At some point in their career — many points if you work in a certain type of law firm — every young lawyer is asked to find some legal authority to support a truly dumbass argument that the partner for whom they’re working thinks is brilliant. Some precedent which stands for a proposition which flies in the face of established law or, at the very least, makes damn little sense. The worst part of this is that the partner who came up with the, um, novel argument won’t own up to the fact that it’s crazy, so when the young lawyer is given the assignment, the partner always says “I’m sure there’s tons of law on this out there.” By doing this, failure will later be reported to the client as a result of the young associate’s inability to find the right law, rather than the partner’s terminally creative thinking. In the rare event of success, the partner will, of course, hog all the credit. It’s also worth noting that young lawyers experience much higher rates of divorce, alcoholism, and depression than those in other professions, but that’s not important right now.

Anyway, two examples of this kind of thinking are on display in the case of Andy Oliver, the Oklahoma State southpaw who is suing the NCAA in an Ohio court for declaring him ineligible due to his having worked with a pair of agents — the Barattas — after he was drafted out of high school. Lots of amateurs do this, apparently, but for some reason the NCAA decided to come down extra hard on Mr. Oliver. In his defense, Oliver’s people make the first stupid argument:

“Because the Barattas are lawyers, whenever lawyers are involved it changes the dynamic because lawyers are regulated by the Supreme Court of the individual states. The Barattas were at a 15-minute meeting with the Twins and talked to the Twins twice on the phone. That’s what Andy’s in trouble for. At that time, they were offering like $400,000. What lawyer could let an 18-year-old kid negotiate a contract like that by himself? That would be malpractice. That’s why the rule is invalid on its face, because it interferes with the ethical obligation a lawyer has to protect his client. The NCAA is attempting to regulate lawyers, but they’re not allowed to.”

There is some logic in there — like the part about how silly it is that an 18 year-old can’t hire representation to advise him on a very important decision prior to entering college lest he kill his eligibility — but the notion that lawyers are somehow OK while agents are not is pretty silly. Do we really want to create a system where players feel obligated to hire lawyers simply because they are lawyers rather than experienced agents? Should we really indulge the fiction that NCAA is attempting to “regulate lawyers” when, in reality, they’re simply setting rules for their organization, even if they are dumb ones? In every way, this argument attacks all that Oliver’s lawyers mistakenly believe to be vulnerable about the NCAA’s decision, but nothing about it which is truly wrong. Maybe there’s some kind of genius there, but if an argument doesn’t make surface sense to an outside observer, it’s probably not going anywhere.

The NCAA has a beauty of an argument too, this one in a cross-claim it makes against Oklahoma State:

The NCAA’s cross-claim against OSU argues that because Oliver was suspended by Oklahoma State and not by the NCAA, the school has an obligation to contribute toward any monetary damages awarded to Oliver against the NCAA “to the extent that OSU’s actions have caused those monetary damages.”

Get that? Because Oklahoma State moved to enforce the NCAA’s rules — rules which, if it didn’t enforce, would cause Oklahoma State itself to be punished — Oklahoma State has to pay the NCAA if the court decides that Oliver was wrongfully deprived of college eligibility.

How much time and how much in attorneys fees would be saved if the NCAA simply ceased to promulgate rules that impose restrictive and exploitative conditions on young adults under the guise of amateurism? Why should an 18 year-old baseball prodigy be forced to operate without professional assistance when 18 year-old violin, painting, and physics prodigies are not? At the same time, why are presumably high-priced lawyers spending Andy Oliver’s money to create legal disincentives for players to consult agents as opposed to simply lawyering up?

I don’t know the answers to any of those questions, but I tend to think that they lie with those partners in the law firms spinning silly arguments and making the lives of young associates miserable.

(thanks to Pete Toms for the link)

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  1. Keith Law said...

    “Do we really want to create a system where players feel obligated to hire lawyers simply because they are lawyers rather than experienced agents?”

    Most of the agents I know are lawyers by trade. I think the distinction is in the agreement between the player and the agent/attorney, not in the latter’s professional background.

  2. Craig Calcaterra said...

    Good point.  I’ve seen a lot of scary stuff in even the most seemingly benign retention agreements, however, so I’m having trouble understanding how a judge could find that an agreement with an agent does damage to the NCAA’s interests where one with an attorney does not.  Ultimately I would hope that some court (or more directly, the NCAA itself) will realize that allowing a kid to have someone represent their interests is a basic good and work from there.

  3. MooseinOhio said...

    I love the fact that Chris Weinke and Josh Booty can be professional athletes as baseball players but are considered amateur athletes as 22 year old football players that spent the past four years in minor league baseball.  I understand the argument that allows this to occur but I struggle with it as I considered them ‘professional athletes’ that played baseball – not as professional baseball players that played amateur football (if you can call Div I NCAA football an amateur sport).

    BTW – Saw Josh Booty at a Seadogs game and he had a rocket arm that caught my attention as he was throwing lasers across the infield.  After looking him up in the program and seeing he had a .225 BA in double AA I knew he would not be making it in the majors (though he did get a Sept call up due to his contract).

  4. The Common Man said...

    Craig, doesn’t it matter what role the Baratta’s were playing in the exchange with the Twins?  If they were actively engaged in negotiation vs. checking the contract for irregularities? What’s the difference between an advisor and an agent?

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