PARTICULAR ATHLETE AGENT GIVEN IN A FAMILY, COACHING, OR SOCIAL SITUATION UNLESS THE ADVICE IS GIVEN BECAUSE THE ADVISOR IS IN RECEIPT OF, OR ANTICIPATING RECEIPT OF COMPENSATION FROM THE AGENT.

MORE ON CHANGES TO THE ACT• THE NEW PROPOSED CHANGES TO THE UAAA ALSO REVISE THE DEFINITION OF EDUCATIONAL INSTITUTION.

THE NEW DEFINITION MAKES IT CLEAR THAT THE ACT APPLIES TO A STUDENT ATHLETE AT ANY LEVEL OF A PUBLIC OR PRIVATE EDUCATION. THE UAAA ANNUAL MEETING NOTES REFLECT THAT THE PROPOSED DEFINITION OF STUDENT ATHLETE IS BEING EXPANDED BECAUSE AGENTS ARE PROVIDING BENEFITS TO STUDENT ATHLETES AS EARLY AS ELEMENTARY SCHOOL IF THE STUDENT APPEARS TO HAVE LONG-TERM PROFESSIONAL SPORTS CAPABILITY. WHAT THIS COULD POTENTIAL MEAN IS THAT A CHILDREN, AN ELEMENTARY AGE CHILD, COULD LOSE HIS ELIGIBILITY TO PARTICIPATE IN INTERCOLLEGIATE SPORTS BECAUSE ANY AGENT PROVIDED HIM WITH ATHLETIC EQUIPMENT, SHOES, ETC. SO, IF YOU DO BECOME AN ATHLETE-AGENT THE BEST RULE OF THUMB IS TO MAKE SURE THAT YOU DO NOT GIVE ANYTHING OF VALUE TO ANY ATHLETE, REGARDLESS OF AGE.

• THE MOST POSITIVE OF THE PROPOSED CHANGES, AT LEAST TO AGENTS, WOULD BE THE ESTABLISHMENT OF BOTH A TRUE RECIPROCAL REGISTRATION AND A CENTRAL REGISTRATION POINT.

THE ACT IN TEXAS• THE NCAA HAS LEFT IT UP TO THE STATES TO ADOPT THEIR OWN

REGISTRATION FEES, RENEWAL FEES, AND EXPIRATION OF REGISTRATION. AS STATED PREVIOUSLY, TEXAS IS EVERY YEAR. THAT IS NOT JUST THE ANNUAL FEES, BUT ALSO THE SURETY BOND THAT IS REQUIRED BY TEXAS. IT IS ALSO IMPORTANT TO NOTE THAT IF YOU PROVIDE THOSE ADDITIONAL SERVICES AS WE DISCUSSED PREVIOUSLY, YOU WILL HAVE TO HAVE AN ADDITIONAL BOND FOR THE STATE OF TEXAS

• BENEFIT VS. BURDEN?

• IN TEXAS, WE LOOK TO THE OCCUPATIONS CODE, TITLE 13, CHAPTER 2501 FOR OUR VERSION OF THE UNIFORM ACT. READ IT IN ITS ENTIRETY!

REGISTRATION IN TEXAS• YOU HAVE TO FILL OUT THE FORM REQUIRED BY THE TEXAS SECRETARY OF STATE (IN YOUR MATERIALS). IT IS

IMPORTANT TO NOTE THAT YOU WILL BE ASKED SIMILAR QUESTIONS (AS WHAT YOU WERE ASKED BY THE NBA) ABOUT YOUR MORAL FITNESS. YOU WILL HAVE TO GIVE CHARACTER REFERENCES AND YOU WILL HAVE TO DISCLOSE ANY OWNERS IN YOUR COMPANY. SO, FOR EXAMPLE, YOU MAY RAISE CAPITAL FOR YOUR BUSINESS AND GIVE SHARES OF STOCK TO THAT PERSON/ENTITY. THAT OWNERSHIP IS SUBJECT TO SCRUTINY BY THE NBA AND THE SECRETARY OF STATE.

• ORGANIZATIONS CANNOT HOLD THE REGISTRATION. IT IS ONLY HELD BY THE INDIVIDUAL WHO HAS THE LICENSE. THIS IS ALSO TRUE FOR THE NBA. WITH THAT BEING SAID, BE CAREFUL ABOUT WHO YOU HAVE HELPING YOU AND WHAT ROLE YOU GIVE THAT PERSON. IF YOU WANT TO COMMUNICATE SOME INFORMATION TO A TEAM ABOUT YOUR PLAYER AND YOU HAVE YOUR ASSISTANT CALL THE TEAM TO LET THEM KNOW HE IS WONDERFUL AND THEY SHOULD CONSIDER HIM FOR A WORKOUT, THAT WOULD BE A VIOLATION OF THE RULES AS A NON-CERTIFIED CONTRACT ADVISOR CANNOT ENTER INTO ANY DISCUSSIONS WITH A TEAM ABOUT A POSSIBLE CONTRACT.

