by Josh Luchs
Nonetheless, enforcement today is token at best, and at worst, a total joke. It could be better, much better, and that would decrease the flagrant corruption of supposed amateur athletics. To understand what can be done, you have to look at the issues from the top down, each one interlocking with the next; find the real points of vulnerability; and apply pressure where it matters. Not surprisingly, it’s all about money.
The Uniform Athlete Agent Act
Passed in 2000, the Act requires agents to register in each state that ratifies the law and it allows for criminal and civil penalties to be sought at the state level but enforcement is on a state-by-state basis, with no overarching governing body. Some states are aggressive, some are not. Some prosecutors are zealous, some are not. Registration of agents doesn’t take place in every state. And there is a growing trend to expand the definition of an “agent.” The intention is to restrict more people’s behavior but in fact it confuses the issue of who is and who isn’t an agent. (For further discussion, see page 247, “Runners.”) Each state adopts the act with its own twists and modifications. As of 2010, half of the forty-two states that had enacted Uniform Athlete Agent acts had never issued a single penalty. Oversight and regulation must be federal—federally funded, federally overseen, federally enforced. If it’s a problem worthy of legislation—arguable in itself—then it’s a national problem, not a local or regional one.
SPARTA: Sports Agent Responsibility and Trust Act
SPARTA is a federal law that bars giving false information to a college athlete and providing anything of value to a player or person associated with the player prior to entering into a contract. SPARTA permits states and/or colleges to investigate, but the states are limited in funds and time, and the colleges are not quick to encourage investigations into activities that generate substantial revenue. Federal enforcement would require cooperation from states and colleges. Colleges have no drive to find bad news that results in punishment contrary to their own economic self-interest. To have meaningful enforcement, you have to have economic leverage. Follow the money. Apply pressure to those who stand to gain or lose.
The NCAA
The NCAA has oversight responsibility for college sports but it is composed of, and funded by, the member schools that collectively make the very rules the association is supposed to enforce. It shows favoritism toward some schools over others and it does not encourage schools to look into and correct problems.
Currently, if a school suspects a problem, and under SPARTA, pursues its rights to civil litigation against an offending party (i.e., agent), and during the discovery process uncovers more transgressions than the original, it puts itself in even greater potential jeopardy. The NCAA needs to grant some form of immunity—defining the scope of the issues or the time frame—similar to the way government prosecutors do, that limits the harm the school can do to itself while trying to uncover bad behavior.
If the NCAA wants to be effective in policing behavior (and that’s a big “if”), it should employ its economic leverage with the NFL. The NCAA, via college football, is the de facto minor league of pro football. The NFL depends on a steady flow of outstanding players and therefore stands to gain or lose the most from assuring or interrupting that flow. The threat of turning off the spigot will work. When a handful of college coaches stood up recently and said no to NFL access to practice fields, players, and games, the NFL paid attention, if only briefly. Roger Goodell condemned “bad behavior” that violates NCAA rules and exerted pressure on the NFLPA to, in turn, pressure their members not to break the rules.
And on the rare occasions when the NCAA actually does take action, the punishments must be consistent, not arbitrary, and not favoring one school over another. Why were the Ohio State players suspended for five games but allowed to play in the prestigious Sugar Bowl? Why, in the Reggie Bush incident, was USC deemed to have had a lack of institutional control—a harsh verdict—when UNC, having had coaches aware of and part of violations, was not found to have had the same lack of institutional control?
The NFLPA
The NFLPA licenses, reviews, oversees, and monitors agent behavior but as the players’ union, the NFLPA has no incentive to be more aggressive since its purpose is to bring the best players possible into the professional game and to get them paid as well as possible once they get there.
Again, if the NCAA wants to clean up conduct, they have to apply leverage where they have it: through economic influence on the NFL. If they restrict the NFL’s access to talented marquee players, the league can then put pressure on the NFLPA to police its agents more vigilantly, more evenly—and not just punish a few sacrificial lambs from time to time. The NFL and NFLPA’s combined economic leverage is far more compelling than any moral pressure, and far more efficient than any legal processes.
