Savage had once pled not guilty to both charges for which he was accused: 1) Not registering as an athlete-agent in Alabama (felony); and 2) Initiating contact with a student-athlete (misdemeanor). The state of Alabama dropped the misdemeanor charge, but the felony charge remained.

When Savage failed to appear in court for a reduced charge on the felony count, a judge issued a writ of arrest. In response, Savage explained could not leave his home in Virginia due to health problems. The judge did not buy it, and Alabama’s Assistant Attorney General Don Valeska was very displeased. Valeska is not one to mess with. In the past, he has said, “At the appropriate time, one of these agents is going to go to jail because of a felony, but this one [Savage Jr.] we didn’t feel was the case based on the facts,” Valeska said. “We want the message to go out that nobody comes to Alabama without following the law and talks to college athletes about going pro.

Mike Trope, author of Necessary Roughness and former NFLPA agent has a quote that I always think about whenever I write about Alabama, and he happened to say it in reference to the Savage case – “[Don't] ever represent any player that is a resident or goes to school in the state of Alabama. I am not an agent anymore, but I wouldn’t do it.” Anyone who is not licensed as an athlete agent in Alabama and is currently recruiting student-athletes based in that state needs to remind themselves that they are putting their freedom at risk based on their actions.

NOTE: This article was written by Darren A. Heitner. Mr. Heitner is the Founder/CEO of Dynasty Athlete Representation, a sports agency based in the Florida. He is also the Founder/Chief Editor of SportsAgentBlog.com and EntertainmentAgentBlog.com. Mr. Heitner has been interviewed on numerous occasions by sports radio and television shows including CNN, and has written for sports publications such as ESPN.com. He received his Juris Doctor from the University of Florida and now practices Sports and Entertainment Law in Fort Lauderdale, Florida.  This Article is being used by permission of the Author.

No issue when they are negotiating a contract for Phillip Merling, a Miami Dolphins players, and Sexton/Dye are also Bill Parcells’ agents?  What about working on a deal for Calvin Pace or Tony Richardson while they have Rex Ryan as a client?  On top of the issues surrounding conflicts of representing both sides whoare at least some part of a negotiation, there are questions regarding coach
clients potentially giving preferential treatment to their agents’ clients over other agents clients and/or providing any type of help to their agents in the recruitment of new clientele.

These conflicts are not only a concern with SportsTrust Advisors.  Many other agencies represent NFL team executives, including head coaches, and NFL players.  This dual representation is currently permitted by the NFLPA as long as there is full disclosure of all entities represented to each client.  But should it be allowed in the future?

The NBA takes care of the aforementioned potential conflicts by forbidding agents from representing coaches and players.  The NFLPA should do its due diligence and seriously look into adopting similar regulations to root out conflicts of interest.

By Darren Heitner

Mr. Heitner is the Founder/CEO of Dynasty Athlete Representation, a sports agency based in the Florida. He is also the Founder/Chief Editor of SportsAgentBlog.com and EntertainmentAgentBlog.com. Mr. Heitner has been interviewed on numerous occasions by sports radio and television shows including CNN, and has written for sports publications such as ESPN.com. He received his Juris Doctor from the University of Florida.

Therefore, since we have so great a cloud of witnesses surrounding us, let us also lay aside every encumbrance and the sin which so easily entangles us, and let us run with endurance the race that is set before us. Hebrews 12:1 (NASB)

Excerpts from the Movie Chariots of Fire:

I want you to do more than just watch a race. I want you to take part in it. I want to compare faith to running in a race. It’s hard. It requires concentration of will, energy of soul. You experience elation when the winner breaks the tape. But how long does that last? Who am I to say, “Believe, have faith,” in the face of life’s realities? I would like to give you something more permanent, but I can only point the way. I have no formula for winning the race. Everyone runs in her own way, or his own way. And where does the power come from, to see the race to its end? From within. Jesus said, “Behold, the Kingdom of God is within you. If with all your hearts, you truly seek me, you shall ever surely find me.” If you commit yourself to the love of Christ, then that is how you run a straight race. I believe God made me for a purpose, but he also made me fast. And when I run I feel His pleasure. Run in God’s name and let the world stand back and in wonder.

Do you not know? Have you not heard? The Everlasting God, the Lord, the Creator of the ends of the earth does not become weary or tired. His understanding is inscrutable. He gives strength to the weary, and to him who lacks might He increases power. Though youths grow weary and tired, and vigorous young men stumble badly, yet those who wait for the Lord will gain new strength; they will mount up with wings like eagles, they will run and not get tired, they will walk and not become weary. Isaiah 40: 28-31 (NASB)

The State of Mississippi

To all who shall see these present, and greeting.  This is to certify that the governor of the State of Mississippi  authorized by the Mississippi Code of 1972 has awarded

The Mississippi Magnolia Metal

Lieutenant Colonel William H. Glover, Jr.

Mississippi State Guard

For outstanding service while serving on the assistance military committee in 2008-2009 He assisted the Mississippi National guard justice advocate office on numerous occasions ensuring soldier readiness in all types of legal matters His untiring efforts and devotion reflects great credit upon himself and the United States armed forces.

Period January 2 2008-October 20 2009

Given under my hand in the City of Jackson

This the first day of March 2010

By Darren Heitner [1] 

In only a little over a month from now, high school seniors, Junior College students, and Juniors and Seniors at 4-year Universities will be selected in the 2010 First-Year Player Draft.  The draft, which spans from June 7-9, consists of 50 rounds, including supplemental rounds, but teams do not have to use up all of their picks up to and through the 50th round.  That said, most teams do select players with each of their picks; however, many of the players selected will not end up signing a deal to play for the teams that select them.

