Commentary

NCAA cracks down on baseball advisers

New player questionnaire could hinder MLB draft prospects

Updated: September 21, 2009, 2:28 PM ET
By Jerry Crasnick | ESPN.com

The NCAA walks a fine line with baseball players selected in the annual June draft. Players are free to seek guidance, but the NCAA distinguishes between "agents" and "advisers" and makes it clear that athletes who fail to recognize the difference put their eligibility at risk.

The line is hazy, and teams and agents routinely wink at practices that fall beyond the letter of the law. But as the money increases and the draft becomes a prime financial battleground, the signs are pointing toward an attempted crackdown by the NCAA.

[+] EnlargeAndrew Oliver
Courtesy Mark Crammer Clemson Sports InformationThe lawsuit then-Oklahoma State pitcher Andy Oliver won in February ruled that NCAA regulations on advisers put the players at risk for exploitation.

The NCAA Eligibility Center recently distributed a questionnaire to college baseball players that suggests tighter oversight of advisers in the draft. Many agents questioned where the initiative will lead, only seven months after an Ohio judge upheld former Oklahoma State pitcher Andy Oliver's right to representation in the draft.

"The court ruling said a player is allowed to have representation like anyone else in America," said Scott Boras, baseball's most prominent agent and an active presence as an adviser in the draft. "Why should an 18-year-old kid not have the benefit of counsel when dealing with a professional franchise? It makes no sense."

ESPN.com obtained a copy of the form, which includes 16 questions for coaches to distribute to recent recruits and current college players who were selected in the June draft but didn't sign professional contracts. Among them:

1. Provide the name and contact information (e-mail address and phone number) of your adviser.

2. Is your adviser an attorney?

3. Did your adviser have any direct communications with any MLB clubs on your behalf?

4. Did your adviser discuss your signability with any clubs?

Stephen Webb, the NCAA's associate director of amateurism certification, declined comment on the letter. He referred ESPN.com to the organization's media relations department, which sent a two-paragraph response via e-mail.

The NCAA said the questionnaire is part of an effort to ensure "a consistent determination of prospective student-athletes' eligibility status," and is "solely motivated to gather information to be used during the certification process."

"It is important that the Eligibility Center gather all necessary information in order to make an accurate determination," the NCAA said. "As such, it has previously sent similar requests for information to prospective student-athletes in other sports, including golf and soccer."

Rob Manfred, Major League Baseball's vice president of labor relations and human resources, said the letter is strictly an NCAA initiative.

"Our position is, we draft a kid, he tells us who he wants to deal with, and that's who we deal with," Manfred said.

Nevertheless, the letter includes a waiver for players to sign that would allow the NCAA to forward information to MLB clubs. Sources said that provision has generated concern within the Players Association, which oversees the certification of agents and negotiates draft rules in collective bargaining.

Michael Weiner, the union's general counsel, declined to comment.

The NCAA has occasionally punished players who sought assistance in the draft. In 2002, Vanderbilt pitcher Jeremy Sowers sat out six games after it was discovered that his representatives talked to Cincinnati Reds officials who had drafted him out of high school.

Oliver was declared ineligible for the 2008 NCAA regional tournament after it was discovered that advisers Bob and Tim Baratta had sat in on negotiations with the Minnesota Twins in 2006. After Oliver switched to Boras in March 2008, the Baratta brothers reportedly turned in Oliver to the NCAA and submitted a $113,775 bill for services rendered.

Oliver filed a lawsuit and was reinstated at Oklahoma State when Tygh M. Tone, an Eric County (Ohio) common pleas judge, ruled that NCAA regulations limiting the role of attorneys in counseling student-athletes are impossible to enforce and allow for the exploitation of players.

Oliver re-entered the draft in June, with Boras as his adviser, and signed with the Detroit Tigers for a $1.495 million bonus as a second-round pick. Following the judge's ruling in Oliver's favor during the bench trial, Oliver is seeking damages in the jury trial, which is scheduled to begin in October.

Rick Johnson, Oliver's attorney, said the latest NCAA memo is a direct violation of Tone's ruling in Oliver's behalf.

"It illegally and unethically seeks attorney-client privileged information, and it misstates the NCAA's bylaws and what is required of student-athletes, who are not required to disclose this level of information, sign releases, etc., without any probable cause or due process," Johnson said in an e-mail to ESPN.com.

Student-athletes, who are young, generally unsophisticated and unable to hire legal counsel, are being intimidated to give up all sorts of rights that no sane person would agree to do

-- Attorney Rick Johnson, on the NCAA's new player questionnaire

Johnson added that the NCAA Eligibility Center is "a wholly-owned, for-profit subsidiary of the nonprofit NCAA," which has no authority to communicate with student-athletes.

"Student-athletes, who are young, generally unsophisticated and unable to hire legal counsel, are being intimidated to give up all sorts of rights that no sane person would agree to do," Johnson said.

Although the adviser-agent distinction appears rooted in semantics, the NCAA defines an agent as someone who tries to market a player's skills to an MLB club or communicate directly with a team on a player's behalf. That's prohibited under the rules. An adviser, in contrast, stays in the background while the player and his family negotiate directly with teams.

Boras, a lawyer, said he adheres to NCAA regulations by charging a fee to players whom he advises in the draft.

"We are compliant with the NCAA rules by mandate," Boras said. "We have to go to families and charge them for information that we would otherwise not charge for. And we have to go through the bailiwick of having the parents deal with the teams through our counsel, which is crazy."

Vanderbilt coach Tim Corbin, whose program has sent pitcher David Price and several other high picks to professional ball in recent years, considers the NCAA's latest efforts a positive step in distinguishing between qualified advisers and inexperienced, rogue agents who stalk high school and college players in the quest for a commission.

"The kids need advisement when they get to that level," Corbin said. "A lot of agents and advisers are very good at what they do, and it makes sense that people in the business who have been around can help the parents and the child try to sort through this process. Otherwise, parents and kids could get abused.

"I think this stems from the 'cling-on' guys who see the high school kids as a quick buck. You have groups of people who are chasing kids through parking lots to get their services. It's run awry to the point where there probably has to be some legislation to keep it from getting out of control."

Rising payouts in the draft have prompted commissioner Bud Selig to call for a hard slotting system for bonuses, with no exceptions. This year, Major League Baseball recommended that teams reduce draft bonuses by 10 percent, but Baseball America reported that the total payout for the first five rounds stayed even between 2008 and 2009.

Pitcher Stephen Strasburg, selected first overall by the Washington Nationals, set draft records with a $7.5 million bonus and a $15.1 million guaranteed payout while using Boras as his adviser.

One agent, who spoke on the condition of anonymity, said the NCAA's attempts to limit or crack down on advisers could put draft picks at a distinct disadvantage in negotiations.

"Are you going to have Joe Bob the refrigerator repairman negotiating with the New York Yankees?" the agent said. "A team has experts, and these kids and their families are playing in a field that they have no idea about."

Jerry Crasnick covers baseball for ESPN.com. His book "License To Deal" was published by Rodale. Click here to order a copy. Jerry can be reached via e-mail.

Jerry Crasnick | email

ESPN.com MLB Sr. Writer