Sports Law Blog
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Monday, September 25, 2006
Why is the NFLPA after Carl Poston?
Two months ago, super agent Carl Poston's agent license was officially suspended for 2 years by the NFLPA for his alleged negligent conduct in the negotiations of LaVar Arrington's contract extension with the Redskins that took place back on December 26, 2003 via long-distance telephone and facsimile between Poston (who was at his office in Houston) and the Redskins personnel (who were in Washington). Earlier this year, the NFLPA issued a disciplinary complaint against Poston claiming that he was negligent by certifying a contract on behalf of Arrington that failed to include an agreed upon $6.5 million roster bonus. At the beginnning of this year, the NFLPA's disciplinary committee issued a complaint, held a hearing and imposed a two year suspension. Poston then appealed the NFLPA's determination to an arbitrator as permitted under the NFLPA agent regulations. But he also simultaneously filed a complaint in federal district court asserting that the NFLPA's disciplinary complaint was not based upon verified information; that he was denied the opportunity to be physically present at the NFLPA disciplinary hearing; that he is entitled to the appointment of a neutral arbitrator for his appeal (not one appointed and paid for by the NFLPA); and that the disciplinary complaint is time-barred under the NFLPA agent regulations.
But there's more to Poston's complaint against the union than alleged procedural violations. Poston claims that the Redskins lied to him by falsely indicating that the team had to have a completed deal by the end of the day on December 26, 2003 in order to obtain the desired salary cap relief, and that the Redskins promised Poston over the telephone on the 26th that the contract Arrington was signing in Washington that evening did in fact include the $6.5 million bonus. Immediately thereafter, the NFLPA filed a grievance against the Redskins on behalf of Arrington for breaching the agreement and not including the $6.5 million bonus in the contract as promised, and the union hired Jeffrey Kessler's law firm Dewey Ballantine to handle the grievance against the Redskins on Arrington's behalf. Arrington and the Redskins ultimately settled the grievance amicably and the settlement provided Arrington with a new contract. Kessler is now the attorney on behalf of the NFLPA with respect to the NFLPA's disciplinary proceedings against Poston, and, according to Poston, the allegations in the disciplinary complaint stem from information gathered by the NFLPA's lawyers while representing Arrington in the grievance against the Redskins. Poston asserts in his complaint that it's a conflict of interest for (1) Kessler to use such information without Arrington's consent and (2) Kessler to pursue a disciplinary complaint against Poston (which Arrington opposes) because it's against the interest of Kessler's client (Arrington) to do so.
Poston makes a good point that the arbitrator in disciplinary proceedings with agents is not truly "neutral" although the NFLPA agent regulations state it as such. A neutral arbitrator is one that is mutually agreed to by the parties or chosen through an impartial selection process. Poston obviously feels that it's a waste of his time to try to argue his version of the case in front of the arbitrator. If an arbitrator rules against him, no court could reverse the arbitrator's decision.
But in any event, why is the union after Poston? The NFLPA is charged with looking after the best interests of the players. Here, the only player's interest that is affected would be Arrington's, and he resolved his dispute with the Redskins and he has consistently opposed any disciplinary action against Poston. If Arrington's not upset with his agent, then why is the NFLPA? Arrington recently appeared in court on behalf of Poston on this matter, and the judge acknowledged Arrington's presence, saying: "I see him here today and I recognize that he's very loyal to Mr. Poston."
The union filed a grievance on behalf of Arrington against the Redskins for bad faith negotiations with Poston by taking advantage of the situation with Carl in Houston and by breaching a verbal promise to include the bonus in the contract that Arrington signed in Washington at the "final hour" without the presence of his agent. Interestingly, now in the disciplinary action against Poston, the union is taking an opposite position by essentially claiming that Poston was negligent in not assuming that the team he was negotiating with would be acting in bad faith. Is that negligent? Giving the union the benefit of the doubt here, even if Poston completely fabricated his version of the story, it seems highly suspect that he would just choose to not review the contract of one of his elite clients and overlook whether the contract contained a $6.5 million bonus. Carl is an accomplished attorney and agent, and he and his brother Kevin are notorious for being zealous advocates on behalf of their clients and have obtained some record-breaking contracts over the years. Indeed, when an agent's fee is tied to the value of the contract, you can bet that the first thing the agent will do is ensure that the amount of the player's compensation stated in the contract is accurate!
Having said all of this, I am outspoken about the necessity for players associations to take a more proactive role in their efforts to combat agent misconduct, but this one just doesn't seem to fit the mold.