Leverage is the name of the game, and high schoolers have a lot of it.  Their other options may include Junior College or attendance at a 4-year University.  If they select Junior College, they have the possibility of being drafted again four more times.  If a 4-year University is selected, they may be drafted after their Junior and Senior years.  Junior College players have the second most leverage.  They may be drafted after their 1st and/or 2nd year of JuCo play.  If they so choose, they can pass up signing with a professional team after their 2nd year of JuCo and sign with a 4-year University, starting as a Junior and still being draft eligible the following year.  4-year University Juniors have the leverage of coming back for their senior season, and 4-year University Seniors have little leverage when negotiating a deal with the teams that select them. That said, a very talented senior will earn more than a $1,000 bonus, based on the fact that the team wants to show good will towards someone who they hope will be a big contributor for their organization for years to come.

Talented high school seniors up to 4-year University Seniors should have an advisor helping them prior to, during, and after the First-Year Player Draft.  Every advisor has his own way of “pitching” a player on the services that he provides and explaining what separates him from the pack of other advisors hoping for a chance of giving the top player advice and earning a healthy commission in the process.  No matter what, the bulk of the advisor’s time is spent doing research – reviewing each team’s history in signing different types of players at various slots, understanding the rise of signing bonuses and salary increases at each slot over a period of time, gathering organizational depth charts to see team needs, etc.  Since the NCAA does not allow advisors to negotiate directly with teams (unless the advisor is working for a 4-year University Senior who no longer maintains student-athlete eligibility), the advisor must also spend quite a lot of time educating the player on how to handle negotiations with the scouts who are in the position to sign him.  The advisor should also educate the player on his various options, which include signing with the team or going to, or back to, school.  The hope is that the athlete’s gain from the advisor’s research and education will more than make up for the commissions paid to that advisor.  And if the advisor is generous, he may offer to reinvest some of his commissions back into the player, should the player sign the advisor as his agent after the player signs a professional contract.

June 7-9 will be a hectic time for advisors.  Their hope is that they end up on 2010’s version of this list.

Although, many athletes believe it is unfair to hold them to a higher standard of behavior; a survey conducted by the American Bible Society showed that athletes were considered important role models to 18.3% of the teens who participated in the survey. Whether an athlete accepts it or not, he or she is definitely seen as a role model to some children. [2]

Many sports writers say that athletes should not be role modes. “Spoiled-athlete syndrome begins early in sports socialization. From the time they could be picked out of a lineup because of their exceptional athletic ability, they’ve been pampered and catered to by coaches, classmates, teammates, family members and partners. As they get older, this becomes a pattern. Because they’re spoiled, they feel they aren’t accountable for their behaviors off the field. They’re so used to people looking the other way.” [3]

“The idea that people who make millions of dollars to play a game should be idolized by our youth today is a travesty. What are kids supposed to think when they see stories regarding steroid use among baseballs greatest sluggers, including Bonds, McGwire and Sosa. Is that the type of message that we should be sending. That you must do whatever is necessary to succeed, even if it means cheating, lying and hurting yourself in the process. More and more, high school athletes are taking the lead from professional athletes who are at the pinnacle of their respective sports, and more and more it is leading to disaster. Steroid use is at an all time high among high school seniors, a direct correlation to the mammoth statistics by superstar sluggers who cheated the game.” [4]

What does this Post have to do with Sports Law or Law in general? James Madison, the fourth president, known as “The Father of Our Constitution” made the following statement “We have staked the whole of all our political institutions upon the capacity of mankind for self-government, upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God.” [5]

Bobby Bowden, the venerable long­time coach of Florida State football com­mented a few years ago on the problem. He said. “So many kids now that I’m coaching that are coming up, they think no more of breaking the law than the man in the moon. Most of them don’t even know them. Some of them don’t even know the Ten Commandments. And they’re what I call ‘living in sin’ and don’t even know it. I sure appreciate my parents disciplining me and trying to teach me what was right at that early age.” [6]

Bowden was right about the fact that many young people have been brought up without knowing the Ten Commandments, but that does not give them-or us-a rea­son to ignore God’s commands. However, a missionary to Indonesia was trans­lating Scripture into the language of the people. As she did her work, she wondered if they would be able to comprehend the difference between right and wrong. So she asked the people to begin naming what they felt were the top rules for living. To her shock, these people, who had never even heard of the Bible, named the rules that we know as the Ten Commandments. [7]

When God codified those rules and etched them in stone for Moses, he was not making up new rules. He was simply put­ting down in writing what he had already put in every human heart.[8]

Aside from their unusual and gifted talent, professional athletes are usually people just like you and me. They experience the same family problems other people do, have to pay bills like we do, and basically have a home life, albeit usually a larger home than the rest of us have – a lifestyle that is similar to that of many middle-class Americans, although on a far-larger scale. Athletes come from different social and cultural backgrounds and are a reflection of those backgrounds, which are fundamentally based on family and education.[9]

Should we hold athletes to a higher standard? The Ten Commandments were not written just for them. Should not we all be role models for young people?

2 Role Models by Cheryl Weldon, http://cawworldwide.com/rolemodels.html  

3 Raina Kelley, They’re Not Role Models. Why we should stop worshiping athletes—unless they’re on the field. Newsweek, March 11, 2010 

4 Farzin Mojtabai, Athletes Negative Impact on Kids Exposes Societal Flaws, http://www.associatedcontent.com/article/26607/athletes_shouldnt_be_role_models.html?cat=40

5 James Madison, 1778 to the General Assembly of the State of Virginia

6 Sports Law Devotional Bible, Zondervan, 2002 

7 Id

8 Id

9 USA Today (Society for the Advancement of Education), 2001, by Gary Sailes

The Sports Agent Responsibility and Trust Act of 2004 (SPARTA) and the Uniform Athlete Agents Act (UAAA) have helped protect student-athletes and educational institutions against harmful acts by unscrupulous sports agents. Statutory regulations have come up short in enforcing agents’ duties to all athletes; however, and while aspects of agency law, the Racketeer Influenced and Corrupt Organizations (RICO) Act, players’ associations regulations, and various Bar Associations’ rules have helped fill some of the gaps, there continues to be a need for increased oversight over the sports agent profession. This article argues that student-athletes should have a statutory right to enforce the duties of sports agents, all sports agents should have to be licensed under a federal registration system, and that there is a need for a self-regulatory commission of sports agents to help weed out the unscrupulous agents who do not fulfill their duties in the representation and solicitation of any athlete.

