Rachel Bachmann and Kevin Clark of the Wall Street Journal have an excellent article on the pro bono representation of college athletes. The money quote for our purposes is the statement from the NCAA about the interpretations that allows athletes to receive free legal services:
The association had determined “that outside agencies can provide pro bono legal services to student-athletes” under two conditions: that those agencies had represented other needy individuals in the past “not based on athletics criteria,” and if the athlete initiated contact with the lawyer.
Both of the conditions make sense given the rest of the NCAA rule book. Requiring the lawyer, firm, or agency to represent non-athletes satisfies the extra benefit rule, that these services are not given exclusively to athletes for no charge. And requiring that the athlete initiate contact makes it less likely that the athlete’s case is used to promote the lawyer’s for-profit activities.
Not only has the NCAA interpreted away issues with pro bono legal counsel, it also expressly allows legal representation paid for by boosters in some situations:
An institution may provide actual and necessary expenses to attend proceedings conducted by the institution, its athletics conference or the NCAA that relate to the student-athlete’s eligibility to participate in intercollegiate athletics or legal proceedings that result from the student-athlete’s involvement in athletics practice or competitive events. The cost of legal representation in such proceedings also may be provided by the institution (or a representative of its athletics interests).
Boosters are likely included here to avoid a conflict of interest. It is one thing for the institution to pay expenses for an athlete to fly to Indianapolis for an interview with the NCAA. It is another for the university to be paying for an athlete’s attorney when they might be on the other side of the case or the institution’s interests might not align with the athlete.
While the NCAA’s rules on legal counsel are much more forgiving than most people think, there is still work to be done here. The NCAA would save itself a lot of criticism by ensuring that any athlete who has to go through an NCAA proceeding has legal counsel. That means creating a “public defenders” office within the NCAA. Universities should also be expressly prohibited from providing for legal counsel for athletes when their eligibility is at stake. There is too much conflict of interest to allow schools to hold the purse strings of an athlete’s lawyer.
Then there is the thorny issue of what happens when an athlete’s lawyer takes off the traditional hats of counselor and advocate and puts on the cap of an agent. This was the crux of why the NCAA lost the Andrew Oliver case at trial. But the subsequent settlement meant there was never a final resolution to the question the case raised: whether licensed attorneys are essentially exempt from the NCAA’s agent rules.
The final odd fact about the NCAA’s legal counsel rules is how they interact with the ongoing O’Bannon case. Lawyers for the plaintiffs must add a current student-athlete as a named plaintiff, but are worried about NCAA retaliation and want assurances in writing. But the NCAA’s own rules allow a school or booster to pay the expenses for an athlete to participate in the case, even for the athlete’s personal legal counsel since the case arises out of “the student-athlete’s involvement in athletics practice or competitive events”. Even Kafka cannot come up with a situation where the NCAA allows a school to pay for an athlete’s legal expenses and representation, then punishes the athlete for participating in the case.