Illegal Procedure

by Josh Luchs

  If, as Nick Saban says, agents are no better than pimps, let’s play out the analogy. What does that make the players and the coaches? Who are the johns and the hookers? Who’s getting screwed and who’s doing the screwing? I see a lot of hypocrisy and finger-pointing.

  The obvious solution is that agents who represent coaches should not be allowed to represent players currently on the same team.

  There is another twist to the attempts to crack down on runners of all types. Many state governments, as well as athletic governing bodies, are broadening the definition of “agent” to include runners, recruiters, financial advisors, brand managers, family, friends, and anyone who makes contact with a player for potential gain. The intention of this change is basically good. But the execution is flawed. Plenty of players who are supposedly taught the rules by their compliance departments will have trouble accepting the counterintuitive notion that a college booster is an agent, a roommate is an agent, a street runner is an agent, or a friend from the old neighborhood is an agent. Hey, I’m not an agent. I’m a fan. Class of eighty-nine! Players may understand they can’t take money from an agent, but why can’t they take something from an alum, or their cousin? The real solution would be to have two clear-cut legal definitions: 1) Agent: A person who has been certified by the NFLPA, credentialed, vetted, and approved. 2) Runners/Recruiters: Anyone who approaches a player for the purpose of establishing a relationship for gain or connecting a player to someone for gain. Without that clear definition and explanation, players have the excuse of not understanding, the excuse to give in to temptation, and there is the possibility of unintended consequences.

  Go back to the case of Willie Lyles, the former scout accused of taking $25,000 in exchange for information. Willie and I had an interesting conversation about the possible injustices that could result from a broadened definition of agent status. Remember, it was Willie who went public with his story, not someone else. Under a definition broadened to include runners, trainers, scouts, advisors, et alia, Willie’s actions could be construed as the actions of an “agent,” making him vulnerable to criminal prosecution. But he’s not an agent, and he shouldn’t be prosecuted like one. Not wanting to incriminate himself, he may not provide that information, thereby inadvertently letting University of Oregon, its coach Chip Kelly, and other athletic department personnel off the hook.

  Define agents and define runners and enforce the rules on both.

  Getting to Players

  So how do agents get to players with the Uniform Athlete Agent Act, SPARTA, compliance departments, and coaches trying to limit access? Easily.

  First of all, this supposedly protective body—the team itself—brands its players like cattle. You don’t have to know what the star running back looks like. You just have to know his jersey number. And since he’s a star, constantly on TV, you know. Number 22. Then you hang out near the athletic facilities or the practice field. Pretty soon a guy will walk up carrying a school-issued backpack with “22” stenciled on it. If you miss the backpack, he may be wearing sweats or shorts with the same “22” on them. As responsible parents today, we’re told not to send our kids to school with their names on their clothes or book bags because it makes it easier for predators to act like they know them. Predators around schoolkids are scary but, fortunately, uncommon. The type of predators who go after college athletes might not be quite as frightening but they’re everywhere—anyone and everyone who wants a piece of the athlete. Yet colleges label the players they’re trying to protect so agents can find them, talk to them, buy them lunch, and even give them cash. It doesn’t take a genius to fix that problem.

  Then there’s social networking—almost universal access—notably on Facebook and Twitter. That access is a lot harder to control. And thanks to “ghosting,” even people who don’t exist can get to almost anyone they want. Ghosting is a form of identity theft, or identity invention, whereby someone creates a name, background, and seemingly real person and uses that new personality to contact other people. Scam artists use it to try to get credit card and other financial information, for sexual contact, or just for harassment. For sports agents, it’s like a key to a player’s front door. If you want to learn all about a player, just create an identity for a sexy-looking girl, paste in some hot photos you can easily find on the Internet, and then “friend” the player. Chances are he’ll accept your friend request, and then you can go to his Facebook page and see his profile, photos, friend list, info, and start exchanging messages, pokes, even texts. The “you” that’s been created doesn’t even exist. But by the time that agent gets to campus, he knows everything there is to know about the player: where he hangs out, where he parties, who his friends are, his girlfriends, what kind of car he drives, the movies and music he likes, and lots of pictures so you know exactly what he looks like, with or without his jersey number. Social networking is like a GPS for an agent. It’s the modern version of “find the fat chick.”

  The NCAA, through officers like, Director of Agent, Gambling and Amateurism Activities Rachel Newman Baker, recognizes the problem but faces issues of free speech in efforts to control it. However, it would be possible for all players to agree that their college’s or university’s compliance department would have access as a “friend” to their Facebook page so that all communications were at least visible.

  This is a nice little list of fixes: federal enforcement of agent laws, NCAA pressure on the NFL and NFLPA, independent compliance departments not employed by colleges, restrictions on agents from representing both coaches and players at the same school, changing the Junior Rule, not issuing paraphernalia with player numbers, and monitoring social networking. Each may be effective at reducing certain types of infractions. But they are Band-Aids, not treatments for the disease. At best, they will modify behavior but not change it. There’s an old expression that the definition of insanity is when you do the same thing over and over but expect different results. That’s what we’ve done with college sports. If we want different results, we have to change the system.