I.          INTRODUCTION

Sparta is not merely the name of an ancient Greek city-state. In the United States, SPARTA is an acronym that stands for The Sports Agent Responsibility and Trust Act of 2004.[2] As of this paper’s date of completion, SPARTA is the sole federal statute that regulates sports agents (SPARTA refers to sports agents as “athlete agents”). While SPARTA is the only federal statutory regulation, forty-one states, Washington D.C., and the U.S. Virgin Islands have some form of state laws that regulate sports agents.[3] Washington D.C., the U.S. Virgin Islands, and thirty-eight of the forty-one states with sports agent regulatory laws have adopted the Uniform Athlete Agents Act (UAAA), or a variation thereof.[4] The UAAA is a model law enacted in 2000 and intended to create a uniform system of rules to regulate sports agent conduct in the recruiting of student-athletes to sign agency contracts.[5] Nine states and Puerto Rico are left without any state statutory regulations. For those states, SPARTA is not a strong enough regulation to enforce the duties of sports agents to athletes. A majority of the states and territories that have adopted the UAAA or their own separate state law to regulate sports agents are also not protecting all of their athletes. SPARTA and the UAAA are limited in focus. They only place duties on sports agents when they are either recruiting or signing student-athletes. Once the athletes no longer retain NCAA eligibility, SPARTA and the UAAA no longer apply. Sports agents continue to default on their duties to athletes due to a lack of a sufficient deterrent in all states. For the most part, statutory regulations do not provide sufficient power to the athletes to protect themselves; accordingly, current statutes are not the answer to enforcing the duties of sports agents. Student-athletes and professional athletes need a private statutory right of action against unscrupulous agents in addition to the rights listed in Parts I-V.

 II.         AGENCY LAW BASED DUTIES OF SPORTS AGENTS TO ATHLETES

A fiduciary relationship exists between a sports agent and an athlete upon the signing of an agency contract or Uniform Players Contract in a professional sports league.[6] The fiduciary relationship results from the manifestation of consent by the athlete to the agent that the agent will act on the athlete’s behalf and subject to the athlete’s control.[7] 

A sports agent has a duty to discover and disclose to his clients material information that is reasonably obtainable, unless the information is so clearly obvious and apparent to the athlete that, as a matter of law, the sports agent would not be negligent in failing to disclose it.[8] Athletes have a limited focus. Their main goal is to produce on the field, court, or similar venue, and to do whatever is necessary to reach peak performance. Athletes are not always aware of all events concerning their affairs outside of the field of play, and rely on their agents to provide assistance when necessary, including the disclosure of all information holding importance for the athletes. Not a month goes by without rampant allegations, fines, and suspensions regarding the use of performance enhancing drugs. Professional leagues provide and promote lists of banned substances, and agents have a duty to inform their clients of those banned substances before any abuse is committed.[9] A sports agent may receive short term monetary gain if his client takes a banned substance and receives a large contract based on excelled performance; however, that sports agent must subordinate his own interests in favor of his client’s, which includes longevity of success and avoiding trouble by adhering to banned substance policies.

 Agency law also requires that sports agents use care in acting on behalf of their athlete clients and expend reasonable efforts to provide material information to them.[10] This includes an agent’s responsibility to discuss terms with a client about an agreement between the client and a professional organization prior to engaging in a deal that binds the client with that organization. It also involves communication with a client in reference to endorsement or sponsorship opportunities before making any promises to a company wishing to acquire the rights to the client for a particular purpose. Additionally, a sports agent must not use his position or an athlete’s property to benefit himself or another entity, unless the athlete has given consent for the agent to do so. While working for IMG, sports agent Bill Henkel, secured a memorabilia deal for Pro Bowl running back, LaDanian Tomlinson.[11] Henkel received personal kickbacks worth up to twenty-five thousand dollars from the company hiring Tomlinson, without Tomlinson’s or IMG’s knowledge or ratification.[12] Henkel faced felony charges for commercial bribery and theft.[13] If a sports agent receives any type of commission for referring an athlete to a particular company for any type of service, that agent is benefitting from his athlete client’s status, and unless the client consents, the agent is violating a fiduciary duty.

SPARTA and the UAAA do nothing to enforce the duties of sports agents to their professional clients, and neither statutory regulation prescribes a certain method of enforcement for a violation of agency law. Instead, athletes who believe that sports agents do not abide by their fiduciary duties can raise a cause of action for breach of contract or negligent representation (in tort).[14] The statutory regulations of SPARTA and the UAAA deal exclusively with the recruiting and signing of student-athletes. Once the student-athlete label no longer applies, athletes must look outside of the statutory regulations to enforce the common law agency rules that bind sports agents to a fiduciary duty of care. Even while the student-athlete label applies, the statutory regulations do not empower the athletes to take any action themselves.

III.        STATUTORY REGULATION OF SPORTS AGENTS UNDER SPARTA

SPARTA (the Sports Agent Responsibility and Trust Act) only binds sports agents to a certain code of conduct regarding the recruiting and signing of student-athletes.[15] The word “student” precedes every mention of the word “athlete” in the definitions of “Agency contract” and “Athlete agent.”[16] Thus, SPARTA is very limited in its power to ensure that sports agents abide by their duties to all types of athletes.

