Over the next few weekends, many young hockey players, and parents, will be pressured into situations, which will forever limit their options of leveraging their hockey skills to receive an education.
Many players will be approached by agents and/or advisors and many will be not know the difference, or how it WILL change their opportunities for the future.
Both roles are important, but for different reasons.
If you use the services of an Agent…., or an unpaid Family Advisor, or an Advisor with whom your have an arrangement (verbal or in writing) to receive a commission based on possible future earnings, or if you have received anything of value from an Agent or an Advisor (such as a stick, skates, or clothing, a meal or transportation or training program or Camp), you have likely eliminated one of your most valuable options as a hockey player, moving forward.
“Everyday, I hear mis-statements by agents, and young players and parents who rely on such mis-statements, that I think it is time to set the record straight….”
In this article, I will discuss The Use of Agents by our young hockey players.
Over the past few years, it has become more common for players to receive the advice and use the services of a third party individual during their bantam and midget years, particularly if they are likely to be drafted in one of the Major Junior Leagues in Canada.
In my opinion, too many players and parents believe that they require the help of an agent / advisor to help prepare them for possible future decisions, negotiations, and promotion, and nothing further could be from the truth.
Do players require an agent or an advisor?
In most cases, I would say “NO”.
We constantly receive calls from families who believe that they need an agent/advisor, because someone else has suggested such, or they have been approached by a person hanging out at the dressing room doors, or in the stands at the local arena.
It has become a “status” thing, with players bragging about the fact that they have been approached by an Agent or an Advisor, at the beginning of their Midget career (or sooner). For coaches to allow or encourage such communications, is purely irresponsible, in my opinion, but it goes on all the time. Responsible coaches chase / shoo these folks away from their dressing room doors, and not allow vulnerable players be influenced by these individuals.
Often players and their families make a decision to use the services of a person who has been hanging out at the dressing room door talking to them (and 5-6 others on their team), because they feel pressure to talk to them.
That person is generally playing “a numbers game”, and is hoping that one of the 50-100 players they are “working with” (of the same birth year) may be able to play professional hockey. Soon after the next season gets under way, he begins to focus on the few players that might move on to play professional hockey, while he again begins to chase down the next crop of 15-16 year old players (and stops paying attention to 90% of the ones he agreed to work with the year before)…., and I suggest that the players who could most benefits from their advise and promotional services will be the ones who will not receive such.
I know, because I often get calls from 18-19 year old players who have found themselves suddenly “by themselves”, and their agent will not return their calls. By then, it is too late.
Players and families need to understand is that the moment that an Agent enters the picture, the player is no longer eligible to play hockey in the NCAA. I will say this one more time, so there is no misunderstanding….
“The moment that a player becomes associated with an Agent, he is no longer eligible to play in the NCAA….”IGNORANCE is NOT an excuse….
This is the type of article that I print each year (around this time) to try to ensure that young players and families do not make the most common mistake of all….
When I originally wrote this (similar) article, I researched and had many discussions with various officials within the NCAA to ensure that what I say is absolutely true, and that I do not mis-speak. Although much of this was originally written years ago, this article is as true today as it was back then (and likely more so).
I make some statements that I know will be controversial because many players and their families have been told the opposite by those whom they should be able to trust the most (their own advisors).
In completing my original research included in this article, I corresponded with the following Compliance Officers on this important issue; Ms. Amy Backus of Yale, Ms. Carly Parriseau of Boston College, Mr. Joel Ott of the University of Wisconsin-Madison, Mr. Kevin Beattie of Rensselaer Polytechnic Institute, and Ms. Amy Medrim Foster of Cornell. I have also had correspondence with Ms.Rachel Newman Baker, the Director of Agent, Gambling and Amateurism Activities with the NCAA in Indiana, and Mr. Chance Miller, the Assistant Director of the NCAA Division of Agent, Gambling and Amateurism Activities. In addition to the NCAA Agent, Gambling, and Amateurism Division, I had spoken to officials at the NCAA Eligibility Center.
In my original article, these individuals had verified that what I said was absolutely (100%) true.
In the past, I have often read in newspapers when major junior team officials have stated that a certain player’s agent has not yet confirmed whether they will play NCAA or Major Junior hockey. The fact that they have been using the services of an agent to negotiate with a CHL team will dictate where they will not play. They will likely never play NCAA hockey.
There is a substantial difference between a person acting as an Agent, as compared to the activities of a Family Advisor, and there are significant differences between the way that a young player must be represented and/or provided advice.
There are many fine lines that cannot be blurred, because the NCAA will always rule in a way that will preserve the integrity of their rules.
The sad truth is that many athletes who have used the services of agents / advisors, who believe that they still have NCAA eligibility, do not…..
I constantly hear of very good hockey players who believe that if they have verbal agreements with Agents, or agreements that require them not to pay their Agents/Advisors, that they still remain eligible for NCAA play. It is not true.
