THE NEXT GREAT COLLEGE FOOTBALL SCANDAL: THE ETHICS OF COLLEGE FOOTBALL COACHES’ HAVING THE SAME AGENT AS THEIR PLAYERS

DAVID J. LISKO

If you look at the NFL’s first-round draft picks from the last five years, you will find that an inordinate number of them are represented by the very same agents who represent the Head Football Coach of the university at which the draft pick played college football. Is this ethical? Is it ethical for the Head Football Coach of a university to have an agent representing him, such as Jimmy Sexton of the Creative Artists Agency (“CAA”),* who also recruits and represents NFL-bound student-athletes coming out of that same university? What if the agent is also a lawyer? Does that matter?

Obviously, the situation would be highly unethical if there were any type of a kickback arrangement between the agent and the coach, such as if the coach were to receive free or reduced rate services from his agent in return for funneling his players to the agent; in so-doing, the coach would essentially be taking a cut of the commission the agent receives for negotiating the players’ contracts. In fact, if such an arrangement were discovered, the controversy would dwarf the allegations leveled against former Ohio State Head Football Coach Jim Tressel and make for the greatest college football scandal in recent memory, other than the Penn State University child abuse scandal, of course. Such a scandal would certainly lead to NCAA sanctions, numerous civil lawsuits, and, possibly, even criminal prosecutions. Further, even if a head football coach were merely giving his agent greater access to his players than other agents, that too would be highly unethical and, if discovered, would result in a robust scandal. To date, although speculation abounds, no such unethical arrangement has been discovered.

This speculation results, at least in part, from the fact that almost all major universities have ended their formal agent-student athlete interaction programs and yet most blue-chip NFL prospects sign with an agent the very day of their bowl game. This begs the question, have those athletes in fact known the agent for weeks or even months prior to that date and, if so, how? By ending their agent-student athletes interaction programs, universities made it impossible for any Certified NFL Agent to meet with a college football player or his family in-person without violating either state law or university rules. This meant that the only legal method of communicating with these players was to send letters through the universities’ athletic compliance departments to the players. This means that most first round draft picks are either meeting in-person and signing with their agent on the same day–the day after their bowl game–or some agents have access to meet in-person with these players prior to the expiration of their eligibility, and some don’t. If some do, then it is most certainly the same agents who are representing the college football head coaches because these are the very agents signing most first-round draft picks the day of their bowl game every year.

But, what if the coach is not getting a kickback or giving his agent unfair access to his players? Is it ever ethical for an agent of a head football coach to also recruit and represent the head football coach’s players? I believe it is never ethical and I believe the Rules of Professional Conduct and state laws support this belief. **

The Florida Rules of Professional Conduct state:

• Rule 4-1.7(b) A lawyer shall not represent a client if the lawyer’s exercise of independent judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyers own interest;
• Rule 4-7.4(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain; and
• Rule 4-8.4(c) A lawyer shall not engage in conduct involving dishonestly, fraud, deceit, or misrepresentation.***

Florida Statute 468.456(1)(e) states:

• Prohibited Acts.- (1) The following acts shall be grounds for the disciplinary actions provided for in subsection (3): (e) Accepting as a client a student athlete referred by and in exchange for any consideration made to an employee of or a coach for a college or university located in this state; and (f) Offering anything of value to any person to induce a student athlete to enter into an agreement by which the agent will represent the student athlete.

It is obvious that recruiting a safety from Stanford would be easier if he knew that you represented his coach. Automatically, he would: believe that you are competent, assume that you possess the same values as his coach, and accept that he can trust you because his coach trusts you. You must be different than most agents, who according to most college football coaches are untrustworthy fraudsters trying to take advantage of young athletes. Otherwise, the coach would not have hired you. There is no monetary value that can be put on this relationship but its value is obviously tremendous. It is easily great enough that, even if you work tirelessly to negotiate a coach’s contract for no charge, you will be paid back for that work if you are able to sign just one first-round draft pick from his team. Or, if you work at a lower rate than the typical lawyer who would negotiate the coach’s contract were he an executive, as opposed to a football coach, it would definitely be worthwhile. Basically, no matter what the agent is charging the coach to act as his agent, it is not enough because the relationship itself gives the agent an unavoidable windfall that has nothing to do with the work he actually does for the coach.

