TRUST: THE ATHLETE-COACH-INSTITUTION-FIDUCIARY RELATIONSHIP

Today’s Youth, College and Olympic Athletes are extremely vulnerable, because of the Power Gap that exists between them and the Coach, the College and/or an Olympic Team.

Institutions of Higher Learning and their Governing Boards are responsible “for athletics policy and oversight and must fulfill this fiduciary responsibility. The board must act decisively to uphold the integrity of the athletics program and its alignment with the academic mission of the institution. The board must educate itself about its policy role and oversight of intercollegiate athletics.” [Clemson University President James F. Barker of the Intercollegiate Athletics Project Group, advised The Association of Governing Boards of Universities and Colleges (AGB) at Knight Commission on Intercollegiate Athletics (KCIA) meeting in Washington about the report presented by Richard D. Legon, AGB president, and John T. Casteen, president emeritus of the University of Virginia and director of the project.]

An Excellent Example: “PRINCIPLE – PROLOGUE/CREED OF AVCA
As a member of the American Volleyball Coaches Association (AVCA), I am committed to sound educational processes, establishing traditions and promoting values for my volleyball community. I am dedicated to advancing the welfare of those who seek my assistance and to the maintenance of high standards of professional conduct and competence. I am accountable for all of my actions and to this Code of Ethics, and my acceptance of this fiduciary responsibility is expressed in all of my personal and professional relationships in that coaching may involve my direction of youth, adolescent or adult teams. I will follow these principles in all environments and abide by them completely when coaching.

The Code of Ethics is a condition of membership in the AVCA. All members will be provided a copy of the Code as part of their membership application. To qualify for membership, an applicant must sign a statement acknowledging having read the Code and subscribing to the principles of the Code.  [American Volleyball Coaches Association, Code of Ethics, 2365 Harrodsburg Road, Suite A325 Lexington, KY 40504]

Comparing and contrasting the Ancient Olympic Athlete and the Ancient Roman Gladiator helps place this concept in perspective.

“The Olympic Games reached their Zenith in the 6th and 5th centuries BC. The Olympic Games program now consists of 26 sports, 30 disciplines and nearly 300 events.”[Wikipedia]

“The ancient Olympics were based on a philosophy of balance between physical + athletic and spiritual + moral development that was a cornerstone of Greek democracy.”

“The Olympic games became a link, a bond between people of a common blood. The Games were seen as a way of fostering friendship among the warring Greek city-states with the aim of forming a nation.”

“The ‘Athletic Ideal’ was the motivation behind the original Olympic Games in ancient Greece. The “Athletic Ideal” is the primary legacy of the Olympic games. It is an ideology and legacy unique in the history of the world.”

“The goal of the ‘Athletic Ideal’ was ‘a healthy mind in a healthy body’. The ancient Greeks believed that the development of the mind, spirit, and body were linked, and that a well-educated person was instructed in all areas. An athletic victory was considered a credit to both the athlete’s physical and moral virtues. Physical training was valued for its role in the development of such qualities as endurance and patience.”

“The motivation was the development of a disciplined, devout, virtuous citizen of the democracy. The philosophy was that the success of self-government (democracy) depended on the moral character of the citizenry. This was a large part of the motivation for the combined athletic + moral training.”

“This goal demanded a holistic training of mind, body, and spirit. In ancient Greece athletics were an everyday part of all areas of life religion, education, society, the arts, and politics.

Physical disciplines wove themselves into the very fabric of society, leaving no area untouched. This phenomenon is completely unique in world history. Ancient Greece was the birthplace of this ideology, the Athletic Ideal.” [OLYMPIC-LEGACY.com]

All Ancient Olympic Athletes were required to take an oath that they would observe all the rules and standards for Olympic Participation. In spite of the luxurious facilities offered to athletes, all had to remain amateurs. [Origin and History of the Olympic Games From Grolier On line’s New Book of Knowledge]

Ancient Olympic Athletes were treated well. They had entourages, trainers, coaches, and masseuses. Top athletes in antiquity were equivalent to modern day NBA stars. [The Ancient Olympics, by Howard Nowes, 11/19/2004]

Ancient Olympic Athletes certainly were not victims of Athlete Abuse. They were protected and revered not maltreated. Ancient Olympic Athletes were not vulnerable. Today’s NBA Stars are well treated and not abused by Coaches and other members of the Athletic Community, because they are not vulnerable. Similar to Ancient Olympic Athletes prestige, they have the wealth and power to reject maltreatment.

The Greecian Olympic Athletic Ideal is contrasted to the Ancient Roman Gladiators .

“Life was cheap during Roman times, and no one knew that better than gladiators – men pitted against one another in fights to the death for the viewing pleasure of both society’s elite and the masses.

Since Roman times gladiators and athletes have fought to the death and competed to the bitter end for societies’ elite and the fans.

Gladiators in ancient times lived and died by the impulses and fancies of their more powerful leaders. Even when they were victorious on the battlefield, all they won was the chance to fight and hopefully survive for another day.

College Athletes today face the same predicament.  [NCAA Sacked with Lawsuit Aligning conspiracy and Ant-Competitive Scholarship Practices, Steve Berman, Oct 26, 2010 Seattle PI]

“Gladiators of ancient times lived and died by the whims of those more powerful than themselves and even when victorious on the battlefield, all they ever really won was the chance to fight – and maybe survive – another day.[ NCAA Sacked with Lawsuit Alleging Conspiracy and Anti-competitive Scholarship Practices, by Steve Berman, Hagens Berman Oct. 26, 2010]

Gladiators were named after the Roman sword called the gladius. Gladiators were mostly individuals who were condemned criminals, prisoners of war and slaves. They had no Freedom. Some gladiators were volunteers (mostly freedmen or very low classes of freeborn men) who chose to take on the status of a slave for the monetary rewards or the fame and excitement.”

“Anyone who became a gladiator was automatically infamis, beneath the law and by definition not a respectable citizen.

All gladiators swore a solemn oath (sacramentum gladiatorium), similar to that sworn by the legionary but much more dire: “I will endure to be burned, to be bound, to be beaten, and to be killed by the sword” (uri, vinciri, verberari, ferroque necari, Petronius Satyricon 117).