There are three main sports agent duties embedded in SPARTA’s regulation of unfair and deceptive acts and practices in connection with the contact between a sports agent and a student athlete.[17] The duties are: 1) A duty to be truthful, 2) A duty of disclosure, and 3) A duty to refrain from “buying” an athlete.[18] The duty to be truthful may be found within §7802(a)(1)(A) and §7802(a)(3). §7802(a)(1)(A) prohibits a sports agent from giving a student-athlete false or misleading information. It also does not allow an agent to make a false promise or representation to a student-athlete. If a sports agent promises a college junior basketball player that he will be an NBA Draft Lottery Pick without any solid foundation for making that statement, the sports agent may be in violation of §7802(a)(1)(A). Mario Austin was a rising senior student-athlete at Mississippi State University when he signed with sports agent, Bill Duffy, which forced Austin to forego his remaining year of amateur eligibility.[19] After the Chicago Bulls selected Austin in the second round of the 2003 NBA Draft, Duffy advised Austin to sign with CSKA Moscow, a professional basketball team in Russia.[20] Austin claimed that Duffy misled Austin into leaving school early and traveling overseas to play for CSKA Moscow, but Austin eventually dropped the lawsuit.[21] If Duffy made false promises to Austin about his draft stock or the benefits of going abroad to Russia, Duffy could be held liable under §7802(a)(1)(A). §7802(a)(3) makes it unlawful for an agent to predate or postdate an agency contract. If a student-athlete signs with a sports agent, the agency contract is executed immediately and the student-athlete no longer retains his NCAA eligibility.[22] Circumvention of the execution of an agency contract on its proper date is illegal according to SPARTA.[23] 

§ 7802(a)(2) concerns the duty of disclosure. It promulgates that sports agents recruiting student-athletes must provide the athletes or their parents (if they are under the age of eighteen years-old) with a disclosure document containing a warning about the potential of losing NCAA eligibility following the signing of the document. The warning must be in boldface type and placed as close as possible to where the student-athlete or his parents sign the disclosure document. Additionally, the athletic director or another high-ranking entity at the student athlete’s institution must receive notification of the agreement immediately following the signing of the document. 

The last component is what I like to call the duty to refrain from “buying” an athlete. § 7802(a)(1)(B) prohibits a sports agent from giving anything of value to a student-athlete or anyone associated with him, until the student-athlete has signed an agency contract. Signing an agency contract voids any remaining NCAA eligibility that athlete had, anyway.[24] Sometimes, discovery of these gifts do not occur until after the athlete has used up all of his eligibility. Sports agents may still face penalties under SPARTA once the athlete is no longer a student. Former University of Southern California running back, Reggie Bush, received a great deal of financial assistance while in school. In total, Bush received upwards of $280,000 in cash, rent, and gifts from sports agents interested in having Bush as a client.[25] Investigations on this specific matter are still being conducted well into 2009. 

There are two ways to enforce the duties created by SPARTA: 1) State action taken by the state’s Attorney General on behalf of the residents of that attorney general’s state, or 2) Federal action taken by the Federal Trade Commission (FTC).[26] If the FTC institutes an action against a sports agent, SPARTA prohibits state Attorneys General from commencing an action against the same sports agent charged with violation of his duties to a student-athlete.[27] Under the Federal Trade Commission Act, a sports agent may receive punishment of up to $11,000 for violation of an unfair or deceptive act or practice, which many believe is not a sufficient consequence to deter the larger and more successful sports agents/agencies.[28] 

No fiduciary relationship exists when a sports agent is recruiting a student-athlete to sign an agency contract.[29] At that point, the athlete has not yet become a principal and the sports agent has not yet become his specific agent. Thus, SPARTA serves an important role in creating duties for sports agents with respect to their relationships with athletes before agency law would kick in to protect athletes. However, SPARTA has received criticism because of the limits it places on those who can take action if a sports agent does not live up to his duties.[30] If state Attorneys General or the FTC decides not to act on agents’ wrongdoings, injured student-athletes have no recourse under SPARTA. The key to the effectiveness of SPARTA is enforcement, and many critics point out that area, in particular, as the statute’s weakness. 

IV.        STATUTORY REGULATION OF SPORTS AGENTS UNDER THE UNIFORM ATHLETE AGENTS ACT (UAAA)

Nebraska became the thirty-eighth state to adopt the a version of the UAAA after it passed in the state’s Senate by a vote of 40-0.[31]The UAAA model law was created nine years ago, was endorsed by the drafters of SPARTA, and still has not yet been adopted by all fifty United States.[32] The last section of SPARTA encourages all states to pass the UAAA as an extra protection against unscrupulous sports agents, but even in states bound by SPARTA and the UAAA, many holes in the statutes’ coverage continue to exist. The UAAA still makes a noble effort at professionalizing the business of sports agents by instituting a registration requirement in the states that have adopted the Act.[33] Sports agents, whether they are employed by a corporation or serve as sole practitioners, must register with, and be certified by, any state in which they have established minimum contacts.[34] This includes states where a sports agent wishes to contact student-athletes and the state in which the sports agent resides. As with SPARTA, the UAAA is not concerned with the protection of professional athletes.[35] The only type of athlete protected by the statute is a student-athlete. Once an athlete no longer has any NCAA eligibility remaining, SPARTA and the UAAA are inapplicable to sports agents’ duties to athletes, and a sports agent may contact any non-student-athlete at will. 

The UAAA creates a duty of disclosure, much like SPARTA. SPARTA requires a disclosure document that warns student-athletes, in boldface type, about the potential loss of NCAA eligibility following the signing of the document. The UAAA requires a similar warning, in boldface and capital letters, attached to any agency contract between a student-athlete and sports agent.[36] Additionally, agency contracts are required to contain information regarding the type of fees the sports agent will charge the student-athlete, the amount of fees, names of unregistered agents receiving compensation, expenses that are reimbursable, services provided, and cancellation and notice requirements.[37] 

The UAAA also prohibits the “buying” of a student-athlete. If a sports agent gives any item of value to a student-athlete for the purpose of having that athlete sign an agency contract, the result may be criminal or civil penalties against the agent.[38] Thus, former NBPA certified agent, Josh Nochimson, could face criminal or civil penalties for funding lodging, transportation, and restaurant meals for former University of Connecticut Husky, Nate Miles, should Connecticut’s Department of Consumer Protection press charges.[39] The University of Connecticut could also bring a civil suit against Nochimson.

