UK pitcher sues university

aclark@herald-leader.comDecember 4, 2009 

A University of Kentucky baseball player has sued the university, alleging that officials tried to force him to submit to NCAA questioning or face expulsion from the team.

Attorneys for pitcher James A. Paxton, a senior, say UK athletics officials have never told Paxton why the NCAA needs to question him. But university officials allegedly have threatened to remove Paxton's eligibility if he continues to decline NCAA interviews, and such a threat violates the UK code of student conduct, Paxton's attorneys say.

The lawsuit, filed Wednesday in Fayette Circuit Court, says UK officials, including Athletics Director Mitch Barnhart, have refused to inform Paxton "about the existence or nature of any allegations of misconduct or wrongdoing against him."

"How can you cooperate unless you know what they want?" said Richard G. Johnson, a Cleveland attorney who represents Paxton.

UK spokesman DeWayne Peevy declined to comment Thursday, saying the issue is a legal matter.

Court documents indicate the NCAA's interest in talking to Paxton could be similar to a case that led to a 2008 lawsuit filed against the NCAA by a student athlete who was suspended for obtaining a legal adviser for the Major League Baseball draft in 2006. The student was drafted out of high school, and his eligibility came into question when he decided to go to college to play baseball.

Paxton, a left-handed pitcher from Ladner, British Columbia, was a supplemental first-round pick of the Toronto Blue Jays in June. Paxton, the 37th overall pick, was one of only two players in the supplemental first round not to sign a professional contract, according to a UK news release. He returned to UK to complete his senior year and is still on the baseball team.

The lawsuit says UK compliance director Sandy Bell told Paxton in October that he must be interviewed by NCAA representative Chance Miller, assistant director of agent, gambling and amateurism activities. According to the lawsuit, Bell told Paxton not to tell anyone — including his parents or his attorney — about the interview or the instruction to participate.

The lawsuit says Bell's remarks indicated Paxton would be suspended from the team for some period even if he submitted to the interview.

The lawsuit says Barnhart told Paxton's attorney, Peter L. Ostermiller, that Paxton would not be allowed on the team unless he did the interview.

If he were suspended, the lawsuit says, Paxton would be at risk of losing the grant-in-aid package that pays for his tuition and books.

"The plaintiff has played baseball throughout his life and enjoys it, and will suffer irreparable harm if he is excluded from the 2010 baseball season," the lawsuit says.

'James' life in his hands'

According to an affidavit from Ostermiller, Barnhart stopped by Ostermiller's office in Louisville unannounced Nov. 18, while Ostermiller was in a trial, and told a secretary, "The kid (referring to James) won't be able to play."

The affidavit says Barnhart told Ostermiller in a phone conversation later that day that Paxton needed to talk to the NCAA investigator as soon as possible.

"Overall, Mr. Barnhart was quite insistent and animated that James had to be interviewed within the week," according to the affidavit.

Barnhart said the NCAA "made its own rules and could do whatever it wanted," the affidavit says. The athletics director said Miller, the NCAA representative, had initially been "in James' corner" but no longer favored Paxton because the player delayed an interview with Miller twice, according to the affidavit.

The affidavit says Barnhart told Ostermiller that Miller had "James' life in his hands" and was in a position to control his fate as a student athlete.

Barnhart told Ostermiller that the situation with Paxton was "both similar to and not similar to" a lawsuit filed last year on behalf of another college pitcher, Andrew Oliver of Oklahoma State, the affidavit says. Oliver sued the NCAA, accusing the association of breach of contract after he was ruled ineligible for using legal advisers to negotiate with the Minnesota Twins when he was drafted out of high school. Oliver received a $750,000 settlement from the NCAA.

According to a June 11 article in the National Post newspaper in Don Mills, Ontario, Paxton used "high-powered agent" Scott Boras as his adviser.

Under NCAA rules, "a player is not allowed to enter into a written agreement to be represented by an agent until he has signed his contract with the baseball team that drafts him," said Dick Robinson, a Lexington-based sports agent. But Robinson said an agent can act as an adviser to the player or his family as long as the player does not accept anything of value or enter into a contract that the agent will represent the athlete for the purpose of marketing his athletic ability.

In baseball, most outstanding players talk to an agent who acts an adviser in their senior year of high school and again in their junior year in college. They can do that without jeopardizing their NCAA eligibility, Robinson said.

Curious people

Johnson, who represented Oliver, said he couldn't say whether the Oliver and Paxton lawsuits are connected because "we don't know what the allegations are against James."

Johnson said Boras acted as Paxton's attorney, not as his agent.

Johnson said he and Paxton's other attorneys are aware of the National Post article and said "it hasn't escaped our attention" that it could be what the NCAA wants to question Paxton about.

"Obviously, we're curious people," Johnson said. "What on earth do they want to talk to him about? We don't know ... It's not our job to guess. We're entitled to be told what they want to talk about."

Paxton's attorneys say Barnhart and Bell have infringed upon Paxton's rights as a UK student.

According to the lawsuit, per the student code of conduct, a student must be informed in writing of the specific charges against him if an interview is part of or could lead to a suspension from an extracurricular activity. The code also says students have the right not to be compelled to give testimony, the lawsuit states.

But it is a violation of NCAA rules for a student athlete to refuse "to furnish information relevant to an investigation of a possible violation of an NCAA regulation," according to NCAA guidelines.

Johnson said the guidelines are unclear about how far a student athlete must go to cooperate with an NCAA investigation.

Herald-Leader reporters Valarie Honeycutt Spears and Chip Cosby contributed to this article. Reach Ashlee Clark at (859) 231-1443 or 1-800-950-6397, Ext. 1443.

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