MORE ON TEXAS REQUIREMENTS• PROFESSIONAL AGENT AND LIMITED AGENT:

• THE PROFESSIONAL ATHLETE AGENTS OPERATING IN TEXAS MUST BE MUST BE CERTIFIED BY AT LEAST ONE (1) PROFESSIONAL SPORTS ASSOCIATION (NBA, NFL, MLB, NHL OR US SOCCER FEDERATION). THE LIMITED ATHLETE AGENTS REPRESENT ATHLETES IN SPORTS THAT DO NOT HAVE A NATIONAL PROFESSIONAL ASSOCIATION SUCH AS GOLF, TENNIS, ETC. AN AGENT CERTIFIED AS A LIMITED ATHLETE AGENT MAY ONLY REPRESENT ATHLETES IN THESE SPORTS THAT DO NOT HAVE NATIONAL PROFESSIONAL ASSOCIATIONS THAT CERTIFY OR LICENSE AGENTS. AS A PROFESSIONAL AGENT YOU MAY ALSO REPRESENT THOSE ATHLETES IN SPORTS THAT DO NOT HAVE A PROFESSIONAL ORGANIZATION.

AGENT RESPONSIBILITIES IN TEXAS• FIRST AND FOREMOST, AN ATHLETE AGENT LICENSED IN TEXAS IS RESPONSIBLE FOR KNOWING THE

APPLICABLE LAW AND BEING TRUTHFUL AND COMPLETE IN ALL DEALINGS AS AN ATHLETE AGENT. IGNORANCE OF THE LAW HAS NEVER AND WILL NEVER BE A DEFENSE. OTHER RESPONSIBILITIES OF TEXAS ATHLETE AGENTS INCLUDE:

• TIMELY FILE WITH THE SECRETARY OF STATE:

• COPIES OF ATHLETE AGENT CONTRACTS (10 DAYS AFTER EXECUTION)

• BONDS TO ACT AS AN AGENT, AND, IF APPLICABLE, TO ENTER INTO FINANCIAL SERVICES CONTRACTS

• ANNUAL REGISTRATION RENEWALS

• NOTIFICATION OF ANY CRIMINAL CONVICTIONS FOR OFFENSES OTHER THAN CLASS C MISDEMEANORS

• NOTIFICATION OF DECERTIFICATION BY A NATIONAL PROFESSIONAL SPORTS ASSOCIATION

• RETAIN AND PERMIT INSPECTION OF RECORDS

AGENT RESPONSIBILITIES, CONT.• DISCLOSE REQUIRED INFORMATION:

• TO ATHLETES RELATED TO COLLEGE ELIGIBILITY

• TO ATHLETES IN ATHLETE AGENT CONTRACTS

• TO THE SECRETARY OF STATE RELATED TO REGISTRATION, RENEWAL, AND INDIVIDUAL SOLICITORS

• TO THE PUBLIC IN ADVERTISING

• TO ATHLETIC DIRECTORS REGARDING PARENT- OR GUARDIAN-INITIATED CONTACT

WHEN TO FILE A CONTRACT IN TEXAS• IT IS IMPORTANT TO NOTE THE DEFINITION OF AN ATHLETE UNDER THE

OCCUPATIONS CODE. AN "ATHLETE" MEANS AN INDIVIDUAL WHO: (A) IS ELIGIBLE TO PARTICIPATE IN INTERCOLLEGIATE SPORTS CONTESTS AS A MEMBER OF A SPORTS TEAM OR AS AN INDIVIDUAL COMPETITOR IN A SPORT AT AN INSTITUTION OF HIGHER EDUCATION; OR (B) HAS PARTICIPATED AS A MEMBER OF AN INTERCOLLEGIATE SPORTS TEAM OR AS AN INDIVIDUAL COMPETITOR IN AN INTERCOLLEGIATE SPORT AT AN INSTITUTION OF HIGHER EDUCATION AND HAS NEVER SIGNED AN EMPLOYMENT CONTRACT WITH A PROFESSIONAL SPORTS TEAM. TEXAS OCCUPATIONS CODE, TITLE 13, CHAPTER 2051(2)(A)&(B).

CONTRACT ANALYSIS

• PLAYER GRADUATED FROM LSU BUT IS NOT DRAFTED. RATHER THAN GOING INTO THE D-LEAGUE, HE CONTACTS A TEAM IN TURKEY WHO OFFERS HIM A LUCRATIVE POSITION HIS FIRST YEAR OUT. MISSING HIS GUMBO AND JAMBALAYA, HE DECIDES TO COME BACK TO THE STATES. HE SUBSEQUENTLY HIRES A TEXAS AGENT TO REPRESENT HIM. THE AGENT GETS HIM A WORKOUT WITH THE ROCKETS AND IS LATER SIGNED WITH THE TEAM. DOES THE AGENT HAVE TO FILE THE CONTRACT WITH THE TEXAS SECRETARY OF STATE?