In fact, what originally really got me hot about this issue is the fact that a few Agents (and/or unpaid Advisors) have actually told players that if they pay an agent/advisor to help them, that it will be what messes up their eligibility, when just the opposite is true.
Just recently, I have been consulted about an individual in my local area, who is not a “practicing lawyer”, but who has a law degree (is not licensed to practice law), and who charges an annual fee for his advisory services. In addition to the annual fee, he enters an agreement with players to receive a percentage of any future professional earnings.
As a person who has a law degree, you would think that that individual would know how to read and understand written legislation. Unfortunately, because he tells people that he has a law degree,, people assume that he must know what is allowed, and that what he states is true. In fact, it is not true, and he is a liar.
For a man who professes to have the answers (and boasts that he has a law degree), assuming anything else would be unreasonable….. and he has been hanging around dressing room doors and making vulnerable kids believe he is legit.
Here is what the NCAA legislation states. “An individual shall be ineligible per Bylaw 12.3.1, if he or she enters into a verbal or written agreement with an agent for representation in future professional sports negotiations that are to take place after the individual has completed his or her eligibility in that sport.“
Further, the NCAA publishes a document known as the “Agent Guide” (whiich every advisor and/or agent should have read)…. and it states, “When you are interacting on a one-on-one basis with student-athletes and providing advice regarding their future, you are likely to be advising them (unless your discussions include an oral or written agreement to represent them now or in the future, even if you do not act upon that agreement). “The Guide, then goes on and states. “Forming an oral or written agreement to represent, now or in the future, a student-athlete with remaining eligibility will render the student-athlete ineligible.”
Fact: A person, who enters an agreement that includes a provision for future earnings with an athlete is regarded as an agent by the NCAA.
Fact: An athlete who enters an agreement (verbal or written) with an agent is ineligible for NCAA athletics.
Fact: A person who enters such an agreement with an athlete knows, or should have known, that such an agreement would make that athlete ineligible for NCAA play, and to say otherwise is a bold-faced lie.
Fact: A person who enters such an agreement with an athlete has done so, wanting to promote that athlete for professional play (hopefully), or to drop them as an undesirable, once that player shows no promise to produce a future income for the agent.
Fact: And for sure….. and make no mistake about it….. a person who has a law degree and does not take the time to read the very legislation under which he (and his clients must fall under) is negligent at best, and a sleeze-ball at worst.
A fiduciary relationship exists between a sports agent and an athlete upon the signing of an agency contract, or upon the entering of any agreement (verbal or in writing), based on future earnings.
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 in his/her best interests.
A sports agent (or someone who is regarded as one because of his activities) has a duty to discover and disclose to his clients material information, 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.
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.
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.
In my opinion, and (I’m sure) in most people’s mind the fact that a teenage hockey player would be unable to compete in future NCAA hockey would be a material fact that would need to be disclosed prior to the entering of such an agreement.
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.
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.
In the past 4 months, I have received a couple of dozen emails from various hockey academies and junior hockey programs, offering secret commissions to refer clients to them. I have gone so far as to respond and tell them that I would never send them a player under such circumstances, and that I take offense to such a suggestion. I know who is sending them players though. and those individuals are breaching their fiduciary duty.
In some areas of the United States, 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.
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. The duties are: 1) A duty to be truthful, 2) A duty of disclosure, and 3) A duty to refrain from “buying” an athlete.
In a March 16, 2016 Memo from Mark Hicks, Managing Director of Enforcement of the NCAA, and Kris Richardson, Director of Academic and Membership Affairs of the NCAA, they pose a question and answer…. .and here it is;
Q) “Am I allowed to have an agreement with an agent if it is for future representation?” A) “NO! You are not permitted to agree to a future representation agreement with an agent”
You May Not: Agree orally or in writing to be represented by an agent now or in the future after your eligibility is exhausted.
Under the By-laws of the NCAA, Section 12.3 Use of Agents, states;
12.3.1 General Rule.An individual shall be ineligible for participation in an intercollegiate sport, if he or she ever has agreed (orally or in writing) to be represented by an agent for the purpose of marketing his or her athletics ability or reputation in that sport. Further, an agency contract not specifically limited in writing to a sport
Section 188.8.131.52 Representation for Future Negotiations. An individual shall be ineligible per Bylaw 12.3.1, if he or she enters into a verbal or written agreement with an agent for representation in future professional sports negotiations that are to take place after the individual has completed his or her eligibility in that sport.
The NCAA also supports the Sports Agent Responsibility and Trust Act (SPARTA) as another viable tool, that can be used to combat the improper and illegal conduct of some athlete agents. A violation of this act is deemed an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act.