  Changing the System

  To turn the old phrase around, if it’s broke, fix it. Stop patching it, face reality, and make real changes. Emancipate the athlete. Recognize the real value of the players in the economic model—the business—of college football; recognize that there would be no college football without star quarterbacks and wide receivers and blitzing linebackers, and reward the stars. Pay the players. The question is how.

  Realistic Scholarships

  The 2009 study by Ithaca College and the National College Players Association found that a typical “full-ride” scholarship for a Division I athlete actually left a shortfall. On average, student-athlete expenses, meaning tuition plus room and board, exceed the amount of the average scholarship by $2,951. With the schedule they keep in order to perform at the highest level in sports, how are the players supposed to get that money? Many cannot turn to their families. They’re restricted from working during the school year, and, in any case, they wouldn’t have time between workouts, games, and classes to hold down even a part-time job. So, they either live at a subsistence level or they find other ways, such as taking money from agents. I typically loaned guys $300 to $1,500 per month. Most of the loans we made would have filled the shortfall of the Ithaca study (not that that was my motivation; I just wanted to sign the players). There was simply a need and we conveniently filled it. If an athlete is getting a “full scholarship,” it should be full, not partial. Pell Grants and other programs that players could be taking advantage of are often not explained in easily understood terms and anyone who’s ever tried to fill out an application for a grant or student loan knows it’s not easy to navigate. There are some who argue that the amounts players receive is enough. But the player’s perception is reality. If he perceives that the need exists, it exists and he will try to fill it. There is no question that if the shortfall were removed, some of the violations would be eliminated.

  Of course, plent
y of players who take money from agents or boosters aren’t doing it just to cover expenses. Some do it out of greed, or just because it’s there for the taking. Increasing to true full scholarships will not be a deterrent. The greedy will always be willing to take the risk of being caught regardless of the consequences. Harsher penalties may slow them down, but they won’t stop them.

  South Carolina coach Steve Spurrier even got a group of other top coaches to propose they pay players $300 a game, out of their own pockets, to supplement players’ finances. But frankly, it’s a headline-making but impractical gesture. How many coaches could do it? How many would? Would the coach really pay, or would the school? Is it fair from coach to coach and school to school? And aren’t coaches being paid way too much if they can offer to pay every player on their team?

  What About the Value of Education?

  So, if you give true full rides, the athlete covers his expenses and gets a college education, right? Oh sure. The college football purists’ argument that the players are getting paid in the form of an education is almost laughable. The concept may be logical but it simply is not realistic. I didn’t need the experience of preparing players for the Wonderlic test to show that they may have received a degree (though more than 50 percent of the players don’t graduate), but clearly they did not get the education promised them. I could see it and hear it in every conversation. Too many players came into college uneducated and left the same way. Between player-friendly professors and “rogue tutors” (as in the UNC case), these institutions of higher learning too often fail to live up to their end of the bargain. The player’s academic schedule is usually built around the team schedule, a clear signal of priorities. Classes and study are to be fit in between practices, film study, workouts, team meetings, and anything else that affects on-the-field performance. School doesn’t come first. Or even second. For most players, it’s way down the list, if it’s on the list at all.

  Share the Wealth

  Big-time college sports programs make a lot of money from the sale of jerseys, shorts, hats, you name it, with the school name and the number of star players emblazoned on them. Reggie Bush made the number 5 jersey a top seller for USC. Cam Newton’s number 2 moved a lot of memorabilia for Auburn. Ohio State, Notre Dame, Texas, Michigan, Penn State, Miami, LSU, Oklahoma, Alabama, and others make a small fortune every year literally off the backs of their players. And the players who make those numbers famous get nothing. Why not give those star players a piece of every sale? You can argue that the support players, the linemen who protect Cam Newton or make a hole for Reggie Bush, are unsung heroes. But it’s the same way in the NFL, and anyway, that’s no reason to cut star players out of the revenue for their own accomplishments. The real problem is, only a handful of players are stars whose numbers sell. And the others still need to be treated fairly … or they remain vulnerable to money from other sources.

  How About Total Revenue?

  According to CNNMoney.com in 2010, the total take of the richest college football programs was over $1 billion, including all sources of income from tickets to jerseys to television broadcast rights. (The chart below highlights some of those programs.)

  Why not share the college’s total revenue with the players? Give the team a predetermined percentage of all income, with bonuses for championships and bowl games and being named to All-America teams. Let the teams divide it up among the players based on playing time, stats, or reaching individual goals. Or let them pay everyone the same amount. But let the players who are bringing in the money share the money.

  If college is the minor league of the NFL, then pay the minor league players just like baseball does. It would certainly be more fair than the current system. But it’s flawed, highly flawed. First, it tilts in favor of those schools that can draw big audiences. Notre Dame gets viewers whether they win or lose. Plenty of very good teams don’t. So, if they pay players based on what they take in, some schools will be able to pay more and get more good players. Sort of like the Yankees in baseball.