 In addition, the UAAA requires sports agents to register in a state in order to be granted permission to initiate communication with a student-athlete who attends classes at an educational institution within that state.[40] State registration fees range from twenty-dollars in the state of Arizona to two-thousand-five-hundred dollars in Delaware.[41] 

Alabama, the thirty-fourth state to adopt the UAAA, is particularly serious about enforcing its rules regarding sports agents. The state has shown that it is willing to charge sports agents with felonies if they violate any of the prohibitions or do not fulfill any or all of the requirements. In 2006, the state of Alabama charged Jason Goggins of Savage Sports Management with a Class C felony for initiating communication with former University of Alabama wide receiver, Tyrone Prothro, without proper registration and while Prothro was in school.[42] When filed, the case against Goggins was the eighth criminal case against sports agents in the state of Alabama.[43] In 2008, Savage Sports Management’s CEO, Raymond Lee Savage Jr., was arrested and taken into custody for action stemming from the same event.[44] Alabama charged Savage Jr. for merely telling Goggins to visit Prothro and paying for Goggins’ flight.[45] Alabama’s enforcement of its UAAA adopted sports agent law led one former NFLPA advisor to say, “[Don't] ever represent any player that is a resident or goes to school in the state of Alabama. I am not an agent anymore, but I wouldn’t do it.”[46] 

Alabama is one of many southeastern states that tend to take sports agent registration and licensing seriously. In 2006, Charles Taplin was arrested on Louisiana State University grounds for attempting to make contact with LSU student-athletes.[47] Taplin was not registered in the state of Louisiana. On the opposite end of the United States, a sports agent can be fined up to $25,000 for every day that he violates or fails to comply with Hawaii’s state regulations.[48] 

If a sports agent is in violation of agency law, the student-athlete may take action.[49] If there is a SPARTA violation, state Attorneys General or the FTC can step in and file against the unscrupulous sports agent.[50] In regards to the UAAA, the Secretaries of State of UAAA signatory states have the power to penalize sports agents for any violations of the Act (some UAAA states have given other state entities that power, as well).[51] In an effort to promote the unity of the Act, all other UAAA signatory states will respect a state enforcement agency’s decision to punish a sports agent.[52] Like SPARTA, the UAAA does not give the athlete, student or not, a statutory cause of action.[53]This means that while an athlete is a student, the student athlete has no method of enforcing a sports agent’s duties (as agency law would not yet be applicable). However, the UAAA does give a student-athlete the power to void a contract with a sports agent if the sports agent does not follow all UAAA requirements in the agency contract.[54] Thus, if the warning to student-athlete is positioned at the beginning of an agency contract instead of placed in close proximity to the signature of the student-athlete, the student-athlete may void that agency contract and the sports agent may not receive compensation for services rendered. 

The UAAA’s primary purpose is to protect educational institutions by creating a uniform code of rules and regulations. While student-athletes were a concern for the drafters of the UAAA, their primary goal was to protect educational institutions’ financial interests against the practices of unscrupulous agents who may jeopardize a student-athlete’s NCAA eligibility, and thereby hurt the educational institution’s sports program.[55] If a sports agent ignores NCAA and UAAA rules and regulations, it can lead to declaring a student-athlete ineligible, or result in an educational institution forfeiting funding.[56] Both consequences result in a negative financial consequence for that institution. This is specifically why the UAAA gives educational institutions a cause of action. 

V.         OTHER STATUTORY REGULATIONS OF SPORTS AGENTS

While SPARTA and the UAAA deal directly with sports agents and athletes, there are other non-sports related federal statutes that prescribe certain duties for sports agent conduct. For instance, the Racketeer Influenced and Corrupt Organizations (RICO) Act was applied in the case of U.S. v. Walters-Bloom, where sports agents Norby Walters and Lloyd Bloom were found to have provided student-athletes with money and went as far as to send letters to the NCAA on the student-athletes’ behalf.[57] Those letters claimed that the athletes were eligible to participate in NCAA competition when, in fact, they were not.[58] The court found a pattern of racketeering, but reversed a previous holding that stated the sports agents were guilty under the RICO Act.[59] The success rate in holding sports agents accountable by using the RICO Act has varied since the Walters-Bloom decision. 

VI.        NON-STATUTE BASED REGULATION OF SPORTS AGENTS

A recurring theme found throughout the statutes intended to bind sports agents to a particular code of conduct is that they do not do enough to deter unscrupulous conduct. Enforcement of the statutes is bare, and the statutes themselves are under-inclusive. Fortunately, for some professional athletes, other rules and regulations may protect them against sports agents who do not have their best interests in mind. 

Professional baseball, basketball, football, and hockey have players’ associations that declare regulations for all sports agents who wish to represent a professional athlete in the MLB, NBA, NFL, or NHL. The players associations are unions, and require sports agents to register as members and abide by their rules.[60] Sports agents are at the mercy of the unions’ Executive Committees and risk losing membership or being heavily fined, should they not adhere to the rules set forth by the individual associations. Each association’s regulations include sections that require an agent to be competent and ethical in his representation of the sport’s professional athletes.[61] At a minimum, each players’ association does a full background check on every sports agent who would like to gain entry as a certified advisor.[62] The background checks include researching past criminal convictions, bankruptcy filings, and fraud or embezzlement charges.[63]The unions reinforce the fact that the relationship between agent and athlete is fiduciary in nature, and even provide uniform contracts to sports agents as a base to work from when negotiating players’ deals with their respective teams. 

While the MLBPA, NBPA, NFLPA, and NHLPA act as a strong check to deter sports agents freely taking advantage of their clients, not all professional athletes play one of the “Big Four” sports. For athletes who are professional bowlers, for instance, there is no union or players’ association to make sure that sports agents have clean criminal records, or to prevent sports agents from engaging in activities that could create conflicts of interest. SPARTA and the UAAA do not apply, as professional bowlers are not student-athletes. 