“The gladiator, by his oath, transforms what had originally been an involuntary act to a voluntary one, and so, at the very moment that he becomes a slave condemned to death, he becomes a free agent and a man with honor to uphold” (The Sorrows of the Ancient Romans: The Gladiator and the Monster [Princeton University Press, 1993] 15).

Trained gladiators had the possibility of surviving and even thriving. Some gladiators did not fight more than two or three times a year, and the best of them became popular heroes (appearing often on graffiti, for example: “Celadus the Thraex is the heart-throb of the girls”). Skilled fighters might win a good deal of money and the wooden sword (rudis) that symbolized their freedom. Freed gladiators could continue to fight for money, but they often became trainers in the gladiatorial schools or free-lance bodyguards for the wealthy.

The manager of a gladiatorial troupe provided lengthy and demanding training in schools especially designed for this purpose and usually located near the great amphitheaters. During the imperial period all the gladiatorial schools in Rome were under the direct control of the emperor. [Gladiatorial Games, Belorussian Translation by Bohdan Zograf, Barbara F. McManus, The College of New Rochelle]

“Today’s college athletes face a similar dilemma. Though often lavished with adulation by college coaches and fans due to their extraordinary physical gifts, student-athletes are vulnerable, able to be cast aside like damaged goods due to injury or some other external circumstance beyond their control. [NCAA Sacked with Lawsuit Aligning conspiracy and Ant-Competitive Scholarship Practices, Steve Berman, Oct 26, 2010 Seattle PI]

Since Roman times gladiators and athletes have fought to the death and competed to the bitter end for societies’ elite rulers and the fans.

Gladiators in ancient times lived and died by the impulses and fancies of their more powerful leaders. Even when they were victorious on the battlefield, all they won was the chance to fight and hopefully survive for another day.

Many Youth, College and Olympic Athletes today face the same predicament as Gladiators. They are not like their Ancient Olympic counterparts.
[NCAA Sacked with Lawsuit Aligning conspiracy and Ant-Competitive Scholarship Practices, Steve Berman, Oct 26, 2010 Seattle PI]

“A fiduciary duty (from Latin fiduciarius, meaning “(holding) in trust”; from fides, meaning “faith”, and fiducia, meaning “trust”) is a legal or ethical relationship of confidence or trust regarding the management of money or property between two or more parties, most commonly a fiduciary and a principal.”

“In a fiduciary relation one person, in a position of vulnerability, justifiably places confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests,” the best interest at heart of the other person.

“A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. —Bristol & West Building Society v Mothew [1998] Ch 1 at 18 per Lord Millett

“A fiduciary duty is the highest standard of care at either equity or law. A fiduciary (abbreviation fid) is expected to be extremely loyal to the person to whom he owes the duty (the “principal.”

“A fiduciary must not put his personal interests before the duty ato the principal and must not profit from his position as a fiduciary. Otherwise there might result a breach of that fiduciary duty.

A fiduciary relationship is “one founded on trust or confidence reposed by one person in the integrity and fidelity of another.” A fiduciary has a duty to act primarily for the client’s benefit in matters connected with the undertaking and not for the fiduciary’s own personal interest. [Wikipedia]

“Scrupulous good faith and candor are always required. Fiduciaries must always act in complete fairness and may not ever exert any influence or pressure, take selfish advantage, or deal with the client in such a way that it benefits themselves or prejudices the client.” [Black’s Law Dictionary]

Youth Athletes are defined by the United Nations General Assembly as Athletes who are age 15 to 24. This group includes some High School, Elite, Olympic and College and University Athletes.

Youth Athletes are extremely reliant on universities, colleges, Olympic and other officials and Coaches. There is a Fiduciary Relationship and a Power Gap between those in charge and the Youth Athlete. Those in charge of Youth Athletes are in Power.

If all Student-Athletes sincerely wanted and played for education and love of the game and all Elite and Olympic Athletes participated for love of the game, the Fiduciary Duties and Power Gap would be lessened. Youth Athletes would be less Vulnerable Student Athletes and Olympians.

College Football, College Basketball and Olympic Athletes are the most Vulnerable of all Athletes. They are the most dependent on the Fiduciary Duties and most susceptible and defenseless in the Power Gap.

These Athletes are greatly reliant on extremely powerful, highly compensated Coaches and Others. Coaches of these Athletes are particularly powerful.

Often Admissions departments of schools have lower admission standards for Athletes than other students making them a more vulnerable group to Power and Fiduciary Duties than the mainstream class of students. For instance at “Duke, a school that prides itself on high academic standards for its athletes, scholarship athletes nevertheless maintain an average SAT score 400 points below regular students.”

“Many big-time collegiate Athletes, sadly, are simply not on par intellectually with their student peers.”

The socio-economic background of many Division I Football and Basketball Athletes increases their vulnerability. 11% (1/9) black male students at Division I Schools is a Scholarship-Athlete, compared to 2% (1/50) white male students.

Numerous Athletes believe that sports participation is a means of escaping poverty. “44% of black college athletes expect to play professionally.” However, less than 2% (2/100) of NCAA Division I men’s football and basketball players actually play professionally.

It is different for Student-Athletes who actually want an education. For this group, Coaches advertise a free education, a quality education and tools to succeed in life. This Student-Athlete is less susceptible to vulnerability. The Ivy League in the U.S. is an example.

The employer-employee relationship, concluded by analysis of applicable fiduciary duties, is the postulation. While the duties owed in an employer-employee relationship are typically set forth in contracts, a fiduciary duty analysis or the arrangement is appropriate if the employer is disproportionately powerful and reduces the employee to a lop-sided vulnerability and exploitation of the employee occurs. Exploitation in that regard gives rise to breaches such as disloyalty, failure to exercise due care and protection, commercialism and even fraud.

The Coach-Athlete relationship in some instances ascends to an Employer-Employee relationship after analysis of Fiduciary Duties.

When the pretense of an education is removed the relationship between Coach and Athlete is apparent. The Athlete is vulnerable. Coaches and schools pay athletes by giving them scholarships in exchange for athletic performance which generates school revenue, the almighty bottom line. Athlete Safety and Protection are potentially neglected, Athletes are perhaps Maltreated, Endangered, Harmed and Abused. Human and Civil Rights are possibly violated.

On one side are Student-Athletes who genuinely want a quality education and desire to complete their 4 year degree. They are capable of academic success. However, some Athletes are not capable academically on the College Education level. They become worse-off when they try.