Because the potential loss of intercollegiate eligibility is a serious, and often unexpected, effect of entering an athlete-agent contract, this act provides student-athletes with a statutory right to cancel an agency contract within 14 days after the contract is signed without penalty. In addition, athlete-agent contracts subject to the act are required to disclose the amount and method of calculating the agent’s compensation, the name of any unregistered person receiving compensation because the athlete signed the agreement (such as a coach or runner) , a description of reimbursable expenses and services to be provided, as well as warnings disclosing the cancellation and notice requirements imposed under the act.
The potential loss of a student-athlete’s eligibility is also a serious concern for athletic programs at educational institutions. Accordingly, the act requires both the agent and the student-athlete to give notice of the contract to the athletic director of the affected educational institution within 72 hours of signing the agreement, or before the athlete’s next scheduled athletic event, whichever occurs first.
Where applicable, the agent must also provide this notice to a school where he or she has reasonable grounds to believe the athlete intends to enroll. The act would also provide educational institutions with a statutory right of action against an athlete agent or former student athlete (several, but not joint, liability) for damages, including losses and expenses incurred as a result of the educational institution being penalized, disqualified, or suspended from participation by an athletics association or conference, or as a result of reasonable self-imposed disciplinary actions taken to mitigate sanctions, as well as associated party costs and reasonable attorney’s fees.
Finally, the Act prohibits athlete agents from providing materially false or misleading information or making a materially false promise or representation with the intent of inducing a student athlete to enter into an agency contract, or from furnishing anything of value to a student athlete or another person before that athlete enters into an agency contract.
In the United States, where the use of agents is highly regulated, the act provides that an athlete agent may not intentionally initiate contact with a student athlete unless registered under this act, and may not refuse or willfully fail to retain or permit inspection of required records, fail to register where required, provide materially false or misleading information in an application for registration or renewal thereof, predate or postdate an agency contract, or fail to notify a student athlete (prior to signing) that signing an agency contract may make the student athlete ineligible to participate as a student athlete in that sport. The act would impose criminal penalties for violations of these prohibitions.
Unfortunately, no similar legislation exists in Canada, and if it did, many of these unscrupulous individuals would be held accountable, and they find that preying upon vulnerable athletes (who are not familiar with the NCAA) to be highly profitable.
Many 15 and year old players are heading into a Major Junior Draft in the Spring, and I think it is my responsibility to make this really clear…, if you are using the services of an agent or an advisor and you have not paid for such advice, or if an agent/advisor has negotiated in any way with any major junior (or any other) team that the NCAA regards as a professional team, or enter an agreement that will include any provision for future representation, you will be ineligible to ever play in the NCAA, regardless if you ever sign to play major junior, or not…., regardless if you observe the 48 hour rule…., and regardless if you ever play a major junior exhibition game or not….. because YOU have made a bad decision.
If you are using the services of an Agent (through a written or a verbal agreement), please do not embarrass yourself by making statements that you are still considering the NCAA option, as the decision to ever be eligible to play in the NCAA will have already been made for you because of your decision to not make yourself knowledgeable about the rules, or you have relied upon others who have provided bad advice.
I am aware of a 15 year old Canadian hockey player, who would have had a fabulous college career, and who has just entered an agreement with an NHLPA certified agent, who has told the family that so long as they did not enter a written agreement, the player will be fine (fine for what?).
That player will never play in the NHL, or likely ever receive a cent for professional hockey, but I know that he would have been able to leverage his hockey skills and other attributes to receive a free university education while playing NCAA hockey.
The agreement includes the possibility that the agent will get paid a commission based on future earnings, and that is what makes that player now ineligible to play NCAA hockey. It is a sad situation, and the player will only realize it when he plays his last game of Junior A or B hockey, but will never really know why he was never offered a college roster spot.
If I was that family, I would immediately begin to commence legal action against that individual for misleading me into believing that I still have NCAA eligibility.
For an agent (or an unpaid advisor) not to tell an athlete that by using their services they will be disqualified for NCAA eligibility, makes me believe that they have intentionally done so, and their errors and omissions or malpractice insurance carrier should be immediately notified.
For an agent (or unpaid advisor) to tell an athlete that their NCAA eligibility will be preserved by not entering a written agreement, or by entering an agreement that involves no payment of fees and/or for future representation, is an untruth (as best) and an intentional lie (at worst)….
Ask yourself….. “Can someone count on receiving (truly) independent advice of an Agent,/Advisor whose income is directly tied to having a player earn an income as a professional hockey player?”
For these individuals, it certainly could be argued that it would be preferable to have a player earning an income as a 20 year old, as opposed to a 24-25 year old (after a possible NCAA career that would include a certain amount of injury risk)…., and so will the player receive independent advice or will it be tainted by conflict?