Professional athletes who are not a part of a players’ association may have another protection, if their hired sports agents have passed a state bar. All lawyers, including attorney agents, must follow the Rules of Professional Conduct published by individual state bar associations. Most states have adopted the American Bar Association’s Model Rules of Professional Conduct (MRPC), or a variation of it. The MRPC has requirements of disclosure and truthfulness that are very similar to two of the three requirements in SPARTA.[64] SPARTA goes no further than protecting student-athletes, while the MRPC duplicates the same SPARTA duties to attorney-agents who represent professional athletes.[65] The MRPC may also limit the amount of money that an attorney-agent can charge in commission, as the agent can face prosecution for charging excessive fees under Rule 1.5 (the MLBPA and NHLPA have no cap, while the NFLPA has a limit of three percent and the NBPA has a limit of four percent).[66] 

VII.       WHAT STILL NEEDS TO BE DONE

In spite of the existence of SPARTA, the UAAA, and non-UAAA state statutes/ modified UAAA state statutes, sports agents continue to make news headlines for acting illegally or at least for acting without the best interests of their clients in mind. The predominant issue is that state Attorneys General, the FTC, Secretaries of State, and other entities given power through sports agent statutes rarely enforce the statutory regulations.[67] Additionally, non-attorney-agents who represent professional athletes may elude any penalties for defaulting on their duties, with the exception of potential action by a players’ association (if the athlete is a part of a players’ association), action by the player himself (based on agency law or a violation of RICO), or a state statute like California’s, which does include provisions concerning a sports agent’s relationship with professional athletes.[68] 

Student-athletes and professional athletes should both have means to enforce the duties of sports agents. Student-athletes risk their eligibility to participate in collegiate sports when an agent does not follow SPARTA or UAAA rules. This can lead to devastating results concerning a student-athlete’s future earning potential. Professional athletes are often high-wealth individuals who rely on sports agents to do whatever is necessary to increase their value. 

Regarding student-athletes, the UAAA and SPARTA, combined, allow federal action (through the FTC), state action (through the Secretaries of State and Attorneys General), and civil action taken by educational institutions (specifically permitted by the UAAA).[69] Omitted from the picture are the actual student-athletes, who have no recourse against an agent who does not follow a section of SPARTA or the UAAA. If none of the entities listed above take action against an unscrupulous agent, then the student-athlete is harmed while the sports agent continues his practice of taking advantage of student-athletes. In a few states, such as California, the statutes actually do provide for a private right of action rather than enforcement by a governmental entity.[70] This is hardly what drafters of SPARTA and the UAAA intended, but is the unfortunate result of the statutes’ provisions. The consequences of sports agents not following NCAA, SPARTA, and UAAA rules are far reaching. Educational institutions have a great deal at stake, including the number of scholarships they can offer to future incoming student-athletes. The student-athletes themselves can lose the remainder of their collegiate athletic eligibility if sports agents coerce them to sign agency contracts. 

One of the most prominent sports agents has come out and voiced his anger at the fact that there is no recourse for student-athletes who may lose their eligibility because of a sports agent’s actions. Scott Boras of Scott Boras Corp. believes that student-athletes should have the ability to recover a maximum of one-million dollars if they lose their eligibility due to a decision made by a sports agent.[71] Because the agent at this point in the relationship owes nothing to the student-athlete under agency law, the type of private statutory cause of action proposed by Boras may be necessary for student-athletes to protect their interests and to deter sports agents from conflicting with the rules. 

There are also problems with registration. All states that have adopted the UAAA have registration requirements for sports agents who wish to recruit student-athletes within their states. However, many sports agents fail to register in states in which they recruit, and there has been little enforcement of registration requirements by Secretaries of State.[72] Additionally, in the majority of states, there is no requirement that sports agents register if they plan on contacting or representing a non-student-athlete (a professional). In other professions, one must be qualified and certified before he is able to practice in those professions. Thus, some have called for a federal registration system required for all sports agents in all states.[73] This registration system would be mandatory for sports agents recruiting student-athletes and/or representing professional athletes. A prerequisite to a sports agent signing an agency contract with an athlete, student or professional, would be listing on the national registry. If unregistered, a sports agent would forfeit all commissions earned from the representation of any athletes. I believe that this system is practical and effective. It truly brings national uniformity to the registration process, holds all agents accountable no matter the state in which they reside or recruit, makes it affordable for smaller agents to register, and would protect all athletes. 

Another viable option may be self-regulation. In 1978, an organization titled, Association of Representatives of Professional Athletes (ARPA) formed as a self-regulation tool for the sports agent profession.[74] Before ARPA terminated in 1988, it grew to roughly four hundred members.[75] Organizations like ARPA in other professions have proved to serve a strong role in making sure its members fulfill their duties to those they represent. For instance, the American Bar Association (ABA) through the Model Rules of Professional Conduct (MRPC) promotes a code of ethics for lawyers to follow at all times. An organization such as ARPA could hold its members to the same type of code and punish those within its ranks who do not follow the rules, much like the ABA does to unscrupulous attorneys. 

Agency law and players’ associations have helped fill many of the gaps in SPARTA and the UAAA’s lack of regulations and enforcement, but sports agents continue to violate their duties to student and professional athletes, and are not deterred by the ineffective punishments under the status quo. Attorney-agents may be bound by a higher standard of care, but the ABA and state bar associations have yet to put their feet down on unscrupulous attorney-agents, as well. The landscape must change in order to protect athletes and make sports agents accountable for their actions. With the creation of a private statutory cause of action for student-athletes, the formation of a federal sports agent registration system, and the growth of a self-regulatory commission of sports agents, we can begin to enforce the duties that sports agents possess in the representation of athletes. 

[2] 15 U.S.C. §7801-7807 (2008). 

[3] See National Collegiate Athletic Association, Uniform Athlete Agents Act (UAAA) History and Status, 2009, http://www.ncaa.org/wps/ncaa?key=/ncaa/ncaa/legislation+and+governance/eligibility+and+recruiting/agents+and+amateurism/uaaa/history.html 

[4] Id 

[5] Id 

[6] Restatement (Third) of Agency, § 1.01 (2006). The athlete manifests assent to the agent to act on the athlete’s behalf and under the athlete’s control, and the agent consents so to act.