GO BACK TO DEFINITION• HAS PARTICIPATED AS A MEMBER OF AN INTERCOLLEGIATE SPORTS TEAM OR AS AN INDIVIDUAL COMPETITOR IN

AN INTERCOLLEGIATE SPORT AT AN INSTITUTION OF HIGHER EDUCATION AND HAS NEVER SIGNED AN EMPLOYMENT CONTRACT WITH A PROFESSIONAL SPORTS TEAM

• I WOULD URGE THAT THE TEAM IN TURKEY WAS IN FACT A PROFESSIONAL TEAM AND THEREFORE BECAUSE HE DOES NOT FIT UNDER THE DEFINITION OF “NEVER SIGNED AN EMPLOYMENT CONTRACT WITH A PROFESSIONAL SPORTS TEAM”

• WHAT IF THE PLAYER GOES TO COLLEGE IN FRANCE AND THEN COMES BACK TO THE STATES TO PLAY? LOOK AT THE DEFINITION OF “INSTITUTION OF HIGHER EDUCATION” AS DEFINED IN THE ACT AND SECTION 61.003 OF THE EDUCATION CODE, I.E., A MEMBER OF A NATIONAL ASSOCIATION FOR THE PROMOTION AND REGULATION OF INTERCOLLEGIATE ATHLETICS

• IF YOU DON’T KNOW, YOU SHOULD ASK SOMEONE AT THE TEXAS SECRETARY OF STATE. FILE IF YOU ARE UNSURE AS IT IS BETTER TO FILE AND NOT NEED TO THAN TO NOT FILE AND NEED TO

REGISTRATION WITH COLLEGES• JUST WENT YOU THOUGHT IT WAS SAFE TO TALK TO A PLAYER….

• WE KNOW THAT THE NBA HAS THEIR RULES AND THE NCAA HAS THEIR RULES, BUT IT IS VERY IMPORTANT TO KNOW THAT COLLEGES HAVE THEIR OWN SET OF RULES THAT YOU ABSOLUTELY MUST FOLLOW IN ORDER TO TALK TO PLAYERS.

• YOU MUST COMPLY WITH EACH COLLEGE’S REGISTRATION.

COLLEGE COMPLIANCE• YOU WILL BE ASKED MANY OF THE SAME QUESTIONS AGAIN THAT YOU HAVE ALREADY BEEN

ASKED BY THE NBA AND THE STATE OF TEXAS. BUT EACH COLLEGE HAS THE RIGHT TO APPROVE OR DISAPPROVE OF ANYONE COMING ONTO THEIR CAMPUS TO TALK TO PLAYERS DURING THEIR ELIGIBILITY.

• EACH COLLEGE HAS THEIR OWN FORM FOR APPROVAL OF AGENTS. IT IS IMPORTANT TO UNDERSTAND THAT YOU CAN BE APPROVED BY THE NBA AND THE STATE BUT DENIED THE RIGHT TO COME ONTO A COLLEGE CAMPUS.

• FURTHER, YOU MUST COMPLY WITH THE TERMS AND CONDITIONS OF EACH COLLEGE ONCE YOU ARE APPROVED TO GO ONTO THEIR CAMPUS. THIS INCLUDES ONLY CONDUCTING ATHLETE-AGENT INTERVIEWS DURING THEIR APPROVED INTERVIEW TIMES

COLLEGE COMPLIANCE, CONT.• AGENT AND THE COLLEGE COACH ARE GREAT BUDDIES. THEY WERE ROOMMATES IN

COLLEGE AND NOW TALK ABOUT THE TEAM ALL THE TIME. AGENT ASKS COACH IF HE CAN COME INTO THE LOCKER ROOM AFTER THE GAME TO MAKE A PITCH TO THE PLAYERS ABOUT HIS NEWLY OPENED AGENCY. HE BRINGS PIZZA FOR THE POST GAME VICTORY BECAUSE EVERYONE IS HUNGRY AFTER THE HARD FOUGHT GAME.

• IS THAT A VIOLATION OF THE NBA RULES?

• IS THAT A VIOLATION OF THE STATE OF TEXAS RULES?

• IS THAT A VIOLATION OF THE NCAA RULES?

• IS THAT A VIOLATION OF THE COLLEGE RULES?

VIOLATIONS? YES!• REMEMBER THAT THE AGENT CANNOT GIVE THE PLAYERS ANYTHING OF VALUE AND THAT

PIZZA, WHILE IT DID NOT COST MUCH, WILL DEFINITELY COUNT.

• SO THAT VIOLATED THE NBA AND THE NCAA RULES

• BUT WHAT ABOUT THE MEETING? DID THAT VIOLATE THE NBA AND NCAA RULES IF THE AGENT IS REGISTERED? NO. THE AGENT MEETS HIS REQUIREMENT THROUGH REGISTRATION.