Other less academically interested Athletes attend College and classes only after insistence by their academic advisors and Coaches. Because, rather than becoming educated, attendance is required for game participation and prospect of becoming successful professional Athletes.

Schools and Coaches are not able to offer, for the majority of Athletes, more than an education, the very reason for College and University existence, because odds are very long for becoming Professional Athletes.

For those who begin the sports profession, the odds are even longer for lasting any length of time and earning a financial livelihood.

In Real Life, in an Athletic Community where “winning isn’t everything it’s the only thing, Sports Violence and Youth Athlete Abuse are not far behind.” Athletes can expect:

• Athlete Vulnerability, Defenselessness
• Power Gap, Athlete Manipulation by the Coach
• Coercive, Forceful Coach Relationship over Athlete
• Potential Exploitation, Maltreatment, Endangerment and/or Abuse of Vulnerable Athletes
• Necessity to Endure for Another Practice and Game
[EDUCATING SOMEONE WHO CAN’T OR DOESN’T WANT TO BE EDUCATED: THE SHIFTING FIDUCIARY DUTY CONTINUUM OF BIG-TIME COLLEGE SPORTS By Richard Salgado]

The Breach of a Fiduciary Coach-Athlete Relationship is a serious violation and betrayal.

The Breach of the Fiduciary Duty is a failure to perform the legal and moral obligation owed to the Principal (Athlete) and a failure to act as required by the law and to exercise the care that a reasonable person would exercise in the same or similar situation. It is the failure of a fiduciary to fulfill the duties with a high standard of care. [Webster’s New World Law Dictionary]

Consequently, the Coach who violates Amateur Athlete Human Rights and causes Amateur Athlete Human Rights Disorders and/or allows any form of Athlete Racial, Ethnic, Religious, Social Harassment and/or who mismanages serious Youth Athlete Injuries, coercively persuades Athletes to “Play Through Injuries”, causes Emotional Depression from Verbal, Yelling, Emotional Abuse, is at Risk for investigation for potential Job Termination and Dismissal by College, University, High School, Olympic Committee, institution , league, societies and/or other authorities.

Additionally, any form of Physical and Psychological Maltreatment, Endangerment and/or Abuse and/or Sexual Abuse is at Risk for investigation for potential Job Termination and Dismissal.

Furthermore, the Coach is at Risk for Criminal Charges and Civil Liabilities.
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The U.S. Supreme Court has ruled that sports participation consent to play a sport and waivers cannot void liability for gross negligence. Gross negligence is reckless, wanton or willful misconduct, not mere neglect. 100. [100. The Pinnacle, Friday, September 05, 2008 Liabilities and waivers for recreational activities By Ken Gorman Lombardo and Gilles]

The Center for Sports and the Law describes negligent supervision by a coach. The following are the 4 elements of coaching negligence:

1. A Duty of Care is owed; Duty not to expose players to unreasonable risk of injury.
2. The duty imposes a certain standard of care;
3. An injury or damage occurs;
4. And the damage or injury as a result of a breach in the standard of care. 21. [21. Coaches Report – Winter 2003 , Volume 9 Number 3, Part II: Dealing With Violence as a Legal Issue

Following Pre-Sports-Participation Examinations, Doctors are checking the box entitled “cleared to play” thereby clearing athletes to participate in sports in both proper and bad playing and sports participation conditions. That unprotected, exposed, vulnerable clearance by Doctors of Athletes to participate must cease.

Every doctor should add to their physical examinations over their signatures for clearance: “Only cleared to participate in sports that implement Athlete Standard Protection, Supervision and Duty of Care.

No Child or Youth Athlete should be cleared to participate in Sports that do not observe those Standards.

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“The U. S. Court of Appeals for the Third Circuit in Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993), held that a special relationship existed between a college and a student athlete that was sufficient to impose a duty of reasonable care on a college.35

Florida has imposed a duty on universities to protect their students in limited situations. The Fourth District Court of Appeal in Gross v. Family Services Agency, Inc., 716 So. 2d 337 (Fla. 4th DCA 1998), held that a university had a duty to students to use ordinary care in providing educational services and programs.36 In particular, the Gross court concluded that “[w]hile a person or other entity generally has no duty to take precautions to protect another against criminal acts of third parties, exceptions to this general rule have emerged, including the ‘special relationships’ exception.”37

Universities also are liable under other theories of negligence, including negligent hiring, retention, and supervision of employees (i.e., athletics staff).38 Therefore, the existence of a special relationship between a university and its students imposes a corresponding duty of care.39

Florida courts also have imposed a duty on public schools to supervise students placed within its care.40 In these cases, the courts have held that “a negligent failure to act in carrying out this duty of the school is actionable.”41 In carrying out the supervisory duty, a school, and its officials and teachers, “must use the degree of care ‘that a person of ordinary prudence, charged with the duties involved, would exercise under the same circumstances.’”42 A breach of this duty, furthermore, exposes a school to liability for “reasonably foreseeable injuries caused by the failure to use ordinary care.”43 The supervisory duty in Florida is based on the notion that the school is partially standing in place of the student’s parents.44

Similarly, the university has two primary duties to student athletes under a fiduciary relationship. First, the university has an implied duty to limit institutional conduct that unreasonably interferes with the student athletes’ ability to develop and participate athletically.45 For example, arbitrary and capricious conduct that interferes with an opportunity for student athletes to participate in intercollegiate athletics would be precluded under this duty.46 Second, institutional conduct which promotes its interests ahead of that of the student athlete, is prohibited under this duty.47

The referral of student athletes to sports agents by athletics staff for compensation specifically would be prohibited under this duty because of the coach’s conflict of interest.

[The Florida Bar Journal, University Liability in Florida When Coaches Refer Student Athletes to Sports Agents: A Fiduciary by Michael L. Buckner, April, 1999 vol. LXXIII, No. 4]

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“Breach of duty is part of a negligence lawsuit and the most important aspect in proving such an issue. If no duty was ever breached then no negligent damages are owed.

In a negligence lawsuit there are four elements to consider: duty, breach of duty, causation and damages. For breach of duty, it must be decided whether or not the defendant, the one being accused of negligence, behaved in a way that a reasonable person would have under similar circumstances. If no duty is owed then there is no negligence lawsuit.