[7] Id

[8] Douglas v. Steele, 816 P.2d 586, 590 (Okla. Civ. App. 1991).

[9] See MAJOR LEAGUE BASEBALL’S JOINT DRUG PREVENTION AND TREATMENT PROGRAM, 2009, http://mlbplayers.mlb.com/pa/pdf/jda.pdf; List of Prohibited Substances, 2009, http://www.nflplayers.com/user/template.aspx?fmid=181&lmid=334&pid=0&type=n(The NFL’s prohibited substances and methods);(The NFL’s prohibited substances and methods); NBA Banned Substances, 2009, http://www.bizofbasketball.com/index.php?option=com_content&view=article&id=620&Itemid=75.

[10] Restatement (Third) of Agency, § 8.08 (2006).

[11] See Darren Heitner, Bill Henkel Is Looking For Some Positive Endorsements, 2007,

[12] Id

[13] Id

[14] Restatement (Second) of Agency, 400, 401 (1957)

[15] See 15 U.S.C. §7801 (2008). An athlete agent is someone who enters into a contract with a student-athlete, or directly or indirectly recruits or solicits a student-athlete to sign an agency contract.

[16] Id

[17] See 15 U.S.C. §7802 (2008).

[18] Id

[19] See Todd Kelly, Mississippi State’s Austin signs with agent, 2003,

[20] See Liz Mullen, Odd new twist in legal dispute over NBA pick Austin, 2004,

[21] Id

[22] See Overview of NCAA Bylaws Governing Athlete Agents, National Collegiate Athletic Association, http://www.ncaa.org/wps/ncaa?key=/ncaa/NCAA/Legislation+and+Governance/Eligibility+and+Recruiting/Agents+and+Amateurism/Uaaa/overview.html

[23] See supra note 17.

[24] See supra note 22, and accompanying text.

[25] See Charles Robinson & Jason Cole, Cash and carry, 2006, http://rivals.yahoo.com/ncaa/football/news?slug=ys-bushprobe&prov=yhoo&type=lgns. Gifts allegedly included weekly payments to Bush and his family, and funding for travel expenditures, clothing, car modifications, and living accommodations.

[26] See 15 U.S.C. §7803 (2008) (for a violation of the Federal Trade Commission Act); 15 U.S.C. §7804 (2008) (for a civil action on behalf of the residents of the State).

[27] Id.

[28] Id.

[29] See supra note 6, and accompanying text. During recruitment of a student-athlete, the agent may manifest assent to act as the student-athlete’s agent, but the student-athlete has not yet manifested assent to the agent that the agent act on the student-athlete’s behalf and subject to the student-athlete’s control.

[30] See Kenneth L. Shropshire & Timothy Davis, The Business of Sports Agents 163, (2002). Critics fault SPARTA for protecting educational institutions while giving student-athletes no cause of action if an agent engages in improper conduct.

[31] See Nebraska Uniform Athlete Agents Act,

[32] See supra note 22, and accompanying text; 15 U.S.C. §7807 (2008) (for SPARTA’s endorsement of the UAAA).

[33] See National Conference of Commissioners on Uniform State Laws, Uniform Athlete Agents Act, 2000, http://www.law.upenn.edu/bll/archives/ulc/uaaa/aaa1130.htm

[34] Id.

[35] Id.

[36] Id.

[37] See John Gray, Sports Agent’s Liability After SPARTA?, 6 Va. Sports & Ent. L.J. 141, 147 (2006).

[38] See supra note 33, and accompanying text.

[39] See Adrian Wojnarowski & Dan Wetzel, Probe: UConn violated NCAA rules, 2009,

[40] See supra note 33, and accompanying text. 

[41] See Registration and renewal fees, Arizona State Legislature, http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/15/01769.htm&Title=15&DocType=ARS; APPLICATION FOR ATHLETIC AGENT REGISTRATION, State of Delaware, http://www.dpr.delaware.gov/boards/athleticagent/documents/application.pdf.

[42] See Darren Heitner, Alabama is Serious about Agent Regulations, 2006,

[43] Id.

[44] See Darren Heitner, Alabama Looking To Make A Statement With Savage, 2008, http://www.sportsagentblog.com/2008/10/15/alabama-looking-to-make-a-statement-withsavage/.

[45] Id..

[46] See Darren Heitner, Don’t Represent Alabama Athletes?, 2008, http://www.sportsagentblog.com/2008/11/10/dont-represent-alabama-athletes/.

 http://www.lsureveille.com/news/lsupd-charges-agent-in-wca-1.1181259.

[47] See Kyle Whitfield, LSUPD charges ‘agent’ in WCA, 2008, http://www.lsureveille.com/news/lsupd-charges-agent-in-wca-1.1181259.

[48] [Chapter 481E] Uniform Athlete Agents, [§481E-16], http://hawaii.gov/dcca/areas/pvl/main/hrs/CHAPTER_481E.pdf

[49] See supra Part I.

[50] See supra note 26, and accompanying text. 

[51] See supra note 33, and accompanying text.

[52] Id.

[53] Id.

[54] Id.

[55] See Shropshire & Davis, supra note 30, at 149-55.

[56] See supra note 33, and accompanying text.

[57] United States v. Walters, 913 F.2d 388, 389 (7th Cir. 1990).

[58] Id.

[59] Id. at 393.

[60] See NBPA Agent Administration, NBA Player’s Association, , 1997, http://www.bizofbaseball.com/docs/MLBPARegsPlayerAgents.pdf; Agent Regulations, NFL Players Association, Regulations Governing Player AgentsMLBPA

[61] Id.

[62] Id.

[63] See Timothy Davis, Regulating the Athlete-Agent Industry: Intended and Unintended Consequences, 42 Williamette L. Rev. 781, 809 (2006).

[64] Model Rules of Prof’l Conduct R. 8.4 (2009).

[65] Id.

[66] Id. See also supra note 60.