• HOWEVER, COLLEGES CONDUCT THEIR INTERVIEWS FOR ATHLETES DURING THE OFF SEASON. ANY AGENT THAT WAS GIVEN SPECIAL PRIVILEGES BY THE COACH MIGHT NOT EVER BE ASKED TO COME BACK TO THAT COLLEGE. AND, SINCE WE ALREADY SAW THAT HE VIOLATED THE RULES BY OFFERING SOMETHING OF VALUE, THEN HE COULD BE SUBJECT TO DISCIPLINE

WHAT? ONE MORE APPLICATION FOR CERTIFICATION? YES!• SO WHAT IF YOU HAVE A PLAYER THAT ENTERS THE DRAFT AND DOES NOT GET DRAFTED? NOW YOU

ARE FACED WITH WHETHER OR NOT TO PLACE HIM IN THE DEVELOPMENTAL LEAGUE OR SEND HIM OVERSEAS.

• IF YOU WANT TO REPRESENT PLAYERS OVERSEAS, YOU MUST BE LICENSED BY THE INTERNATIONAL BASKETBALL FEDERATION (FIBA).

• THIS IS THE EASIEST APPLICATION YOU WILL FILL OUT IN MY OPINION. IF YOU ARE AN ATTORNEY, YOU ARE EXEMPT FROM TAKING THEIR REQUIRED TEST IN SWITZERLAND OR MIAMI. YOU HAVE TO SUBMIT YOUR PASSPORT, CERTIFICATE OF NO CONVICTION OR LETTER OF GOOD STANDING (THIS HAS TO COME FROM A GOVERNMENT AUTHORITY TO ENSURE THAT YOU DO NOT HAVE A CRIMINAL BACKGROUND)

• PAY THE FEES – APPROXIMATELY $1,000.00 US DOLLARS BUT DUE IN SWISS FRANCS

FIBA AND THEIR CONTRACT• SEE YOUR MATERIALS FOR A COPY OF THE FIBA CONTRACT.

• THE CONTRACTS ARE TYPICALLY FOR TWO YEARS. I ALWAYS PUT IN MY CONTRACTS THAT THE PLAYER CAN TERMINATE AT ANY TIME.

• THE FEE IS ALSO TEN PERCENT OF THE CONTRACT (STANDARD).

• YOU ALSO MAY BE PLAYED DIRECTLY FROM THE CLUB. UNLIKE YOUR CONTRACT WITH YOUR NBA PLAYER, WHEREIN YOU GET PAID BY THE PLAYER, IN THE INTERNATIONAL ARENA YOU NEGOTIATE THE AGENT FEE INTO THE CONTRACT.

• SOME COUNTRIES ARE RESISTANT TO THE AGENT FEE, AND THE PLAYER CAN PAY YOU DIRECTLY. YOU JUST NEED TO HAVE ALL THAT COVERED IN YOUR CONTRACT.

INTERNATIONAL CONTACTS AND RELATIONS• ONCE YOU GET YOUR FIBA LICENSE, YOU ESSENTIALLY GET ON THE WORLD’S RADAR. EVERY PLAYER WHO IS

LOOKING FOR AN AGENT CAN GET YOUR CONTACT INFORMATION AND WILL CALL YOU AND ASK YOU TO REPRESENT THEM.

• YOU ALSO WILL HAVE AGENTS OVERSEAS REACH OUT TO YOU. BE CAREFUL WHO YOU DEAL WITH. MAKE IT ABUNDANTLY CLEAR TO THEM THAT ANY CONTRACT FOR THE PLAYER WILL GO THROUGH YOU DIRECTLY AND BE APPROVED BY YOU. YOU WANT TO MAKE SURE THERE ARE THE STANDARD THINGS IN THE CONTRACT, I.E., IN ADDITION TO WAGES, BE SURE TO INCLUDE HOUSING PROVISIONS, MEAL PROVISIONS, INTERNET ACCESS, MEDICAL ACCESS, AND ACCESS TO TRANSPORTATION. YOU ALSO WANT TO INCLUDE A PROVISION FOR ADDITIONAL COMPENSATION IF THE PLAYER PLAYS IN THE PLAYOFFS.

• I ALSO ASK THE TEAMS TO GO THROUGH ME EVEN IF THE FEE IS BEING PAID BY THE PLAYER. SOME COUNTRIES HAVE FREE MEDICAL CARE SO THERE IS NO PROVISION IN THE CONTRACT ABOUT MEDICAL EXPENSES. BUT I GET WITH THE TEAM AND MAKE SURE THAT THERE IS ACCESS TO MEDICAL CARE IN THEIR COUNTRY.