To determine breach of duty’s existence, a determination is made as to the standard of care and an evaluation of the defendant’s conduct in reflection of that determined standard. If duty of care by the defendant can be proven, using the reasonable care standard, then negligence can be an issue. The defendant needs to have recognized the risks created by her or his actions and to understand what could happen from those risks taken. The general standard of care is then applied to the specific circumstances of the situation and the jury must establish whether the defendant’s conduct was negligent.

When the courts decide if duty was owed they consider the objective or subjective standard. Objective standard considers the defendant’s actions against a hypothetical reasonable person. With the subjective standard, the court considers whether the tortfeasor, the person who is allegedly negligent, believes her or his actions were reasonable. For example, if someone attempts to rob an elderly woman in a parking lot and she happens to have a gun and shoots her attacker, the objective standard would ask if a reasonable person would have acted the same way. In the subjective standard the courts would ask the elderly woman if she thought she was acting in a reasonable fashion.

Professionals are held to a higher standard of care than an ordinary reasonable person would be. Police officers, for example, must behave as a reasonable officer would do so rather than a reasonable person. The perspective of an officer would be different than an ordinary person and that difference matters in the court.

Occasionally, statutes, or laws, will decide the reasonable standard of care rather than the courts interpreting the behavior. When statutes determine the standard of care owed, violations would be called negligence per se.

If a plaintiff, the person alleging negligence, is unable to prove the defendant’s negligence because pertinent information is inaccessible, then the plaintiff can rely on res ipsa loquitur. What this means is that the act speaks for itself and needs no other information to determine negligence. But, in order to use this, the plaintiff must prove two things: the event which injured themselves only happens when negligence has occurred; the item or instrument which caused the injury was under exclusive control of the defendant and the plaintiff’s injuries were not due to their own actions.

The key factor to remember in considering negligence is whether the duty of care was ever owed to the plaintiff, by the defendant, and whether or not that duty was breached.”

[Defining Breach of Fiduciary Duty, Essorment, Your Source for Knowledge, Understanding the importance of breach of fiduciary duty in a negligence case will help you understand whether the complaint will be succesful]

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New Report Calls for Increased Oversight of Intercollegiate Athletics by Governing Boards

‘The report warns that with intercollegiate athletic programs operating more and more like businesses, their boards must ensure an appropriate balance between athletics and academics.

‘The dilemma for almost all colleges and universities is that their athletic programs tend to fail in one critical business practice — making a profit. And that usually requires money to be shifted away from possible use for academic programs.

‘The survey also found a strong consensus that the NCAA should quicken enforcement proceedings, impose penalties in a timely manner, simplify rules, share media contract revenue more equitably and do more to control the corrupting influences of money in college sports.

‘Only the NCAA can do the latter. Dominated by the roughly 20 percent of universities that can show a profit with the athletic “businesses,” the NCAA does little to level the playing fields in spending for athletics. In fact, the “arms war” of intercollegiate athletics is escalating. [Roy Ockert Oct 16, 2012 Arkansas News]
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WASHINGTON, D.C. – The Association of Governing Boards of Universities and Colleges (AGB) released “Trust, Accountability, and Integrity: Board Responsibilities for Intercollegiate Athletics,” a report that calls for enhanced board oversight of college athletics.

The report cautions that as intercollegiate athletics departments increasingly operate like businesses, boards must act to ensure an appropriate balance between athletics and academics in their institutions, or policy-makers or regulators will do it for them.

The report focuses on three recommendations for appropriate board engagement:

• The governing board is ultimately accountable for athletics policy and oversight and must fulfill this fiduciary responsibility.
• The board must act decisively to uphold the integrity of the athletics program and its alignment with the academic mission of the institution.
• The board must educate itself about its policy role and oversight of intercollegiate athletics.

“In light of recent issues in college sports, it is imperative for boards to function at a higher level of awareness and judgment in order to address the financial challenges associated with college sports, to ensure the link between intercollegiate athletics and academic priorities, and to reaffirm standards and ethics in college athletics,” said Legon.

“Chief executive officers administer their institutions’ sports programs on a daily basis,” Casteen said, “but boards must engage actively and appropriately in the policy considerations surrounding the key issues, which can have a major impact on their institutions’ financial welfare and reputation.”

As part of the report, AGB surveyed chief executive officers and board chairmen of Division I institutions. The survey asked them how they have applied recommendations from AGB’s 2009 “Statement on Board Responsibilities for Intercollegiate Athletics” and about other governance issues related to college sports, including compliance with the rules and regulations of the NCAA and various conferences.

Some of the report’s major findings:

• As many as one fourth of the respondents stated their boards had no formal policy on intercollegiate athletics.
• Only 19 percent of respondents stated that their athletics department is self-supporting and has no need for subsidy from institutional resources.
• While 84 percent of boards reported that they receive sufficient data to monitor academic progress of athletes by team, only about a third of respondents reported having sufficient information to oversee student-athletes’ declared academic majors or the demands of sports participation on students’ time.
• Almost a third of the respondents characterized their board’s preparation to oversee compliance with NCAA rules as neutral, somewhat poor or poor.
• As many as 99 percent have programs and camps for minors, but only half have policies for protection of minors.

Many survey respondents also called for the NCAA to quicken enforcement proceedings and impose penalties in a timely manner, simplify rules, more equitably share revenue from media contracts and control the corrupting influences of money in college sports. The report recommends the NCAA.

Include in the NCAA rule book stronger, more detailed statements about the responsibility that governing boards have for intercollegiate athletics in their institutions.

Take a stronger stance in addressing major violations and the root causes of infractions, and support institutions in makings changes in a fundamental and sustained manner.

END

Association of Governing Boards of Universities and Colleges

The Association of Governing Boards of Universities and Colleges (AGB) is the only national association that serves the interests and needs of academic governing boards, boards of institutionally related foundations, and campus CEOs and other senior-level campus administrators on issues related to higher education governance and leadership. Its mission is to strengthen, protect, and advocate on behalf of citizen trusteeship that supports and advances higher education.

[Clemson University President James F. Barker of the Intercollegiate Athletics Project Group, advised The Association of Governing Boards of Universities and Colleges (AGB) at Knight Commission on Intercollegiate Athletics (KCIA) meeting in Washington about the report presented by Richard D. Legon, AGB president, and John T. Casteen, president emeritus of the University of Virginia and director of the project.]

