Monday, 5 November 2012

The NCAA and Legal Ethics Rules

The paper I wrote for Santa Clara University's sports law symposium in September is posted on SSRN.  The paper is titled, The NCAA's Indirect Regulation of Lawyer-Agents: In Direct Conflict with the Model Rules of Professional Conduct, and here is the abstract:

The NCAA does not directly regulate lawyers but it does so indirectly by regulating the lawyer’s client in a manner that has an adverse effect on the lawyer’s representation of the client to the disadvantage of the client.  In this regard, I am referring to the ability of a high school or college athlete to make a fully informed decision whether to sign a professional contract.  NCAA rules not only place restrictions on their ability to “test the waters” but also to retain counsel and have counsel speak to, and negotiate with, club personnel on their behalf.  This paper addresses the following institutional barriers to ethical behavior: (1) NCAA restrictions that prohibit an athlete from (i) having a lawyer communicate or negotiate a contract with professional club personnel on the athlete's behalf (Bylaw and (ii) entering an agreement with a lawyer to perform such services (Bylaw 12.3.1), both of which limit a lawyer’s ability to effectively represent the interests of the client; and (2) the NCAA Eligibility Center’s Questionnaire sent to drafted baseball players in conjunction with the NCAA’s “Unethical Conduct” rule (Bylaw 10.1), which compels a lawyer’s client to divulge confidential information and communications related to the representation.  An important public policy question is whether a private association should be allowed to regulate the attorney-client relationship, particularly in ways that are in direct conflict with the Model Rules of Professional Conduct, when no state bar or state supreme court has given the association the power or authority to do so.

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