TO PAY OR NOT TO PAY? THE O’BANNON DECISION• PLAINTIFF EDWARD O'BANNON, A NEVADA RESIDENT, COMPETED AS A STUDENT ATHLETE ON THE

UNIVERSITY OF CALIFORNIA, LOS ANGELES MEN'S BASKETBALL TEAM FROM 1991 TO 1995. PLAINTIFF CRAIG NEWSOME, A WISCONSIN RESIDENT, COMPETED AS A STUDENT ATHLETE ON THE ARIZONA STATE UNIVERSITY FOOTBALL TEAM FROM 1993 TO 1994. BOTH MAINTAIN THAT THEY PARTICIPATED ON THEIR RESPECTIVE TEAMS PURSUANT TO THE RULES AND REGULATIONS OF NCAA.

• O'BANNON ALLEGED IN THE COMPLAINT THAT THE NCAA RULES AND REGULATIONS CONSTITUTE ANTICOMPETITIVE CONDUCT. THE PLAINTIFF CITES NCAA FORM 08–3A, WHICH NCAA REQUIRES STUDENT ATHLETES TO SIGN EACH YEAR. BY SIGNING FORM 08–3A, STUDENT ATHLETES AGREE TO THE FOLLOWING:

• “YOU AUTHORIZE THE NCAA [OR A THIRD PARTY ACTING ON BEHALF OF THE NCAA (E.G., HOST INSTITUTION, CONFERENCE, LOCAL ORGANIZING COMMITTEE)] TO USE YOUR NAME OR PICTURE TO GENERALLY PROMOTE NCAA CHAMPIONSHIPS OR OTHER NCAA EVENTS, ACTIVITIES OR PROGRAMS.”

O’BANNON, CONT.• O'BANNON CLAIMS THAT THE FORM REQUIRES STUDENT ATHLETES TO “RELINQUISH ALL RIGHTS IN PERPETUITY TO THE

COMMERCIAL USE OF THEIR IMAGES, INCLUDING AFTER THEY GRADUATE AND ARE NO LONGER SUBJECT TO NCAA REGULATIONS.” HE ASSERTS THAT STUDENT ATHLETES' PARTICIPATION IN INTERCOLLEGIATE ATHLETICS EVENTS IS CONDITIONED ON SIGNING THIS FORM.

• O'BANNON ALSO CITES NCAA BYLAW ARTICLE 12.5.1.1, WHICH PROVIDES:

• A MEMBER INSTITUTION OR RECOGNIZED ENTITY THEREOF (E.G., FRATERNITY, SORORITY OR STUDENT GOVERNMENT ORGANIZATION), A MEMBER CONFERENCE OR A NON-INSTITUTIONAL CHARITABLE, EDUCATIONAL OR NONPROFIT AGENCY MAY USE A STUDENT-ATHLETE'S NAME, PICTURE OR APPEARANCE TO SUPPORT ITS CHARITABLE OR EDUCATIONAL ACTIVITIES OR TO SUPPORT ACTIVITIES CONSIDERED INCIDENTAL TO THE STUDENT-ATHLETE'S PARTICIPATION IN INTERCOLLEGIATE ATHLETICS, PROVIDED THE FOLLOWING CONDITIONS ARE MET:

• (I) THE STUDENT-ATHLETE AND AN AUTHORIZED REPRESENTATIVE OF THE CHARITABLE, EDUCATIONAL OR NONPROFIT AGENCY SIGN A RELEASE STATEMENT ENSURING THAT THE STUDENT-ATHLETE'S NAME, IMAGE OR APPEARANCE IS USED IN A MANNER CONSISTENT WITH THE REQUIREMENTS OF THIS SECTION.

O’BANNON, CONT.• O'BANNON CLAIMED THAT, AMONG OTHER THINGS, FORM 08–3A AND ARTICLE 12.5.1.1 ENABLE THE NCAA TO

ENTER INTO LICENSING AGREEMENTS WITH COMPANIES THAT DISTRIBUTE PRODUCTS CONTAINING STUDENT ATHLETES' IMAGES. THE PLAINTIFF ALLEGES THAT NEITHER HE NOR OTHER STUDENT ATHLETES CONSENTED TO THESE AGREEMENTS AND THAT THEY DO NOT RECEIVE COMPENSATION FOR THE USE OF THEIR IMAGES. THE PLAINTIFF CLAIMED THAT COLLEGIATE LICENSING COMPANY (CLC), WHICH IS INCORPORATED AND HAS A PRINCIPAL PLACE OF BUSINESS IN GEORGIA, SERVES AS NCAA'S “LICENSING ARM” AND FACILITATES THESE ARRANGEMENTS.

