NFL Agents and Tortious Interference
I am currently representing an NFLPA-certified contract advisor (better known as an “agent”) in a dispute with another agent. The NFLPA’s Regulations Governing Contract Advisors require certain types of disputes between agents (and also between agents and players) to be adjudicated through an NFLPA-governed arbitration process. This has been the case since 1994, shortly after the NFLPA recertified itself as the bargaining representative of NFL players following the White v. NFL settlement. By recertifying itself, the NFLPA regained its authority to certify and regulate agents under the National Labor Relations Act.
Representing an agent or a player in these grievances (as I’ve done in the past) provides an interesting window into the NFLPA arbitration system and case law. In order to allow the parties to be properly prepared, the NFLPA provides the parties with all prior arbitration decisions brought under its auspices. At present, there have been approximately 290 decisions in disputes between an agent and a player (almost always involving an unpaid commission or the return of money loaned). On the other hand, there are only 22 decisions in an action brought by an agent against another agent – less than one a year.
The paucity of actions does not necessarily reflect the absence of grievances initiated. Arbitrator Roger Kaplan – who has handled almost all of the arbitrations brought under the NFLPA Regulations – is known for having a deft hand in forging settlements before any decision is rendered.
Nevertheless, what is particularly interesting is the nature of the claims brought and the results reached in the “agent v. agent” cases. In 18 of the cases, the principal claim was, what would be called in civil litigation, tortious interference (my current case is not such a case). Section 3(B)(21)(a) of the NFLPA Regulations prohibits an agent from:
Initiating any communication, directly or indirectly, with a player who has entered into a Standard Representation Agreement with another Contract Advisor . . . if the communication concerns a matter relating to the: (i) Player’s current Contract Advisor; (ii) Player’s current Standard Representation Agreement; (iii) Player’s contract status with any NFL Club(s); or (iv) Services to be provided by prospective Contract Advisor either through a Standard Representation Agreement or otherwise.
Nevertheless, Section 3(B)(21) does not apply if the player initiates the communication, if the player has less than 60 days left on his player contract, or to generalized marketing materials.
You don’t have to spend much time with an agent to understand the fierce competition within their industry – which is horribly cut throat (about half of all agents don’t have a single client). However, even though agents regularly accuse other agents of stealing each other’s clients, there are only 18 cases where agents brought an action against another agent claiming tortious interference under Section 3(B)(21)(a). And in all 18 of those cases, the arbitrator found for the respondent, determining that the complaining agent had failed to prove a violation of Section 3(B)(21)(a) or its predecessor provisions.
There are a variety of factors which may contribute to an undefeated record for respondents in 3(B)(21) cases: (1) limited discovery in arbitration likely makes it challenging to prove any improper communications occurred; (2) many alleged improper communications likely occur orally and in a group gathering, making the question of who initiated what and when challenging; (3) as mentioned above, Section 3(B)(21) provides a variety of exceptions to the prohibition against contact, seemingly in order to enable players to be well-represented during contract negotiations; and (4) many agents are likely resigned to the nature of their industry and have little faith in seeking relief for alleged wrongs.
Solicitation of another agent’s clients undoubtedly occurs. Several courts have found that such behavior appropriately provides players with competitive choices. See, e.g., Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862 (7th Cir. 1999); Champion Pro Consulting Group, LLC v. Impact Sports Football, LLC, 116 F. Supp. 3d 644 (M.D.N.C. 2015) (disclosure: I represented Impact Sports in this case); Bauer v. Interpublic Group of Companies, Inc., 255 F. Supp. 2d 1086 (N.D. Cal. 2003). But at what point is the behavior inappropriate? Unfair? Tortious interference? And if so, do NFL agents have meaningful recourse? The current arbitral case history suggests these are open questions.