University of Kentucky pitcher James Paxton, rated the No. 1 college senior in the country by the magazine Baseball America, lost a second court battle to get back on the playing field Friday, the day UK opened its season.
Both UK officials and attorneys for the 21-year-old southpaw agree that Paxton is a model student athlete; that his grades are good — according to him, he has a 3.3 out of a possible 4.0 grade-point average; that there is no proof he fails to meet National Collegiate Athletic Association requirements for playing baseball at UK; and that there are no allegations to that effect pending against him.
But UK officials aren't letting Paxton play because he has refused to submit to an interview with the NCAA.
Paxton sued UK in Fayette Circuit Court in early December, alleging that officials told him he had to submit to NCAA questioning or face expulsion from the team. Attorneys agreed to allow Paxton to remain on the team and receive his scholarship money while the case proceeded.
In January, Fayette Circuit Court Judge James Ishmael denied a motion by Paxton's attorneys for a temporary injunction to prohibit UK from requiring Paxton to talk to the NCAA as a precondition to his playing in UK games.
On Friday, the Kentucky Court of Appeals agreed with the lower court's decision, saying it appeared that the circuit court had properly considered all factors in the case before denying Paxton's motion for a temporary injunction.
Paxton's attorneys sought the temporary injunction so Paxton could play in UK games while the case was being considered.
Richard Johnson, one of Paxton's attorneys, said he was disappointed with the appellate court ruling.
He said the case addresses whether student athletes are entitled to the same civil rights as everyone else, and the appeals court did not address the plaintiff's constitutional arguments.
He said that he and co-counsel will decide by Monday whether to take the issue to the Kentucky Supreme Court.
UK's baseball season started Friday, with the team playing in a tournament in South Carolina. Earlier in the week, UK officials told the team's 6-foot-4, 220-pound pitching star from Ladner, British Columbia, that he would not be allowed to play.
"It's very disappointing the way things have gone here," Paxton said. "I'm kind of on the sidelines waiting to see what happens."
Paxton said his teammates are behind him.
"They all really want me to play, obviously. They're just frustrated and want it to get figured out, just like I do."
Paxton said his parents are also upset.
"They just want the best for me and they know I want to play at Kentucky. They want what I want," he said.
Court records indicate that UK officials are worried that the school will have to forfeit games if Paxton is allowed to pitch without first talking to the NCAA.
Paxton's representatives are concerned that the pitcher could lose millions of dollars as a professional player if he isn't allowed to pitch for UK. Professional scouts won't be able to watch him play, they say.
"We are the biggest fans that James has. We don't want to prevent him from doing anything he wants to do," said DeWayne Peevy, UK associate athletics director for media relations, earlier this week. "He's a model student athlete and an outstanding pitcher and we are doing everything we can to assist in getting his situation resolved."
But, said Peevy, "We cannot risk the forfeiture of games, the potential impact on the season for the 30-plus members of his team."
UK and NCAA officials could not be reached for comment after Friday's ruling.
UK officials, in court documents, have indicated that they think the NCAA wants to talk to Paxton about his eligibility. Johnson said that the NCAA has repeatedly refused to say what it wants to talk to Paxton about.
"They said it's not their policy to disclose what the interview's about, and they're not going to," Johnson said.
Paxton turned down about $1 million to sign with the Toronto Blue Jays in the June 2009 Major League Baseball draft, opting instead to return to UK to complete his senior year.
According to court records, UK senior associate athletics director Sandra Bell told Paxton after the fall 2009 semester began that a newspaper Internet blog site included a quotation from the interim president of the Blue Jays that he wished he could have talked directly to Paxton or his family instead of agent Scott Boras. Under NCAA rules, a player dealing with a professional team in a draft and his family are allowed to consult with an agent, but the agent is not allowed to talk directly to officials of the professional team.
Paxton signed an affidavit required by UK in which he said he did not give anyone consent to negotiate on his behalf with any professional team or league, according to court records.
Bell told Paxton and two of his attorneys, including Johnson, in the presence of UK attorneys that if Paxton participated in an NCAA interview and invoked his attorney-client privilege with Boras, she would view that as a failure to cooperate and suspend Paxton, Johnson said.
"Not in this lifetime is James ever going to tell them what he said to attorneys," Johnson said. "Nobody has to waive their attorney-client privilege."
The NCAA is on a witch hunt, Johnson said. And UK, as an NCAA member school, is not an innocent victim in the situation, he said.
Johnson said it is astonishing that Paxton could be treated so badly.
"James doesn't have to put up with interrogation by the NCAA. He has no obligation to speak to them. UK says he has no obligation to speak to them."
Paxton's attorneys are arguing that the player's rights under the Kentucky Constitution and the UK Student Code of Conduct are being violated. The student code of conduct says that a student must be informed in writing of 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 give testimony and their refusal to give testimony can't be considered evidence of responsibility for an alleged violation.
UK's attorneys argue that the student code of conduct does not apply to eligibility issues with the NCAA.
Baseball agent Dick Robinson of Lexington said that Paxton and UK have been put in an unfair position.
"The party at fault is the NCAA," he said.
"I would venture to say that over 90 percent of the players who get drafted in the first two rounds of the major league draft every year have an adviser and the adviser talks with the major league team," he said.
"The NCAA needs to realize that a student-athlete has the right to representation," he said. "James Paxton has the right of the law on his side."