University Compliance Departments
Universities maintain compliance departments to self-monitor student-athlete conduct, including scholarships, academics, eligibility, personal issues, and other activities. But what they most focus on is educating players about the rules, chapter and verse on the specific regulations, what they can and cannot do. The plain fact is, most if not all the players know the central rule: You cannot accept anything of value. Period. It’s not that complicated. They get it.
But if we delude ourselves into thinking compliance departments can police athlete-agent-booster activity, we’ve already had a case of short-term amnesia on the Nevin Shapiro–University of Miami debauchery—the mansions, yachts, meals, liquor, strippers, parties, plane tickets, jewelry, car rims, hookers, yachts, and lots and lots of cash made available right under the noses of coaches, trainers, and compliance officers.
Between the shortfalls of scholarships, the adulation of fans and the media, the less–than–Boy Scout backgrounds of too many players (see below), and simply the temptation, players break the rules. If the compliance department drums those rules into the players, they can rationalize that they have done their jobs. And even if they want to be vigilant in monitoring and enforcing the rules, the departments are typically small and underfunded and, amazingly, they report to the athletic director and/or the coaches. In other words, they are supposed to police their own bosses.
Sports Illustrated and CBS News jointly investigated 2,837 players on the Sports Illustrated 2010 preseason rosters of the top twenty-five teams. Results: 204 players had criminal records. A total of 277 different offenses ranging from 105 for drugs and alcohol, 75 nuisance crimes, 56 violent crimes, and 41 property crimes. Digging further they found, among a 318-player sample from Florida plus 300 from other areas, 58 of the total arrests were for crimes committed while juveniles. In other words, 7 percent of the best players had criminal records and 21 percent of those were juvenile offenders. Is it a surprise they get in trouble when they get to college? Or that their behavior rubs off on other players? Is it a shock to find the compliance departments aren’t effective?
In cases like Miami, there’s a natural reaction to place the blame squarely on the shoulders of the university’s compliance staff, in this instance, Compliance Director David Reed. Before we make him responsible, though, ask who pays him, who he reports to, who he owes allegiance to—or, put another way, who decides if he has a job or not. It’s the university’s athletic department. And in a big sports school like Miami, the most powerful people in the athletic department are the head coaches of the football and basketball teams. Compliance works for the coaches. Conflict? Uh, yeah.
It’s against the self-interest of the compliance department to find wrongdoing. (If that sounds similar to the criticism of Wall Street compliance departments being paid by Wall Street firms, during the financial meltdown, it’s no coincidence.)
In my nearly twenty-year career, half of which was spent providing illegal benefits, I never once met or saw any compliance personnel. That is, until I was asked to participate in panel discussions at law schools around the country and speak at the NCAA regional rules seminars in fr
ont of hundreds of the Division I compliance staffers. They’re invisible … by design. Why didn’t I see them? They’re often housed in the bowels of the athletic department’s building, deep in the interior, with no windows to the practice fields or anywhere near the entrances to weight rooms or locker rooms. They literally don’t see the players or who the players come in contact with. Hear no evil, see no evil, speak no evil.
Miami’s David Reed is a member, and maybe a victim, of the same unrealistic structure as are all compliance personnel in college sports. One compliance officer I met at the NCAA Tampa Regional Rules Meeting told me when she was interviewed for her job, the head coach asked her, “Do you see your job more as firefighter or policeman?” Clearly the right answer to get and keep the job was “firefighter.” Contain the flames, stop the damage from spreading. But don’t be a cop; cops investigate. Compliance departments, in my cynical view, exist so the university can 1) say they have one, 2) claim to do their job, and 3) have someone to blame when the school is caught doing wrong.