Intercollegiate Athletics Project Group Report to The Association of Governing Boards of Universities and Colleges (AGB)
Published: October 10, 2012

“To honor and exercise the duty of trust, the board must ensure that student-athletes are in fact successful as students. Boards must be attentive to the academic progress of athletes, ensuring that their participation in intercollegiate sports does not negatively affect their progress and success in the curriculum.

“We are not naïve in issuing this renewed call for enhanced board engagement in intercollegiate athletics. We don’t pretend that our recommendations are easy to implement. Beyond the ethos of colleges and universities themselves, there are cultures of popular and political support that have become deeply interwoven in the fabric of intercollegiate athletics in many settings.

“Any action to call the increasingly independent trajectory of athletics to account can expect to encounter strong resistance from many quarters where public support for athletics may overshadow support for the institution itself. Yet the urgency to act remains. Ensuring that student-athletes are successful students is legiate athletics be re-designated as professional ventures. The more that higher education institutions exhibit behaviors and motivations befitting a for profit centered institution of higher education, the more pointed the questions become about the extent to which these institutions exist to serve the nation’s educational purposes – and the more willing policy makers may become to consider seriously the possibility of revoking the tax-exempt status of higher education institutions or isolating the “unrelated business income” of their athletics programs. Given the continued disproportionate growth of athletics relative to other purposes and programs, our concern is that if boards do not act to ensure an appropriate balance between athletics and academics in our higher education institutions, policy makers or others will do it for us.
[Association of Governing Boards, www.agb.org Oct 9, 2012]

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Knight Commission calls for more intercollegiate athletics oversight

By Rachel White, Collegian Staff Writer, 2012 Collegian Inc., Penn State, 123 S. Burrowes St., University Park, Pa

“A report released Tuesday by the Association of Governing Boards of Universities and Colleges expresses the need for more board governance when it comes to intercollegiate athletics in wake of “the Penn State debacle,” officials representing the group said.

Rick Legon, president of the association, and John Casteen III, president emeritus of the University of Virginia and director of the AGB Intercollegiate Athletics Project, presented the report, according to a press release issued by the group.

Legon wrote in an email that the report, titled “Trust, Accountability, and Integrity: Board Responsibilities for Intercollegiate Athletics,” is about “board accountability during a period of public concern and tight fiscal situations for many institutions.”

In the midst of the events surrounding Penn State, intercollegiate athletic departments across the country are at the center of concern for acting more like businesses than entities that should focus on a balance between athletics and academics at their host institutions, according to the release.

According to the release, findings from a survey — that was conducted before Penn State’s situation was known — were another part of the report presented Tuesday. The survey asked Division I institutional leaders questions surrounding their implementation of recommendations from a report released by The Association of Governing Boards in 2009 and about “other governance issues related to college sports, including compliance with the rules and regulations of the National Collegiate Athletic Association and various conferences.”

The answers included as many as 99 percent of programs have programs for youth, but only about 50 percent of them have policies to protect minors.

The report focuses on three recommendations for the governing board: being accountable for athletics policy and oversight, upholding the integrity the athletic program and ensuring that it is in accordance with the academic mission of the institution, and educating themselves about its governing policy and the policies they will use to oversee intercollegiate athletics.

Penn State Spokeswoman Lisa Powers said the university is aware of the report and will look over the findings, in particular the three recommendations “to determine how we are matching up.”

“The board has been and will continue to look at how our athletics programs align with the academic mission of our institution,” Powers said.

The Association of Governing Boards of Universities and Colleges realizes implementing the recommendations could be difficult for some institutions, but stresses that it is an urgent matter, according to the release.

“In light of recent issues in college sports, it is imperative for boards to function at a higher level of awareness and judgment in order to address the financial challenges associated with college sports, to ensure the link between intercollegiate athletics and academic priorities, and to reaffirm standards and ethics in college athletics,” Legon said, according to the release.

According to the website, The Association of Governing Boards of Universities and Colleges is the only association that specifically tailors to the needs of “academic governing boards, boards of institutionally related foundations, and campus CEOs and other senior-level campus administrators.”

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University Liability in Florida When Coaches Refer Student Athletes to Sports Agents: A Fiduciary by Michael L. Buckner

Page 87

The star running back at State U. is the leading rusher in the nation during his sophomore year and is projected by professional scouts and sports experts to be a top 10 pick in the National Football League (NFL) draft after his senior year. The head football coach at State U. refers the star running back to a professional sports representative (“sports agent”). The coach is financially compensated by the sports agent for the referral. Because of the sports agent’s shady representation, the star running back violates national intercollegiate athletic regulations, which cause his intercollegiate eligibility to be revoked. Thereafter, the star running back enters the NFL draft after his sophomore year and is picked in the second round. Consequently, the star running back loses millions of dollars in potential earnings as a result of being picked in the second round. The star running back initiates a lawsuit against State U. alleging that the university had a special duty to protect student athletes from the actions of the coach.

In the modern era of intercollegiate sports, the complexities and pressures involved in achieving success on the athletic field and in the classroom contributes to the formation of a special relationship between the university and the student athlete. Specifically, the university and its athletics staff are obligated to ensure that student athletes are afforded tangible, academic benefits1 after graduation. Also, university-sponsored intercollegiate athletic competitions provide student athletes a forum to develop their athletic talents for potential professional sports careers.2 The unique position of student athletes on university campuses, therefore, supports labeling the university and student athlete relationship as special or fiduciary. Consequently, the increase in television revenues from and the overall commercial exposure of intercollegiate sporting contests in this country3 may warrant judicial protection of student athletes’ intercollegiate eligibility, professional sports career aspirations, and earnings from a university’s breach of its fiduciary duty.