• O'BANNON ASSERTED THAT NCAA'S AND CLC'S ACTIONS EXCLUDED HIM AND OTHER FORMER STUDENT ATHLETES FROM THE COLLEGIATE LICENSING MARKET. HE CLAIMS THAT, BECAUSE NCAA HAS RIGHTS TO IMAGES OF HIM FROM HIS COLLEGIATE CAREER, IT, ALONG WITH ITS CO-CONSPIRATORS, FIX THE PRICE FOR THE USE OF HIS IMAGE AT “ZERO.” HE MAINTAINED THAT THIS CONDUCT “HAS ARTIFICIALLY LIMITED SUPPLY AND DEPRESSED PRICES PAID BY DEFENDANTS AND THEIR COCONSPIRATORS TO PLAINTIFF AND THE MEMBERS OF THE CLASS FOR USE OF THEIR IMAGES AFTER CESSATION OF PARTICIPATION IN INTERCOLLEGIATE SPORTS.”

O’BANNON CONT.• BASED ON THIS ALLEGED CONDUCT, O'BANNON AND NEWSOME PLEADED

THAT DEFENDANTS VIOLATED SECTION 1 OF THE SHERMAN ACT BY AGREEING TO FIX PRICES AND TO ENGAGE IN A GROUP BOYCOTT, BOTH OF WHICH CONSTITUTE UNREASONABLE RESTRAINTS OF TRADE. IN ADDITION, THEY ASSERTED RELATED CLAIMS FOR UNJUST ENRICHMENT AND AN ACCOUNTING. THE REMEDIES THEY SOUGHT INCLUDED MONETARY RELIEF, DISGORGEMENT OF PROFITS FROM THE WRONGFUL USE OF PUTATIVE CLASS MEMBERS' IMAGES AND A PERMANENT INJUNCTION PROHIBITING DEFENDANTS FROM USING FORMER STUDENT ATHLETES' IMAGES WITHOUT VALID CONSENT. O'BANNON V. NAT'L COLLEGIATE ATHLETIC ASS'N, NO. C 09-1967 CW, 2010 WL 445190, AT *1-2 (N.D. CAL. FEB. 8, 2010).

O’BANNON CONT.• ON AUGUST 8, 2014, JUDGE CLAUDIA WILKEN RULED IN FAVOR OF PLAINTIFFS DECLARING THAT THE NCAA’S CHALLENGED RULES

UNREASONABLY RESTRAINED TRADE IN VIOLATION OF THE SECTION 1 OF THE SHERMAN ACT. JUDGE WILKEN GRANTED AN INJUNCTION DECLARING THAT AS OF AUGUST 1, 2015, THE NCAA WILL BE ENJOINED FROM “ENFORCING ANY RULES OR BYLAWS THAT WOULD PROHIBIT ITS MEMBER SCHOOLS AND CONFERENCES FROM OFFERING THEIR FBS FOOTBALL OR DIVISION 1 BASKETBALL RECRUITS A LIMITED SHARE OF REVENUES GENERATED FROM THE USE OF THEIR NAMES, IMAGES, AND LIKENESS IN ADDITION TO A FULL GRANT-IN-AID.” (THE RULING IS ABOUT 99 PAGES)

• THE INJUNCTION DID NOT PRECLUDE, HOWEVER, THE NCAA FROM CAPPING THE AMOUNT OF COMPENSATION THAT MAY BE PAID TO STUDENT ATHLETES, HOWEVER, THE NCAA WILL NOT BE PERMITTED TO SET THE CAP BELOW THE COST OF ATTENDANCE. THE INJUNCTION ADDITIONALLY PROHIBITS THE NCAA FROM ENFORCING ANY RULES TO PREVENT ITS MEMBER SCHOOLS FROM OFFERING TO DEPOSIT A LIMITED SHARE OF LICENSING REVENUE IN TRUST FOR THE FBS FOOTBALL AND DIVISION 1 BASKETBALL RECRUITS. THESE TRUST AMOUNTS WOULD BE PAYABLE WHEN THE ATHLETES LEAVE SCHOOL OR THEIR ELIGIBILITY EXPIRES. THE NCAA WILL BE PERMITTED TO SET A CAP ON THESE AMOUNTS SO LONG AS SAID CAP IS NOT LESS THAN FIVE THOUSAND DOLLARS ($5,000.00) PER YEAR FOR EVERY YEAR THE STUDENT-ATHLETE REMAINS ACADEMICALLY ELIGIBLE.

• THE NCAA APPEALED THIS RULING; ARGUMENTS WERE HEARD IN JULY, 2015, BUT THE 9TH CIRCUIT HAS YET TO HAND DOWN JUDGMENT ON THE APPEAL. HOWEVER, THE COURT HAS GRANTED A STAY ON THE INJUNCTION UNTIL THE APPEAL HAS BEEN DECIDED.