Want a real solution—real change—instead of the next exposé? Don’t blame the compliance departments; change the system. Make them like Eliot Ness’s “Untouchables,” who busted the bootleggers—not local cops on the take, but G-men. Take compliance departments off the local—or school—payroll that can be easily corrupted and put them on an autonomous payroll of the NCAA. And by the way, they should give the compliance departments offices with windows to the practice field. NCAA oversight just might produce more vigilant compliance staffs and an atmosphere more conducive to rules enforcement as opposed to self-preservation.
Then the NCAA should drastically increase the severity of punishment, penalizing from the top down, not just the bottom up. That means the university president. If a school, team, players, or coaches are found to have violated NCAA regulations or state statutes, do not restrict the punishment to the players or coaches or compliance departments. Penalize the university president. Fine him or her on the first infraction. Fire him or her on the second infraction, along with the coach. Period.
One more thing: Offer rewards for whistle-blowers for bringing infractions to light.
Athletic departments will hate this recommendation—it’s a loss of power and an admission of failure—but it’s time that the NCAA member institutions acknowledge that the NCAA enforcement model reliant on self-monitoring by athletic departments has failed. Just ask Nevin Shapiro after his free-rein rampage at Miami. Like me, he never got caught. (If it weren’t for his Ponzi scheme, he might still be flaunting the rules.)
Agent Day
A lot of schools’ compliance departments set up Agent Day at the college. They invite any agent who wants to meet and talk to players, and any players who want to meet agents, to a room full of tables, chairs, notepads, and Gatorade. Each player-agent meeting is for a few minutes, then a buzzer goes off and the player moves to the next agent’s table. It’s speed-dating for agents and players. It’s fair, open, and totally worthless. First, it’s impossible to decide if you click with an agent in five minutes and vice versa. But more importantly, the agents who come aren’t the ones to worry about. It’s the ones who don’t come, who have already made contact with the players, or who will make it on their own, or through a well-placed runner. Agent Day is another way to look like they’re doing the right things—Hey, we invite the agents to meet the players under our supervision, totally transparently—a CYA for the college. My attitude was always, Agent Day is whatever day I can meet with a player.
The Junior Rule
The NCAA has no rules regarding contact between agents and players, only that the players, family, and friends can’t accept anything of value or enter into an agreement without risking their college eligibility.
The Junior Rule, as it’s known, came into being in 2007 at the urging of USC coach Pete Carroll with support from Executive Director of the NFLPA Gene Upshaw. Carroll was incensed over agents and runners pursuing his players in the aftermath of the stories of Reggie Bush receiving improper benefits. The rule prohibited agents from contacting players until January 18, or three days following the deadline to declare for the NFL draft. An unintended consequence was that a player therefore couldn’t get professional input on one of the most important decisions of his career. The rule was changed in 2009 to bar agents or their reps from player contact until the last regular season or conference championship game, or December 1, whichever date is later—not much of an improvement for the players. And instead of curbing the practices of agents, it has fueled the influence of uncertified agents, financial advisors, marketing reps, and runners, for their own benefit and as conduits to certified agents. It gave power to people the NFLPA can’t control. The Junior Rule is still broken. Until authorized agents are allowed contact with players, the rule will be flaunted. Agents will get to players one way or the other. Fix the rule or get rid of it.
Runners
Runners connect agents to players. But runners can no longer be defined in the casual street terms of the past—a friend of a player, teammate, roommate, cousin. Today anyone and everyone may be a runner—mother, father, girlfriend, college booster, financial advisor, minister, personal trainer, reps of high-profile training facilities, high school coach, junior college coach, and big-time college coach—anyone who stands to gain by making the connection. You can’t get most coaches to talk about the problem because they’re in the game. They’re there to win. But once they’re out, it’s a different story. In an ESPNLosAngels.com online feature, former coaches John Robinson of USC and Terry Donahue of UCLA talked about the problem candidly.
