In recent months, the NCAA has launched several investigations into inappropriate relationships between student-athletes and agents or their runners. As a result, athletes and schools such as the University of Southern California and the University of North Carolina have faced player ineligibility and other sanctions. While the great majority of agents play by the rules, it is often glossed over that those who do not, these so-called "rogue agents," are breaking the law by providing improper benefits to student-athletes. By and large, sports agents operate according to state and federal statutes and also rules and regulations promulgated by their industry. Providing improper benefits to college athletes is often a violation of both state and federal laws. Yet it is the student-athletes, some of whom are still teenagers, that face suspension from competition and potential expulsion from school – while the rogue agents largely remain unpunished.
Existing legislation over agents' interaction with student-athletes varies by state. To date, 42 states have laws governing sports agents, 39 of which have enacted the Uniform Athletes Agent Act. Additionally, a federal cause of action exists in the Sports Agent Responsibility and Trust Act of 2004. Despite these myriad rules and regulations, data show that these laws are rarely enforced. State prosecuting bodies claim to lack the resources to effectively enforce agent laws; believing resources are better spent on other, more pressing, criminal investigations. For example, the North Carolina Secretary of State has not sought to prosecute any of the rogue agents involved in the University of North Carolina scandal, despite announcing an initial investigation in July 2010.
Evidenced by the recent investigations into the football programs of USC and UNC, the NCAA has significant resources to assist state and local law enforcement in cracking down on agents breaking the law. Further, these organizations can seek the assistance of the great majority of law-abiding agents in the industry who have a vested interest in seeing this type of activity eradicated. Still, there are certain inherent complications in obtaining information about rogue agent activities. Many athletes have a fear of retribution for reporting agent misconduct as they often bear the brunt of any consequences. Moreover, schools have little impetus to investigate agent misconduct because if they uncover it, the school is forced to take ownership of the NCAA penalties and face player ineligibility and program sanctions. For example, the Unversity of North Carolina has fully cooperated with the NCAA in its recent investigation into the football program, yet was not rewarded with increased transparency from the NCAA. Other schools, including the University of Alabama and Auburn University have chosen to instead resist the NCAA's request for full disclosure and access and have so far reaped the rewards of this tactic by little to no sanctions. Without providing incentives for schools to investigate agent transgressions or increasing enforcement of existing law, players and institutions are left shouldering the burden of agency sanctions.
As the NCAA continues to investigate college football programs across the country, including one of the leading contenders for the Heisman trophy, Cam Newton of Auburn, various suggestions have been proposed to combat the epidemic of unscrupulous agents and improper benefits to college athletes. The solution that has gained the most traction recently is to sanction football players responsible for violating NCAA rules once they begin their professional career. This suggestion does not attack the problem at its root –the rogue agents.
The NCAA and the universities should work in conjunction with state and local law enforcement, and agent industry organizations to form an information sharing partnership. For example, the information gleaned from the NCAA's investigation into USC's football program would provide a strong foundation for the California Secretary of State's criminal investigation into the agent who provided Reggie Bush with improper benefits.
Further, schools that cooperate with the NCAA should be rewarded for maintaining effective compliance programs and affirmatively reporting any issues to the NCAA. The NCAA must improve its investigative transparency for universities to create an incentive for full cooperation.
In conclusion, the recent uptick in rogue agent activity in college sports must be addressed at its foundation. State and local law enforcement, working in conjunction with the NCAA, individual universities and industry organizations, should begin prosecuting agents who break the law. Schools and student-athletes, alike, should be proactive in handling any issues relating to agent relations or NCAA infractions. In dealing with such matters, it is important that you be advised by experienced and trusted advisers. The Ropes & Gray Sports Law Group is highly experienced in this area and can help.
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