O’BANNON, CONT.• THE O’BANNON DECISION WAS A WIN FOR STUDENT-ATHLETES. ONE PORTION OF THE

DECISION STATES THAT “THE NCAA COULD PERMIT ITS SCHOOLS TO HOLD IN TRUST LIMITED AND EQUAL SHARES OF ITS LICENSING REVENUE TO BE DISTRIBUTED TO ITS STUDENT-ATHLETES AFTER THEY LEAVE COLLEGE OR THEIR ELIGIBILITY EXPIRES.” ID., AT 92. WHAT THIS COULD MEAN FOR SOME STUDENT ATHLETES THAT ARE PERMANENTLY INJURED DURING THEIR ELIGIBILITY PERIOD IS THAT THEY COULD CONTINUE TO GO TO COLLEGE IF PAID OUT OF THIS TRUST FUND. MANY COLLEGE ATHLETES ONLY ARE ABLE TO GO TO COLLEGE BECAUSE OF THEIR ATHLETIC SCHOLARSHIP AND IF THEY LOSE THEIR SCHOLARSHIP, THE CHANCES OF THEM FINISHING SCHOOL ARE VERY SLIM. OTHERS ARE CONCERNED THAT THE “BUSINESS” OF COLLEGE SPORTS COULD TAKE THE HEART AND SOUL OUT OF THE COLLEGE PLAYER WHO PLAYS FOR THEIR LOVE OF THE GAME.

TEXAS AND SPORTS LAW• NAT'L COLLEGIATE ATHLETIC ASSN V. YEO, 171 S.W.3D 863 (TEX. 2005):

• JOSCELIN YEO BROUGHT ACTION AGAINST NCAA FOR SANCTIONS IMPOSED UPON HER IN ALLEGEDLY VIOLATIONS OF NCAA RULES. YEO, A SWIMMER FROM SINGAPORE, BEGAN HER COLLEGIATE CAREER AT UC-BERKLEY. AFTER A COMPETING FOR A YEAR AT BERKLEY SHE TRANSFERRED, WITH HER COACH, TO UT-AUSTIN. NCAA RULES GENERALLY PROHIBIT A STUDENT WHO TRANSFERS FROM ONE FOUR-YEAR MEMBER INSTITUTION TO ANOTHER FROM PARTICIPATING IN INTERCOLLEGIATE ATHLETIC COMPETITIONS FOR ONE FULL ACADEMIC YEAR, BUT THIS RESTRICTION MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES IF THE FORMER INSTITUTION DOES NOT OBJECT. BERKELEY REFUSED TO WAIVE THE RESTRICTION, AND THUS YEO WAS INELIGIBLE TO COMPETE AT UT–AUSTIN FOR AN ACADEMIC YEAR.

• AS PERMITTED BY NCAA RULES, YEO DID NOT ENROLL IN CLASSES FOR THE FALL SEMESTER OF 2000 IN ORDER TO COMPETE IN THE OLYMPICS. IN COMPLIANCE WITH THE ONE-YEAR RESTRICTION, SHE DID NOT PARTICIPATE IN INTERCOLLEGIATE EVENTS DURING THAT SEMESTER OR THE SPRING SEMESTER, WHEN SHE WAS ENROLLED IN CLASSES. UT–AUSTIN MISTAKENLY BELIEVED THAT YEO'S FIRST SEMESTER HAD COUNTED TOWARD SATISFYING THE RESTRICTION AND THAT SHE WAS FREE TO ENGAGE IN COMPETITION BEGINNING THE FALL SEMESTER OF 2001. AFTER YEO COMPETED IN FOUR EVENTS, BERKELEY COMPLAINED TO THE NCAA. UT–AUSTIN CONFESSED ITS ERROR AND AGREED THAT YEO WOULD SIT OUT THE REMAINDER OF THE SEMESTER, BUT THE NCAA REQUIRED THAT SHE NOT PARTICIPATE IN THE FIRST FOUR EVENTS THE FOLLOWING SPRING, TO MATCH THE FOUR EVENTS IN WHICH SHE HAD BEEN DISQUALIFIED. YEO DID NOT KNOW OF UT–AUSTIN'S DISCUSSIONS WITH THE NCAA AND SIMPLY DID AS UT–AUSTIN TOLD HER.

YEO, CONT.• YEO SUED UT–AUSTIN AND ITS VICE PRESIDENT FOR INSTITUTIONAL RELATIONS AND LEGAL AFFAIRS,

PATRICIA OHLENDORF, TO ENJOIN THEM FROM DISQUALIFYING HER FROM COMPETING IN THE CHAMPIONSHIP MEET TWO DAYS LATER AND FOR A DECLARATION THAT UT–AUSTIN HAD DENIED HER PROCEDURAL DUE PROCESS AS GUARANTEED BY THE TEXAS CONSTITUTION. ON MARCH 21, THE NCAA INTERVENED IN THE ACTION, BUT YEO MOVED TO STRIKE THE INTERVENTION, AND AFTER A HEARING LATER THAT DAY, THE TRIAL COURT GRANTED YEO'S MOTION. THE NEXT MORNING, THE NCAA SOUGHT MANDAMUS RELIEF FROM THE COURT OF APPEALS, AND UT–AUSTIN APPEALED FROM THE TEMPORARY RESTRAINING ORDER. THAT AFTERNOON, THE COURT OF APPEALS DENIED THE PETITION FOR MANDAMUS AND DISMISSED THE INTERLOCUTORY APPEAL FOR WANT OF JURISDICTION. YEO COMPETED IN THE CHAMPIONSHIP MEET.