By Ramona Shelburne ESPNLosAngeles.com
OCTOBER 14, 2010
ROBINSON AND DONAHUE ADDRESS AGENTS
… Robinson and Donahue wanted to talk. Out loud, openly and honestly. About what has gone on, why it has gone on, and whether there is a solution or compromise.
“I don’t think there’s a coach in the country, unless he’s a liar, that’s going to say, ‘It never happened at my school, my kids wouldn’t do that,’ ” Robinson said. “There’s no way.”
… Robinson said he and his coaching staff were constantly on the lookout for agents’ “runners,” who would approach players after games and practices and offer them money. “Agents would give runners $100 [to give to players] so they could take their girl out for dinner that night,” he said. “They’d shake hands with them, and there’d be a $100 bill folded up. We used to try to identify who the runners are and then threaten ’em.”
It was, of course, a losing battle. All the warnings could go only so far, Robinson said.
Donahue said UCLA coaches and administrators spoke to players often about agents and what benefits they could not accept under NCAA rules. “We talked about it all the time,” Donahue said. “There wasn’t anybody that did anything out of ignorance. Everybody understood what was permitted, what wasn’t permitted. No one acted out of ignorance. I can guarantee you that.”
… Some of the meetings with players were heartbreaking. “That was one of the toughest things for me as a head coach, was the kid who was stressed for whatever reason,” Robinson said. “His girlfriend was pregnant, his parents were this or that, he had a car and couldn’t make the payment. He’d come to me and say, ‘What do I do, Coach?’ You were stuck. The only thing you could do is try to get him a job on the weekends or in the offseason. But then they made it so you couldn’t do that.
“Every coach who has ever coached has had a kid in his office that says, ‘Coach, I’m dying here,’ and you wind up giving him 100 bucks or letting him use your phone. I used to have a kid that would come into my office and he was so homesick that he’d start crying. I would dial his mom on the phone and he talked to her for 10 minutes and he’d say, ‘Oh, I’m OK now.’
“Well, that was a violation. But hell, I didn’t have any other solution.”
Ironically, maybe the most influential of all of the “runners” is the college coach.
> In the midst of another round of investigations into agent violations in the SEC, Nick Saban, the Alabama head coach, said, “The agents that do this—and I hate to say this, but how are they any better than a pimp?” But Saban, like other big-time college coaches, has his own agent and that agent will have unique access to his players. That agent can be in the coach’s office, in the locker room, on the field. The players see him, meet him, and see that the coach, often the most important authority figure in their lives, has given that agent his tacit stamp of approval.
Nick Saban’s agent is Jimmy Sexton, who also happens to represent high-profile college coaches Steve Spurrier (University of South Carolina), Houston Nutt (Ole Miss), and Tommy Tuberville (Texas Tech). According to an online article from Birmingham News writer Kevin Scarbinsky, “Sexton said he avoids talking to their players when he stops by practice to talk to Tuberville or Saban. And although he says representing a coach gives him “a good entrée to the player,” he balks at the notion that a coach “can hand-deliver you players.” Tuberville commented on Sexton pursuing players, “I tell him, ‘You can go after any guys we have. (But) you’re on your own unless they ask me.’ ” Oh, unless they ask him? Well, thank goodness, no problems there.
Players ask their coaches everything. How to run pass patterns, which workouts to do, if they can get more playing time, what it takes to get into the NFL, what to eat, how much to sleep, whether they can go home for the weekend, what time the team plane leaves. So, when it comes to a life decision like picking an agent, you think the player and coach won’t talk? And that coach decides if and when the player plays, determines how much national exposure he’ll get, and even comments to the media about his play after the game. Do you think the player wants to go against what his coach thinks is best? Let me answer all those questions with another question: Is it a coincidence that so many players at a given school happen to sign with the same agent or other agents at the same agency as their coach? At the Arizona NCAA meeting, I asked compliance people if they knew who their coach’s agent was. Most had never thought to find out.