Sports Law Blog
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Wednesday, November 29, 2006
David Dunn Accepts 18-Month Suspension

Two weeks ago, I raised some questions regarding the proper role of unions in disciplining agents and mentioned that agent David Dunn was appealing the NFLPA's 2-year suspension of his license. This week in Street & Smith's Sports Business Journal, Liz Mullen reports that Dunn and the NFLPA avoided arbitration and agreed to an 18-month suspension ["Dunn and NFLPA agree suspension will last 18 months" (subscription required)]. According to NFLPA general counsel Richard Berthelsen, “This suspension will take Dunn through two drafts and two free agency periods, so it is essentially equivalent to a two-year suspension.”

The NFLPA's agent regulations mandate that all disputes be resolved through arbitration. The settlement evidences that Dunn didn't think he had any chance whatsover in defending his case in front of the NFLPA's arbitrator, Roger Kaplan. As Berthelsen correctly notes, the end result here is essentially a 2-year suspension, which is no different than the suspension originally imposed by the NFLPA. So does that really constitute a settlement?

Dunn represents over 60 NFL players. The ramifications of this suspension, which include the strong likelihood that he will lose clients to other agents as well as the lost revenue on contracts he would have negotiated during this 18-month period, would seem to give Dunn every incentive to vigorously fight it. He could have at least tried to convince the arbitrator to reduce the suspension to one year. So why didn't he?

The NFLPA's agent regulations regarding the selection of an arbitrator state: "The NFLPA shall select a skilled and experienced person to serve as the outside impartial Arbitrator for all cases arising hereunder." There is also a provision stating that the fees and expenses of the arbitrator shall be borne by the NFLPA. These provisions raise some interesting questions. Is an arbitrator that is selected, and paid for, by one of the parties to a dispute really "impartial"? Maybe Dunn's decision to accept the suspension was influenced, in part, because he doesn't feel Kaplan can be impartial. And when the same arbitrator is selected on a continuous basis, is he really an "outside" arbitrator or does he gradually evolve into an "insider" through repeated use?

The counter argument is that, by deciding to represent players, agents consent to all of the union's agent regulations. But are agents really consenting when they have no choice or ability to negotiate any of the provisions? Could it be argued that union agent regulations are adhesion contracts?


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