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Tuesday, December 18, 2007
"Fundamental Fairness in Union Regulation of Sports Agents"

That's the title of my latest article published this month in Connecticut Law Review, which can be downloaded from here. By now you may be tired of my views regarding the agent biz, as well as my disdain for lack of due process generally. Well, this piece combines both, and addresses whether the agent regulations unilaterally adopted by the players associations afford agents a fundamentally fair enforcement process when the agent is accused of misconduct by the union. This issue involves a complicated interplay of multiple bodies of law that govern the unique tripartite player-union-agent relationship, including Section 9(a) of the NLRA, basic notions of due process, the laws governing private associations, contract law and the Federal Arbitration Act (FAA).

My article compares and contrasts various provisions contained in the agent regulations of all four players associations. While I certainly acknowledge the union's compelling interest in combating agent misconduct and that the union should be afforded deference to enact and interpret its own rules and regulations, I am only willing to stretch those concepts so far. In my view, there are two provisions particularly concerning from a fundamental fairness standpoint: a provision that permits the union to suspend or revoke an agent's license prior to a hearing when the union determines that "extraordinary circumstances" warrant it; and a provision that allows the union to unilaterally select the arbitrator to decide all agent appeals. My article opines that the first provision violates basic notions of due process because suspension of an agent's license not only directly and immediately impairs an individual's livelihood but can cause irreparable damage as well, and that the second provision is invalid under the FAA on grounds of both procedural and substantive unconscionability. I conclude that neither provision is essential to preserving the union's legitimate Section 9(a) interest, and should therefore give way to the agent's compelling interest in a fundamentally fair enforcement process.

If you're looking for something to read over the holidays, I hope you'll check it out.


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