SBJ/Nov. 1, 2010/This Week's Issue

Post-NCAA penalties may be new sticking point

What began as a combined effort by multiple sports organizations to stem the problem of agents paying college players could end up as another source of tension in the NFL labor talks. Last week, the league and the NFL Players Association were at odds over whether NFL players could be punished for what they did in college.

The proposal arose out of talks among the NFL, NFLPA and NCAA about the problem of agents paying players, but now could potentially be an issue at the bargaining table. The NFL collective-bargaining agreement expires March 3.

The proposal was first reported by ESPN early last week, in a story that quoted sources as saying that punishing NFL players was being talked about in “collaborative discussions” involving the NCAA, the union, the league and the American Football Coaches Association.

“The NFL has no power to
promulgate any new rule
regarding player discipline
without first bargaining over it
with the NFLPA. Moreover, any
such rule would violate the
terms of the existing CBA.”
Jeffrey Kessler
NFLPA Outside Counsel

The union objected to that, issuing a statement saying, “The NFLPA is opposed to any penalty being imposed upon a player in the NFL for conduct relating to the receipt of benefits in violation of NCAA rules while the player was in college.”

The NFL said that, although the league did not come up with the idea of disciplining NFL players for what they did in college, the proposal was still in play.

“It’s in the process of being discussed and considered,” said Greg Aiello, NFL senior vice president of public relations, in an e-mail. Whether the NFL needed the NFLPA’s agreement to impose the new penalty for NFL players was “under review,” he added.

The NFLPA strongly disagreed that the league could begin penalizing players in such cases.

“The NFL has no power to promulgate any new rule regarding player discipline without first bargaining over it with the NFLPA,” wrote Jeffrey Kessler, outside attorney for the NFLPA, in an e-mail. “Moreover, any such rule would violate the terms of the existing CBA and therefore could not be unilaterally decreed by the league.”

The NFL had no comment on Kessler’s remark.

The NCAA declined to confirm or deny whether it was responsible for proposing new punishments for NFL players for acts they committed in college. “This is a joint effort among all groups,” NCAA spokeswoman Stacey Osburn said in an e-mail. “The development of any post-NCAA penalty — such as a potential financial penalty — will be considered by the NFL and NFLPA and those groups will agree upon what is appropriate.”

Meanwhile, there is a division among people in the sports industry who represent athletes and defend their rights over whether the NFLPA should be involved with the NCAA’s efforts to enforce its rules in the first place.

A number of NFL agents support the NCAA’s crackdown, saying privately and publicly that they cannot compete with rival agents who break rules. NFL agents Rick Smith, Jimmy Sexton and Fletcher Smith, as well as NFLPA lawyer Arthur McAfee, are part of the group meeting with the NCAA.

But earlier this year, the NFLPA drew criticism publicly and privately from others for allowing the NCAA to send out a letter to more than 20 NFLPA-certified agents telling the agents that the union required them to meet with NCAA investigators. The letter, a copy of which was obtained by SportsBusiness Journal, was copied to Richard Berthelsen, the general counsel of the NFLPA.

Some said the NFLPA’s inclusion in the letter was against the union’s stated mission of protecting athletes’ rights. The NCAA has been sued by current and former student athletes challenging its rules on grounds including violation of antitrust laws.

George Atallah, NFLPA assistant executive director of external affairs, said, “We only cooperate with the NCAA where there is an overlap of rules and regulations.” The NFLPA regulations prohibit agents from providing inducements to players in order to sign them as clients and from engaging in actions that cause college football players to be declared ineligible to play NCAA football.

Not all of the agent community is on the same page when it comes to punishing players for violating NCAA rules. One, who declined to speak on the record, said he wanted to do something about “players with their hands out,” industry-speak for college players who ask agents for money and other things.

Most NFL agents interviewed for this story wanted other agents to be punished for violating NFLPA guidelines regarding the NCAA. But some of them questioned whether the proposal to punish NFL players would accomplish that. Most agents requested anonymity for fear of reprisals from the NFLPA or the NCAA.

But Peter Schaffer, one prominent NFL agent who was willing to speak publicly, said a regulation that would impose punishment on NFL players could prevent them from providing information about NCAA violations. “If you are going to fine the players, it is not going to act as a inducement; it is going to act as a deterrent,” he said. “And we want players to come forward.”

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