[67] See Eric Willenbacher, Regulating Sports Agents: Why Current Federal and State Efforts Do not Deter the Unscrupulous Athlete-Agent and How a National Licensing System May Cure the Problem, 78 St. John’s L. Rev. 1225, 1235 (2004).

[68] See Cal. Business & Professional Code § 18895-897.9

[69] See supra Part II and III.

[70] See supra note 68, at 18897.8.

[71] See Willenbacher, supra note 67, at 1254.

[72] Id. at 1255.

[73] Id.

[74] See Shropshire & Davis, supra note 30, at 130.

[75] See Darren Heitner, Bringing Back ARPA, 2008, http://www.sportsagentblog.com/2008/10/09

Attorneys for Texas Tech to Question Mike Leach in Coach’s Lawsuit Against School

Mike Leach has been scheduled to answer questions under oath (a deposition) on Friday, March 12, according to Court documents, in the football coach’s lawsuit against Texas Tech. Leach, who currently lives with his family in Key West, Florida, is to give a video deposition beginning Friday at the offices of his Lubbock attorney, Ted Liggett.

Liggett declined to comment on the case Monday, but said Texas Tech Chancellor Kent Hance will be deposed the day before Leach and that depositions will be taken from Adam James and Craig James on Saturday.

Tech fired Leach on Dec. 30, two days after suspending him amid allegations that he mistreated a player, Adam James, who had a concussion. James, the son of ESPN analyst and former NFL player Craig James, said his coach twice ordered him to stand for hours while confined in a dark place during practice.

Leach has denied he mistreated receiver James and has implied that an $800,000 bonus he was to have received Dec. 31 was the reason he was fired. His lawsuit includes allegations of libel and slander and breach of contract.

Depositions and Discovery

Discovery is a fact-finding process that takes place after a lawsuit has been filed and before the trial of the matter. Discovery allows the parties in the case to prepare for trial and many times cases are settled after the parties and their attorneys see the strength and weaknesses of their case. Discovery is based upon the belief that a free exchange of information is more likely to help uncover the truth regarding the facts in issue.

Discovery pleadings generally consist of the following:

Requests for Production of Documents: These are written requests served on the opposing party’s attorney requesting that documents relevant to the case be produced for inspection and copying.

Requests for Admission:
These are requests from one party to another to admit facts that are not in dispute so that the evidence produced at trial will basically include matters that are in dispute. Honest and complete responses can shorten the trial.

Depositions:
These are statements of the parties or potential witnesses taken under oath by a court reporter. Depositions are usually taken by a private court reporter (i.e., one not employed by a court) in the office of one of the lawyers. Depositions are taken for several reasons which include:

• Basic evidence gathering;
• To have a record of the witness’s testimony so that the witness may be impeached if he/she deviates from that testimony at trial;
• Gives attorneys an opportunity to ask questions that they may not be allowed to ask at trial (the rules of evidence generally do not apply to depositions); and
• To have the testimony available as evidence in case the deponent is not available, for any lawful reason at the time of trial (this is especially important for a witness who is near death).

Courts are generally very liberal regarding what information is subject to discovery. It must be generally relevant in some way although, technically, courts will allow the parties to ask for “anything that is reasonably calculated to lead to discoverable evidence.”

During a deposition a witness is placed under oath and swears to tell the truth. The parties involved in the case will be represented by an attorney and that attorney will have an opportunity to question the witness (referred to as a deponent for deposition purposes). Depositions can be either video or audio recorded. After the completion of the deposition the court reporter will create a written transcript of the deposition. The transcript will be made available to all parties.

Liggett declined to comment on the case Monday, but said Texas Tech Chancellor Kent Hance will be deposed the day before Leach and that depositions will be taken from Adam James and Craig James on Saturday.

Tech fired Leach on Dec. 30, two days after suspending him amid allegations that he mistreated a player, Adam James, who had a concussion. James, the son of ESPN analyst and former NFL player Craig James, said his coach twice ordered him to stand for hours while confined in a dark place during practice.

Leach has denied he mistreated receiver James and has implied that an $800,000 bonus he was to have received Dec. 31 was the reason he was fired. His lawsuit includes allegations of libel and slander and breach of contract.

Depositions and Discovery

Discovery is a fact-finding process that takes place after a lawsuit has been filed and before the trial of the matter. Discovery allows the parties in the case to prepare for trial and many times cases are settled after the parties and their attorneys see the strength and weaknesses of their case. Discovery is based upon the belief that a free exchange of information is more likely to help uncover the truth regarding the facts in issue.

Discovery pleadings generally consist of the following:

Requests for Production of Documents: These are written requests served on the opposing party’s attorney requesting that documents relevant to the case be produced for inspection and copying.

Requests for Admission: These are requests from one party to another to admit facts that are not in dispute so that the evidence produced at trial will basically include matters that are in dispute.  Honest and complete responses can shorten the trial.

Depositions: These are statements of the parties or potential witnesses taken under oath by a court reporter.  Depositions are usually taken by a private court reporter (i.e., one not employed by a court) in the office of one of the lawyers.  Depositions are taken for several reasons which include:

• Basic evidence gathering;
• To have a record of the witness’s testimony so that the witness may be impeached if he/she deviates from that testimony at trial;
• Gives attorneys an opportunity to ask questions that they may not be allowed to ask at trial (the rules of evidence generally do not apply to depositions); and
• To have the testimony available as evidence in case the deponent is not available, for any lawful reason at the time of trial (this is especially important for a witness who is near death).

Courts are generally very liberal regarding what information is subject to discovery.  It must be generally relevant in some way although, technically, courts will allow the parties to ask for “anything that is reasonably calculated to lead to discoverable evidence.”

During a deposition a witness is placed under oath and swears to tell the truth. The parties involved in the case will be represented by an attorney and that attorney will have an opportunity to question the witness (referred to as a deponent for deposition purposes). Depositions can be either video or audio recorded. After the completion of the deposition the court reporter will create a written transcript of the deposition. The transcript will be made available to all parties.