Agency, Cam Newton and Johnny Manziel -- Part 2: Teaching basic legal analysis through college football.

In 2010, the father of Auburn University Heisman Trophy winner Cam Newton sought $180,000 in exchange for his son's commitment to play football at Mississippi State University. Mississippi State did not pay and Newton went to Auburn. Ultimately, Newton was not penalized for violating NCAA rules, because there was no proof that Newton knew his father or a third party solicited money from Mississippi State.

As a result of the Newton situation, the NCAA amended its definition of an "agent" in January 2012. The manual on major college athletics now defines an agent as:

"[A]ny individual who, directly or indirectly: (a) [r]epresents or attempts to represent an individual for the purpose of marketing his or her athletics ability or reputation for financial gain; or (b) [s]eeks to obtain any type of financial gain or benefit from securing a prospective student-athlete's enrollment at an educational institution or from a student-athlete's potential earnings as a professional athlete."

It further provides that "[a]n agent may include, but is not limited to, a certified contract advisor, financial advisor, marketing representative, brand manager or anyone who is employed or associated with such persons."

The NCAA's definition of an agent is inclusive, because the word "or" is prevalent. If "and" was used more than "or," the definition would be more restrictive and harder to satisfy. In the list of examples, "but is not limited to" indicates that the definition of an agent is to be broadly construed. Further evidence of this construction is found in the last 10 words of the definition: ". . . or anyone who is employed or associated with such persons."

Application of this construction shows that the 2012 amendments encompass both the Cam Newton situation and the more recent Johnny Manziel situation. In the latter, the friend and "personal assistant" of Manziel, the 2012 Heisman Trophy winner from Texas A&M, allegedly told autograph brokers that Manziel would no longer provide autographs for free. The allegations include later payment.

In 2010, Newton's father sought to obtain financial gain or benefit from Mississippi State boosters in exchange for his son's enrollment at the school. This met Part (b) of the above definition (Rule 12.02.1(b) of the Division I manual). Manziel's personal assistant, who was hired by Manziel's family, sought financial gain by representing Manziel for the purpose of marketing his reputation for financial gain through autograph sales. This met Part (a) of the above definition (Rule 12.02.1(a) of the Division I manual).

The definition does not require the agent or individual to actually receive money. It just requires the solicitation of financial gain by an agent. Accordingly, the Manziel situation centers around whether his "personal assistant" was an agent, if the allegations are true, rather than whether Manziel actually received money for his signature.