Referral of Student Athletes to Sports Agents by Staff

The selection of a sports agent has a major influence on a student athlete’s professional sports career aspirations and earnings. A practice involving a university’s athletics staff and sports agents can threaten those aspirations and potential earnings, however, and may trigger the protection of student athletes under various legal principles in Florida courts. Sports agents have increasingly accepted as clients student athletes referred by an athletics staff member or representative (e.g., head coach, faculty member, booster) of a college or university for compensation (e.g., cash).4 For example, in exchange for compensation, some college coaches have either permitted only one sports agent to speak with all of the student athletes on the coach’s team or directed or “referred” student athletes to only one sports agent.5

This system of “agent referrals” is prohibited by the National Collegiate Athletic Association (NCAA)6 and the laws of several states,7 including Florida.8 The purpose of this article, however, is not to discuss the regulatory or statutory prohibitions on agent referrals. Simply, these regulations and laws were not specifically designed to provide student athletes standing to sue academic institutions for damages to their intercollegiate eligibility, professional sports career aspirations, and earnings. Under the present statutory scheme, conversely, universities may sue violators of Florida’s agent law for damages to the institution’s revenues from media coverage of a sports contest, right to grant athletic scholarships, right to recruit an athlete, or ability to participate in postseason athletic competition.9

The extension of fiduciary theory to the intercollegiate sports context, therefore, provides student athletes a potential legal avenue to protect their intercollegiate eligibility, professional sports career aspirations, and earnings. Indeed, athletics staff members who practice agent referrals expose a university to civil liability under this theory. The recent trend in lawsuits filed by student athletes against universities for damages suffered during their participation in intercollegiate athletics should stand as a luminous warning to academic institutions.10 Naturally, it will be a matter of time before a student athlete successfully argues for the application of fiduciary theory to the university and student athlete context. For instance, liability under a fiduciary theory may attach to the university if the sports agent to whom the student athlete was referred commits malpractice or involves the student athlete in a scandal, regulatory infraction, or criminal violation. Under these circumstances, a student athlete normally loses eligibility to compete in intercollegiate athletics. As a result, the ineligible student athlete must enter prematurely into the applicable professional sports league draft. For most student athletes destined to play professionally, entering into the draft prematurely means the loss of millions of dollars in earnings or the inability to secure a guaranteed professional sports contract.11 Therefore, the university may have a fiduciary duty, and corresponding liability, to protect a student athlete from harm when a student athlete is referred to a sports agent for compensation.

Definition of Fiduciary Relationship

A fiduciary relationship arises where one party places its trust and confidence in a dominant party.12 The Second District Court of Appeal in Prescott v. Kreher, 123 So. 2d 721 (Fla. 2d DCA 1960), for instance, held that a fiduciary relationship generally exists where a confidence is reposed and, on the other side, there is the resultant superiority and influence. . . . The relation need not be legal but may be moral, social, domestic, or purely personal. Thus, the term, “fiduciary” or “confidential” relation as defined is a very broad one. Such a relation has been said to exist and to suffice as a predicate for relief in all cases wherein confidence has been reposed and betrayed.13

Under this general rule, particular relationships, including husband and wife,14 principle and agent,15 trustee and beneficiary,16 attorney and client,17 physician and patient,18 guardian and ward,19 and minister and parishioner,20 have been held by courts to be fiduciary relationships under Florida law. Fiduciary relations also can emerge, as a matter of fact, from other types of relationships.21 In instances when a fiduciary relationship exists, Florida law imposes on the more powerful party (the fiduciary) a duty to act for the benefit of the principal in all matters relevant to the relationship.22

Fiduciary Relationships in Collegiate Sports

In the context of intercollegiate athletics, the nature of the university and student athlete relationship supports the protection of student athletes’ intercollegiate expectations and potential benefits from a professional sports career.23 Although no Florida court has ruled that a college or university owes a fiduciary duty to its student athletes,24 the lack of judicial recognition should not deter academic institutions from recognizing and protecting against the potential legal obligations arising from this type of relationship. Moreover, the extension of the fiduciary concept to the university and student athlete relationship could be imposed by Florida courts to maintain the law’s relevance with the evolving and complex world of intercollegiate athletics.25

Application of fiduciary concepts in the intercollegiate sports context is supported by several scholars and commentators. One scholar noted that “the law of fiduciary obligation has developed through analogy to contexts in which the obligation conventionally applies.”26 Under this methodology, scholars and commentators have identified several factors inherent in the university and student athlete relationship that warrant the application of fiduciary concepts to this special relationship.27 One commentator, for example, opined that “[t]he most prominent of these factors is the dominance and control which a university exercises over the lives of student athletes.”28 Interestingly, the Colorado Supreme Court in University of Colorado v. Derdeyn, 863 P.2d 929 (Colo. 1993), noted the tremendous influence that a university exerts over its student athletes: “[Student athletes] submit to extensive regulation of their on- and off-campus behavior, including maintenance of required levels of academic performance, monitoring of course selection, training rules, mandatory practice sessions, diet restrictions, attendance at study halls, curfews, and prohibitions on alcohol and drug use.”29

The Derdeyn court, relying on the testimony of a director of athletics, also looked at the level of dominance college coaches have over student athletes: “[S]ome coaches within their discretion impose curfews; that athletes are required to show up for practice; that athletes are ‘advised. . . on what they should take for classes’; that ‘we have a required study hall in the morning and in the evening’; and that it is ‘fair to say that the athletes are fairly well regulated.’”30

Accordingly, college coaches develop a special influential relationship with student athletes based on trust and dependence because of the multiple roles coaches play in student athletes’ lives.31 Consequently, an academic institution, through its coaches, has a dominant role into and control over the lives of student athletes that creates a special, or fiduciary, relationship.32 The fiduciary nature of the relationship, therefore, gives the university the responsibility to carry out the reasonable expectations of student athletes.33

University’s Fiduciary Duties

If Florida courts begin to apply fiduciary concepts in the intercollegiate athletics context, colleges and universities need to become more aware of their fiduciary duties if athletics staff members improperly refer student athletes to sports agents for compensation. Simply, the existence of a university and student athlete fiduciary relationship involves the imposition of the highest standard of duty implied by law.34

The scope of this special duty can be defined through analogy from cases where courts have acknowledged the special duty universities owe to their students in other circumstances. The U. S. Court of Appeals for the Third Circuit in Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993), held that a special relationship existed between a college and a student athlete that was sufficient to impose a duty of reasonable care on a college.35

Florida has imposed a duty on universities to protect their students in limited situations. The Fourth District Court of Appeal in Gross v. Family Services Agency, Inc., 716 So. 2d 337 (Fla. 4th DCA 1998), held that a university had a duty to students to use ordinary care in providing educational services and programs.36 In particular, the Gross court concluded that “[w]hile a person or other entity generally has no duty to take precautions to protect another against criminal acts of third parties, exceptions to this general rule have emerged, including the ‘special relationships’ exception.”37