• IN NOVEMBER 2002, AFTER A TRIAL TO THE BENCH, THE TRIAL COURT RENDERED JUDGMENT FOR YEO, DECLARING THAT UT–AUSTIN HAD DENIED YEO PROCEDURAL DUE PROCESS GUARANTEED BY THE TEXAS CONSTITUTION, THEREBY DEPRIVING HER OF PROTECTED LIBERTY AND PROPERTY INTERESTS.

YEO, CONT.• YEO ARGUED THAT SHE WAS ENTITLED TO NOTICE AND A MEANINGFUL HEARING BEFORE NCAA RULES WERE APPLIED TO HER BECAUSE OF HER

UNIQUE REPUTATION AND EARNING POTENTIAL. HAD SHE BEEN DISQUALIFIED FROM COMPETING IN THE CHAMPIONSHIP MEET, SHE CONTENDS, PEOPLE WOULD HAVE SUSPECTED THAT IT WAS FOR HER OWN MISCONDUCT AND NOT FOR UT–AUSTIN'S MISTAKES IN ATTEMPTING TO COMPLY WITH NCAA RULES. YEO ACKNOWLEDGES THAT THE UNITED STATES SUPREME COURT HAS HELD THAT REPUTATION ALONE IS NOT A PROTECTED LIBERTY OR PROPERTY INTEREST. BUT IT IS THE DEGREE OF HER INTERESTS, YEO CONTENDS, AND NOT MERELY THEIR CHARACTER, THAT BRING THEM WITHIN CONSTITUTIONAL PROTECTION. A STUDENT-ATHLETE WITH A LESSER REPUTATION OR LESS CERTAIN OF HER EARNING POTENTIAL, SHE CONCEDES, WOULD NOT HAVE THE SAME RIGHTS. THE TEXAS SUPREME COURT DID AGREE WITH THE LOWER COURTS AND OVERTURNED THE DECISION. THE COURT FOUND THAT:

• “YEO'S CLAIMED INTEREST IN FUTURE FINANCIAL OPPORTUNITIES IS TOO SPECULATIVE FOR DUE PROCESS PROTECTION. THERE MUST BE AN ACTUAL LEGAL ENTITLEMENT. WHILE STUDENT-ATHLETES REMAIN AMATEURS, THEIR FUTURE FINANCIAL OPPORTUNITIES REMAIN EXPECTATIONS. NAT'L COLLEGIATE ATHLETIC ASSN V. YEO, 171 S.W.3D 863, 870 (TEX. 2005). THE COURT OVERTURNED THE LOWER COURTS STATING THAT “WE HAVE TWICE REMINDED THE LOWER COURTS THAT “JUDICIAL INTERVENTION IN [STUDENT ATHLETIC DISPUTES] OFTEN DOES MORE HARM THAN GOOD.”24 AS THE FIFTH CIRCUIT HAS SAID, JUDGES ARE NOT “SUPER REFEREES”. ALONG THE SAME VEIN, THE UNITED STATES SUPREME COURT HAS OBSERVED: “COURTS DO NOT AND CANNOT INTERVENE IN THE RESOLUTION OF CONFLICTS WHICH ARISE IN THE DAILY OPERATION OF SCHOOL SYSTEMS AND WHICH DO NOT DIRECTLY AND SHARPLY IMPLICATE BASIC CONSTITUTIONAL VALUES.” WE REITERATE THIS COUNSEL TO THE TRIAL COURTS AND COURTS OF APPEALS. ID., AT 870.

THE PRACTICAL SIDE TO SPORTS AGENCY• I HAVE A SEPARATE LEGAL ENTITY FOR MY SPORTS AGENCY.

• DO NOT LET THE PROCESS DISSUADE YOU FROM BECOMING A SPORTS AGENT. IF YOU LOVE THE IDEA OF REPRESENTING PLAYERS, MENTORING THEM AND WALKING WITH THEM AS THEY GO THROUGH THE STAGES OF THEIR CAREER, THEN DO IT.

• IF YOU ARE PASSIONATE ABOUT IT YOU CAN BE GREAT AT IT. FOLLOW YOUR HEART BUT GO INTO IT WITH REASONABLE EXPECATIONS

• YOU WILL PROBABLY NOT SIGN SOMEONE FROM KENTUCKY YOUR FIRST YEAR AS AN AGENT. BUT, IF YOU ARE COMMITTED TO THE PLAYERS YOU HAVE AND WORK HARD TO FIND THEM A JOB, THEN THEY WILL STICK WITH YOU.

• THE “BUSINESS” OF SPORTS AGENCY IS WORTH IT WHEN YOUR PLAYER SEES HIS DREAMS COME TRUE.

• QUESTIONS?