  But the biggest reason it won’t work is the colleges won’t let it work. They consider this money theirs. They’re used to getting it. Why would they be willing to give up even a portion of it? Unless all the college prospects in America decide to go on strike, they’re not getting a share of college football dollars.

  An Idea That Just Might Work

  Agent Loans

  Agents advance money to players now. It’s against the rules but it keeps happening, whether for need or greed or both. Why not do it aboveboard? With total transparency? Set up oversight and regulation. Establish interest rates, at or below market value. Provide standardized forms and loan agreements. Create a fair market system.

  Here’s how it could work:

  1. Any certified agent who wishes to participate could register to lend money to athletes.

  2. Interest rates would be set at or below market rates and published.

  3. The agent and player would be allowed to meet openly and freely to discuss the amounts, terms, and details. The Junior Rule would be abolished to allow for this. (As an NCAA-sanctioned program, it would prevent underage or high school kids from participation, plus investing in very young players is at best a long shot considering how greatly abilities change during those years.) Once agent and player arrive at an agreement, they would meet regularly, which would enable the agent to parcel out the funds on a piecemeal basis, rather than in a lump sum, and therefore simultaneously establish an ongoing relationship with the player.

  4. The agent and the marketplace would determine how much it would make sense to lend. If agent X determines that player Y is worth $10,000 a year—that is, that the player will earn enough once signed to a pro contract to repay that amount—then the agent can lend $10,000. If agent Z determines the player is worth more, say $15,000, then he can take the risk, like any lender, that the player will pay back more. It would truly be a free-market system.

  5. Notices of agent-player agreements would be posted in locker rooms to end or minimize locker-room runners from wooing players for agents. Everyone would know who each player was working with.

  6. The transaction would be a true business deal, a loan. The player would owe the money to the agent. If and when the player signed a pro deal, he would begin to repay the money on pre-agreed terms. It would protect all of the parties in the transaction.

  7. If the player’s career did not pan out, if he were not drafted or signed, then the agent would have made a bad investment without recourse.

  8. A player could openly switch agents if or when he determined that another agent offered him a better deal, or would simply be a better fit. Again, it would be the agent’s choice, based on his assessment of market value, whether to lend more or less. And the new agent would assume the liability for the loans from the previous agent. Postings would be made of the switch.

  9. The NCAA would retain paperwork on all transactions. And the NCAA would have access to agent phone and bank records, which they do not currently have, in order to track activities, movement of money, etc. This would allow for the equivalent of subpoena power for any requested documents; otherwise an agent would be immediately removed from participation in the loan program.

  10. This would remove the NFLPA from all agent oversight other than certification of agents.

  11. This system would be totally consistent with Title IX, often a stumbling block for new college sports legislation. Rather than favoring only the top sports, it could fuel any or all sports. If an agent determined that a soccer player could earn substantial money in the marketplace, he would be free to lend money to the soccer player. Or the hockey player. Or swimmer. Male and female athletes alike.

  Agent loans would be a totally transparent program with advantages over the current system, or nonsystem. The process would be out in the open, under the scrutiny of anyone who wanted to see it, instead of being done clandestinely, in dark bars, or at parties, or through street runners. It would provide for pay
back of the money. It would not be a gift or a pay-off, but a business deal. The player would agree to take the money, pay the money back, and work with that agent when he declared for the draft. The money could be given in varying amounts dependent upon the need and status of the individual players. Market value would determine what a player could borrow. Market value can change as the player’s performance and his ability to pay back changes when he turns pro. The agent would be taking the risk. The model does not provide one school an advantage in recruiting over another. It rewards the players. And players don’t have to take money from questionable people. In fact, under this system, why would they take money from unsavory characters? Everyone would know who is lending and who is borrowing.

  Why would the colleges go for it? Well, for one thing, there is already precedent for it. Players can now borrow against future earnings to buy disability insurance while playing in college. But most importantly, this new system of loans wouldn’t cost the colleges a dime. The money involved would be separate from the revenue the schools now take in from the sale of seats, jerseys, and bowl-game TV rights and adamantly do not want to give up or share. This would be the agents’ money.

  Will it happen? Doubtful in the short run. Some may view it as taking money from the bad guys. In fact, it’s a dose of reality. It’s already going on. But instead of doing it in the shadows, this would do it openly, legitimately, with a system, rules, and oversight. It could work. And what we have now does not work. That’s one thing everyone can agree on.

  POSTSCRIPT

  There are no easy solutions when games become big business. I grew up loving sports. Today, my feelings are more complicated. But I would still like to see things get better. I don’t regret being “on the outside.” I like it here. In 2010, I admitted to paying players and other questionable actions. Now, in this book, I’ve said even more about what I did and what I saw others do. I wanted to feel cleaner, feel better about myself, and be a better role model for my daughters.