Universities also are liable under other theories of negligence, including negligent hiring, retention, and supervision of employees (i.e., athletics staff).38 Therefore, the existence of a special relationship between a university and its students imposes a corresponding duty of care.39

Florida courts also have imposed a duty on public schools to supervise students placed within its care.40 In these cases, the courts have held that “a negligent failure to act in carrying out this duty of the school is actionable.”41 In carrying out the supervisory duty, a school, and its officials and teachers, “must use the degree of care ‘that a person of ordinary prudence, charged with the duties involved, would exercise under the same circumstances.’”42 A breach of this duty, furthermore, exposes a school to liability for “reasonably foreseeable injuries caused by the failure to use ordinary care.”43 The supervisory duty in Florida is based on the notion that the school is partially standing in place of the student’s parents.44

Similarly, the university has two primary duties to student athletes under a fiduciary relationship. First, the university has an implied duty to limit institutional conduct that unreasonably interferes with the student athletes’ ability to develop and participate athletically.45 For example, arbitrary and capricious conduct that interferes with an opportunity for student athletes to participate in intercollegiate athletics would be precluded under this duty.46 Second, institutional conduct which promotes its interests ahead of that of the student athlete, is prohibited under this duty.47 The referral of student athletes to sports agents by athletics staff for compensation specifically would be prohibited under this duty because of the coach’s conflict of interest.

University Liability for Recommending Sports Agents

Colleges and universities may be liable in a breach of fiduciary duty lawsuit if a sports agent, with whom an athletics staff member refers student athletes, damages a student athlete’s professional sports career aspirations and earnings. Florida appellate courts have yet to rule on the validity of student athletes’ property interests in intercollegiate eligibility or prospective professional sports earnings.48 Courts from other jurisdictions, however, are increasingly finding that student athletes have a protected property interest in their intercollegiate eligibility and prospective professional sports earnings.49 The federal district court in Hall v. University of Minnesota, 530 F. Supp. 104 (D. Minn. 1982), for example, held that a student athlete’s opportunity to be drafted in the second round of the National Basketball Association draft was a private interest and, as such, protected by the United States Constitution.50 In particular, the Hall court concluded that a student athlete “would suffer a substantial loss if his career objectives were impaired.”51 The Hall decision stands in contrast to decisions of courts in other jurisdictions, which held that student athletes do not have a protected property interest in either participating in intercollegiate athletics or future professional sports earnings.52 These holdings were based on the belief that future professional sports earnings, for instance, were “too speculative” to constitute a property interest.53 However, a student athlete’s future professional sports earnings can be ascertained more accurately today due to the sports industry’s use of sophisticated scouting techniques and projections and professional sports leagues’ imposition of rookie salary caps.54

Agent’s malpractice becomes more meritorious in a breach of fiduciary duty claim, therefore, if Florida courts adopt the Hall analysis. Under such a claim, a college or university may be liable to compensate a former student athlete for all earnings “lost” as a result of the sports agent’s malpractice or improper dealings.

Conclusion

As sports agents strive to find alternate ways to solicit and secure student athletes, colleges and universities must become aware of any activity by athletics staff that may impose liability on the institution. Although Florida courts have not specifically recognized the existence of a fiduciary relationship between a university and a student athlete, the risks associated with sports agent referrals are too great for an academic institution to ignore. Accordingly, colleges and universities should do the following to limit their liability:55

1) Conduct a general review of all university policies and guidelines on communications and dealings with sports agents, including rules pertaining to sports agent referrals, the recording of improper offers made by sports agents to student athletes, and the procedure to document agents properly signed by student athletes;
2) Consult with legal counsel for the applicability of the Florida sports agent referral statute on current university policies;
3) Compile and review a list of former student athletes and their sports agents and interview former student athletes on such list in order to identify any improper acts (i.e., possible referrals) committed by athletics staff;
4) Implement sports agent education seminars for intercollegiate athletics staff and student athletes, and institute one-on-one meetings between “monetizable”56 student athletes and an institutional staff member twice a year; and
5) Incorporate questions regarding sports agent referrals in student athlete exit interviews, and promptly investigate and report any impropriety.
Prompt attention to this issue will limit an institution’s potential liability in Florida under fiduciary or other legal theories. q