Any player who has ever received a benefit from an Agent/Advisor, such as a hockey stick, a pair of skates, a free practice, or training camp (sometimes with professional players to make it more appealing), a free round of golf, clothes, a meal(s), transportation, etc. is also ineligible to ever play in the NCAA.
The NCAA has a full time staff of investigators whose job it is to check the backgrounds of all players, through the investigation of fact, fiction, and rumour.
Most people believe that they will never get caught.
To NCAA Investigators, other players and parents are great sources of information (and so am I, as I attempt to move my clients up on the watch lists).
As teenagers, players cannot contain the fact that they have spoken to an agent, or been given a free hockey stick because of their “supposed talent”, or been invited to a free training camp with high-end players…… and their egos always come back to haunt them. At some point in teh future, if they are possibly going to be given the opportunity to play NCAA hockey, their investigative process will uncover the truth.
In a previous article, have discussed the use of affidavits, as opposed to just the clearing house process. Refer to my recent article”, “A New Initiative That Will Be A Game Changer” for additional information. This will be an interesting initiative that will affect many players in the future.
As an elite athlete, one must always be aware of the things that are going on around you…
Hockey is a very small world, and in Canada (especially) where few people know the exact NCAA rules, there are rules broken everyday, which have made players ineligible to play hockey at the NCAA college level.
Have you seen the movie, “The Blind Side”?
It briefly depicts the extent to which the NCAA will pursue possible infringements of their rules…, and to what extent they will be “picky”…..
A number of years ago, I spoke to a father who believed that his son would eventually play NCAA College Hockey in the United States. What he did not know was that his son’s midget coach had arranged a meeting between an agent and a few of his top players, and they all agreed that he could work with them (as an unpaid advisor), which made them all ineligible to play NCAA hockey.
I know because I have spoken to NCAA coaches about two of those players’ situations,. Those players and their families would have had no way of knowing that they had already been removed from the watch lists by college coaches.
A few of those players had received free dryland training sessions and had been on the ice with a few high-end players, at no cost to them. Accepting these gifts (not to mention a few free hockey sticks), ruined at least one college hopeful player and the several hundred thousand dollar athletic scholarship that he would have been provided.
These players, who were in grade 10, were all drafted in a major junior draft that year.
Of the five players, one played one major junior exhibition game, one played one regular season major junior game, two attended camps but left within 48 hours, and one did not attend. All five were later ruled ineligible to play College Hockey because of the company they kept.
In my opinion, all five players could have received scholarships towards their post-secondary educations while playing college hockey. One is presently in University, four are not attending school, nor are they employed.
One player had earlier been presented an opportunity to attend a New England Prep School for two years to play hockey prior to (hopefully) playing NCAA hockey.
The Agent (who referred to himself an unpaid Family Advisor) had simply answered some enquiries on the players behalf from major junior teams, and so there was no question that the player had enrolled the services of an Agent (according to the definitions of the NCAA)…. He also spent hours tweeting about the player and promoting them as future hockey stars (another NCAA infraction).
Those player were disqualified from ever being able to play College Hockey.
Because the prep school would not allow players to play hockey who were ineligible to eventually play NCAA hockey, his prep school offer was withdrawn.
At the time that the agent began making simple enquiries on behalf of this player with major junior teams (defined as professional teams, by the NCAA), and the moment that person undertook any activities at no cost (with the understanding that the player would only pay based on future earnings as a hockey player), the player became ineligible for NCAA play.
Those players became ineligible because of 3 different infractions of the rules, which the players would have simply seen as nice gestures by someone “who said he could be of assistance…..” or as I often refer to most of them as “Wolves in Sheep’s clothing”
Rachel Newman Baker (the NCAA Director of Agent, Gambling and Amateurism Activities) and Steve Mallonee (the NCAA Managing Director of Academic and Membership Affairs/Division I Governance Liaison), state “If you receive assistance from an advisor, you must compensate the advisor in an amount equal to the value of the services he or she provides you; furthermore, you may not receive such services at a free or reduced rate without jeopardizing your eligibility, regardless of whether the advisor does not typically charge clients for such services.”
Most parents of elite hockey players have heard of the “48 Hour Rule”. It is amazing, that most players know of this rule, but by the time any player ever has an opportunity to consider that rule, they are already disqualified from ever playing because of other infractions. The rule book is not just one line (48 hour rule), but rather consists of volumes of compliance issues. Those who are in charge of ensuring eligibility of players make up several departments of the NCAA.
We have often heard of the fact that agents are able to achieve great packages for their young players because they play the NCAA card. However, GMs of major junior teams know that players who use agents (regardless of what they call themselves) will not have that option available to them.
Given that players and families regularly forfeit hundreds of thousands of dollars in education money by making a poor decision, if you are considering using the services of an unpaid advisor, you are likely overpaying.
“Let the buyer beware….”
Sincerely,David MacDonald, SPAD
Hockey Family Advisor