Potential Criminal & Civil Liability for Andre Smith & Agent

[Matt Breeden]

From Matt Breeden's SportsLawGuru.com

If you've read the sports page over the last few days you've undoubtedly heard about Alabama's suspension of star offensive tackle Andre Smith just days before the Sugar Bowl. While Alabama has not confirmed the reason for the suspension, it has been widely speculated that Smith had discussions with an agent regarding his future in the NFL. If true, such discussions are a big no-no in the eyes of the NCAA and are likely the reason for Smith's suspension. If you look around the internet you'll find all kinds of articles attacking Smith and wondering how in the world he could be so stupid as to talk to an agent a week before what would've likely been his final collegiate game. Afterall, all he had to do was play the final game and then he could have openly talked to any agent he wanted to. You'll also find a few articles discussing slimeball agents and how these types of things go on all the time and give agents such a bad name. One even went so far as to rank sports agents below personal injury attorneys with respect to slimeballyness....

There is, however, an angle to this story that hasn't really been discussed. That is the issue of potential civil and criminal liability for Smith and the, as-yet unknown, Agent. You see, Alabama is serious about its amateur sports and in order to maintain the legitimacy of its amateur sports it is has adopted the Alabama Uniform Athlete Agents Act (the "Act"). Essentially, the Act requires any agent doing business in Alabama to register with the state. It also contains certain restrictions upon the activities that an agent can and can't engage in. Alabama adopted its Act in the current form in 2001, and is one of approximately 30 states that have adopted similar acts.

For example, in addition to requiring the agent to register with the State, the Act states that an agent may not "(1) Give any materially false or misleading information or make a materially false promise or representation. (2) Furnish, directly or indirectly, any thing of value to a student-athlete before the student-athlete enters into the agency contract. (3) Furnish, directly or indirectly, any thing of value to any individual other than the student-athlete or another registered athlete agent." (Alabama Code § 8-26A-14(a)). It also goes on to state that a student-athlete may not, "(2) Accept anything from an athlete agent without first entering into a contract in conformity with this chapter." (Alabama Code § 8-26A-14(d)).

In addition to regulating the conduct of agents, the Alabama statute prescribes significant criminal penalties for both student-athletes and agents that do not follow the terms of the Act. Section 8-26a-15 of the Alabama code makes a violation of the Act by an agent a class B or C Felony, depending on the type of violation. Class B Felonies can carry a sentence of up to 20 years, while Class C convictions can be up to 10 years. Violations by student-athletes are Class C misdemeanors and carry a mandatory minimum sentence of 70 hours community service. While it is highly unlikely that a single incident would result in a 20 year prison sentence for an agent, the point is that Alabama clearly wasn't messing around when it created the Act. ...and they didn't stop there.

Alabama also provides civil remedies to universities who are harmed by the actions of the agent and student-athlete. Alabama Code § 8-26A-16(B) allows the university to recover "losses and expenses incurred because... the educational institution was injured by a violation of this chapter or was penalized, disqualified, or suspended from participation in athletics by a national association for the promotion and regulation of athletics, by an athletic conference, or by reasonable self-imposed disciplinary action taken to mitigate sanctions likely to be imposed by such an organization." So what does that mean? Well, it could mean a whole lot of things. Here's a likely scenario - suppose a university is sanctioned by the NCAA and is unable to compete in post-season bowl games the following year. That would also mean the university would have to forego all of the revenue that goes along with it, including TV revenue. Given the economic impact of college football bowl games, the result of such a sanction could clearly be measured in the millions of dollars. All of those damages can likely be traced back to the improper contact between the agent and student-athlete, and the agent and student-athlete could be sued by the university for all of the lost revenue! I sure hope the agent negotiated a big NFL signing bonus...

While the Andre Smith situation will likely not cause any direct harm to Alabama as they appear to be doing a good job of self-policing so that the NCAA doesn't have to step in, lessons can still be learned. There can be significant civil liabilities for student-athletes and agents who try to skirt the rules to get an unfair advantage. Time will tell if there will be any criminal charges brought in this matter. However, yesterday the Alabama Attorney General did say that they were investigating the matter. Given Alabama's track record, it certainly wouldn't surprise me if we see a criminal complaint once the identity of the agent is revealed.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.