1 See NCAA Const. art. 1.3.1, reprinted in National Collegiate Athletic Association, 1998–99 NCAA Manual (1998) [hereinafter NCAA Manual]; id. art. 2.2.1.
2 See Melvin L. Braziel, United We Stand: Organizing Student Athletes For Educational Reform, 4 Sports L.J. 81, 104 (1997).
3 See id. at 105; Timothy Davis, An Absence of Good Faith: Defining a University’s Educational Obligation to Student Athletes, 28 Hous. L. Rev. 743, 749–51 (1991); National Collegiate Athletic Assoc., Budget Supports New NCAA Structure (visited Nov. 12, 1998) <http://www.ncaa.org/financial/budget.html>.
4 See generally telephone interview with William S. Saum, agent and gambling representative, The National Collegiate Athletic Association (Jan. 6, 1999); Thomas J. Arkell, Agent Interference With College Athletics: What Agents Can and Cannot Do and What Institutions Should Do In Response, 4 Sports L.J. 147, 153 (1997); Agent’s Activities at LSU Prompt Investigation, The Chronicle of Higher Education, Feb. 19, 1999, at A55.
5 See generally interview with William S. Saum, supra note 4; Arkell, supra note 4, at 153.
6 NCAA bylaw, art. 10.1(e), NCAA Manual.
7 Ala. Code §8-26-34(b) (1997); Colo. Rev. Stat. §23-16-103(1)(a) (1998); Mo. Ann. Stat. §436.212(4) (Vernon 1997); 5 Pa. Cons. Stat. Ann. §3305(3) (1998); S.C. Code Ann. §59-102-40(4) (Law. Co-op 1997); Tenn. Code Ann. §49-7-2114(6) (1998).
8 Fla. Stat. §468.456(1)(e), (f) (1997).
9 Fla. Stat. §468.4562(1)-(2) (1997).
10 See Fortay v. University of Miami, Civ. A. No. 93-3443, 1994 WL 62319, at *6-7 (D.N.J. Feb. 17, 1994); Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993).
11 See, e.g., Richard M. Summa, The Foot Locker Defense, 69 Fla. B.J. 87, 87 (Oct. 1995).
12 Becks v. Emery-Richardson, Inc., Nos. 86-6866-CIV-GONZALEZ, 87-1554-CIV-GONZALEZ, 1990 WL 303548, at *28 (S.D. Fla. Dec. 21, 1990); Morton v. Young, 311 So. 2d 755, 756 (Fla. 3d D.C.A. 1975); Prescott v. Kreher, 123 So. 2d 721, 727 (Fla. 2d D.C.A. 1960).
13 Prescott, 123 So. 2d at 727; see also Becks, 1990 WL 303548, at *28.
14 Safford v. McCaskill, 25 So. 2d 210, 212–13 (Fla. 1946).
15 Capital Bank v. MVB, Inc., 644 So. 2d 515, 518 (Fla. 3d D.C.A. 1994).
16 Id.; Allen v. Estate of C. Dutton, 394 So. 2d 132, 134–35 (Fla. 1980).
17 Forgione v. Dennis Pirtle Agency, Inc., 701 So. 2d 557, 560 (Fla. 1997).
18 Nardone v. Reynolds, 333 So. 2d 25, 39 (Fla. 1976).
19 Capital Bank, 644 So. 2d at 518.
20 Doe v. Evans, 718 So. 2d 286, 291–93 (Fla. 4th D.C.A. 1998).
21 See Jacobs v. Vallancourt, 634 So. 2d 667, 670 (Fla. 2d D.C.A. 1994).
22 See id.
23 Timothy Davis, Student Athlete Prospective Economic Interests: Contractual Dimensions, 19 T. Marshall L. Rev. 585, 618–19 (1994).
24 But cf. Montalvo v. University of Miami, 705 So. 2d 1042, 1043 (Fla. 3d D.C.A. 1998); University of Miami v. Militana, 184 So. 2d 701, 704 (Fla. 3d D.C.A. 1966); Houston v. Mile High Adventist Academy, 872 F. Supp. 829, 834–35 (D. Colo. 1994); Moy v. Adelphi Inst., 866 F. Supp. 696, 707–08 (E.D.N.Y. 1994); Maas v. Corporation of Gonzaga Univ., 618 P.2d 106, 108 (Wash. Ct. App. 1980).
25 See, e.g., Gates v. Foley, 247 So. 2d 40, 43–44 (Fla. 1971).
26 Deborah A. DeMott, Beyond Metaphor: An Analysis of Fiduciary Obligation, 1988 Duke L.J. 879, 879 (1988).
27 Davis, supra note 23, at 620–23; DeMott, supra note 26, at 879; Robert Faulker, Note, Judicial Deference to University Decisions Not to Grant Degrees, Certificates, and Credit—The Fiduciary Alternatives, 40 Syracuse L. Rev. 837, 855–65 (1989); Alvin L. Goldman, The University and the Liberty of Its Student—A Fiduciary Theory, 54 Kent L.J. 643, 672 (1966).
28 Davis, supra note 23, at 620–21.
29 Derdeyn, 863 P.2d at 937.
30 Id. at 940–41.
31 Davis, supra note 23, at 622.
32 Id. at 620–23.
33 Id. at 625.
34 Federal Deposit Ins. Corp., 854 F. Supp. at 1572.
35 Kleinknecht, 989 F.2d at 1368.
36 Gross, 716 So. 2d at 339.
37 Id. at 338–39.
38 See School Bd. of Orange County v. Coffey, 524 So. 2d 1052, 1053 (Fla. 5th D.C.A. 1988); Collins v. School Bd. of Broward County, 471 So. 2d 560, 563–64 (Fla. 4th D.C.A. 1985); Fortay, 1994 WL 62319, at *6-7.
39 Gross, 716 So. 2d at 338–39; Rupp v. Bryant, 417 So. 2d 658, 666 (Fla. 1982).
40 Wyke v. Polk County Sch. Bd., 129 F.3d 560, 571 (11th Cir. 1997); Rupp, 417 So. 2d at 666; La Petite Academy, Inc. v. Nassef, 674 So. 2d 181, 182 (Fla. 2d D.C.A. 1996); Doe v. Escambia County Sch. Bd., 599 So. 2d 226, 227 (Fla. 1st D.C.A. 1992).
41 See Wyke, 129 F.3d at 571.
42 Id. (quoting Collins, 471 So. 2d at 564).
43 Id.
44 Rupp, 417 So. 2d at 666.
45 Davis, supra note 23, at 623–24.
46 Id.
47 Id. at 624.
48 But cf. Metsch v. University of Florida, 550 So. 2d 1149, 1150–51 (Fla. 3d D.C.A. 1989).
49 Hall v. University of Minnesota, 530 F. Supp. 104, 108 (D. Minn. 1982). But see Parish v. National Collegiate Athletic Assoc., 506 F.2d 1028, 1034 & n.17 (5th Cir. 1975); Hawkins v. National Collegiate Athletic Assoc., 652 F. Supp. 602, 610–11 (C.D. Ill. 1987).
50 Hall, 530 F. Supp. at 108.
51 Id.
52 Parish, 506 F.2d at 1034 & n.17; Hawkins, 652 F. Supp. at 610–11.
53 Parish, 506 F.2d at 1034 & n.17; Zehner v. Central Berkshire Reg. Sch. Dist., 921 F. Supp. 850, 862 (D. Mass. 1995); Colorado Seminary v. National Collegiate Athletic Assoc., 417 F. Supp. 885, 895 (D. Colo. 1976).
54 See, e.g., John C. Graves, Controlling Athletes with the Draft and the Salary Cap: Are Both Necessary?, 5 Sports L.J. 185, 201 (1998).
55 See Arkell, supra note 4, at 160–65, for a more detailed discussion of preventive measures.
56 A “monetizable” student athlete is an individual possessing the ability to get a loan or insurance for future earning potential as determined by loan officers. Id. at 161 n.62.

Michael L. Buckner is an associate in the Jacksonville office of Holland & Knight LLP, and practices in the firm’s collegiate sports administration and compliance practice area. He received his B.A. in international relations and history from the University of Southern California in 1993 and his J.D. from Florida State University in 1996.

This column is submitted on behalf of the Entertainment, Arts and Sports Law Section, Kimberly D. Kolback, chair.  [University Liability in Florida When Coaches Refer Student Athletes to Sports Agents: A Fiduciary A by Michael L. Buckner. Florida Bar Journal Article, April, 1999 Volume LXXIII, No. 4]

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