How much the head football coaches are paying their agents is unknown to the general public. However, an agent representing an NFL player in a contract negotiation typically earns a 3% commission for his or her work. If the head football coach is paying his agent anything less than 3% of the value of his contract, the question has to be asked: why?**** Why is the head football coach paying less for the services of an agent than an agent would charge his typical client or a lawyer would charge the coach (at the hourly rate a typical lawyer would charge for the CEO of a Fortune 300 company making $7,000,000 annually)? And, therein lies the problem—and the reason the relationship is unethical. The coach has an incentive to pay as little as possible for the services of his agent and the agent has an incentive to work at a reduced rate because he or she will be paid back by the players he or she is able to sign from the university (multiple times over).  This arrangement need not be spoken between the coach and the agent to be effective, it is, put simply, common sense and well known to every individual involved.

This unholy alliance should not be allowed to persist. An agent who represents college coaches can make a lot of money doing so and should not be permitted to “double dip” by representing both college coaches and that coach’s players. The state governments and/or the National Football League Players Association should forbid this practice through regulation because it is unethical.

For now, no lawyer should engage in the practice of providing services to both collegiate football coaches and the players coming out of the coach’s university of employment. Lawyers are held to a higher standard of ethics than the general public and the appearance of impropriety is so great the scenario should be avoided altogether. Lawyers must not be perceived by the general public to be getting a corrupt insider deal involving the person who in most cases is the highest paid public employee in the state (the head football coach of the state’s largest public university).

Negotiating an employment or marketing contract on behalf of an NFL player is a noble endeavor and legitimate employment. The same is true of negotiating an employment or marketing contract on behalf of a college football coach. CAA is a great company comprised of great individuals, some of which are my friends, and most university head football coaches are great men. However, when the same agent represents the head football coach of a university and recruits and represents players coming out of that university, something nefarious could easily occur and it appears unfair. It is thus proper to end this unethical situation now—before the next great college football scandal shows up on Sportscenter.

David J. Lisko is an Associate Attorney at Holland & Knight, LLP based out of its Tampa office. He is also a former Ohio State University football player and a Certified NFLPA Contract Advisor. http://www.hklaw.com/David-Lisko/.

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* In addition to representing a disparate proportion of first-round NFL draft picks every year, CAA represents half of the SEC’s head football coaches, Jimbo Fisher, Urban Meyer, numerous other college head coaches, NFL coaches, and even NCAA athletic directors. In January 2014, Sports Illustrated documented how deep the ties between Jimmy Sexton and college football programs around the country are. See http://www.si.com/college-football/2014/01/03/jimmy-sextoncollege-football. Sports Illustrated writer Pete Thamel even quoted former USC Head Football Coach (and current Alabama Offensive Coordinator) Lane Kiffin as saying that he wholeheartedly recommended Sexton to former USC quarterback Matt Barkley, who signed with CAA after playing football at USC under Coach Kiffin.

** The Florida Rules of Professional Conduct and Florida statute 468.456(1)(e) were chosen merely as examples and for no other particular reason. The state of Florida is not unique in the way it regulates lawyers or agents.

Additionally, I recently met with a legendary NFL Agent who told me that decades ago he had the opportunity to represent a prestigious college football coach and that he did not do it because he believed it would be unethical to represent a college football coach and to simultaneously recruit NFL prospects from the same university. Obviously, this man’s career as an NFL agent 4 was possibly not as fruitful as it could have been had he chosen to represent college coaches and players but at least he has the satisfaction of knowing he did what he believed to be ethical. I have extreme admiration for this individual.

*** While not all NFL agents are lawyers, many are, and those that are must abide by the rules of professional conduct. For those NFL Agents that are not licensed lawyers, many of them attended law school and they are still practicing law to an extent, by negotiating the terms of legal documents and therefore state bar associations should hold NFL agents, whether they are certified lawyers or not, to the same ethical standards for practicing lawyers.

**** NFL Agents receive 3% of their client’s NFL contract but often receive much higher commissions for marketing contracts. Thus, setting the bar at 3% is quite generous.