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Tuesday, November 12, 2013
Do Conflict of Interest Rules Prohibit the NFLPA from Representing Both Jonathan Martin and Richie Incognito?

The following post is written by Joseph Kohm, Jr., an attorney and agent at Diakon Baseball Group in Virginia. Kohm represents, among others, Blue Jays All-Star pitcher Steve Delebar.  Kohm has also taught sports law at Regent University School of Law and in the late 80s played on Syracuse's men's basketball team.  We're pleased to have Joe's contribution.  He also authored the Sports Law Blog post titled What if Rick Pitino Had Been A Woman? in 2009.  -- Mike McCann

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It was interesting to watch NFLPA head DeMaurice Smith tell ESPN’s Stuart Scott before Monday night’s Dolphins-Buccaneers game that the Players Association could adequately represent the interests of both Jonathan Martin and Richie Incognito without a conflict of interest. NFL Commissioner Roger Goodell likes to wield the league’s Personal Conduct policy like the sword of Damocles and based on the limited information that has been made public to date, both players could be subject to discipline. Under general labor law principles, it is conceivable that the NFLPA could claim to represent both players. As the designated bargaining unit for the players, the union has the duty of fair representation. A breach of the duty of fair representation occurs when a union’s conduct toward a member is arbitrary, discriminatory, or in bad faith. I am assuming that this is the lens through which the NFLPA is viewing their role.

However, DeMaurice Smith is a lawyer, and I am guessing that many at the NFLPA are lawyers. As such, their conduct should be governed by conflict rules consistent with Model Rule of Professional Conduct 1.7, which states, “… a lawyer shall not represent a client if the representation involves a conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client…” As this matter progresses, how could both players be assured that the union could aggressively pursue a course of action to seek justice for an aggrieved player, yet vigorously defend the interests of an accused player during an investigation, or a punished player through the appeals process? Even with the consent of both Martin and Incognito, I do not see how the NFLPA jumps over the hurdle in the exception provision of the Rule that permits representation if, “ the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal…”

One possible solution would be to have the NFLPA appoint an experienced union leader from another sport to represent the interest of either Martin or Incognito in the very limited scope of matters pertaining to or arising out of the events in this case. Don Fehr would seem to be the likely choice. This way, the NFLPA avoids any hint of bias and both Jonathan Martin and Richie Incognito are assured that they will receive the full scope of the rights and benefits they are entitled to under their Collective Bargaining Agreement.

Joseph Kohm, Jr.


1. You're missing the larger picture that the goal of the NFLPA in this situation is to protect the process, i.e., to make sure each player receives the procedural rights commensurate with the CBA and labor law. I don't see how this is a conflicting interest - in fact, it's the union's duty pursuant to federal labor law to treat each of the players equally. See, e.g., Aaron Hernandez.

2. Concerning the possible waiver of any conflict, you claim the players could not do that. However, there is no "litigation" or "tribunal" before which Martin and Incognito have made competing claims. Moreover, you haven't defined, and don't know, the scope of the representation.

There is a miniscule chance that one day Goodell could try to discipline Icognito based on Martin's statements and Incognito will want the chance to confront his accuser during an appeal hearing. Then we're in the land of Bounty-gate and only then could the NFLPA not represent Martin and Incognito. But that's not the current situation.

3. You ignore the fact that Martin is represented by David Cornwell.

4. There's no way Fehr, the acting head of the NHLPA gets involved. He and the NFLPA (and its outside counsel Jeff Kessler) have always had a different approach to union-management relations, e.g., decertification.

Anonymous Anonymous -- 11/13/2013 3:12 PM  

Great insight, Joe! Couldn't agree with you more. Ben Madison

Blogger Ben Madison -- 11/13/2013 6:11 PM  


Insightful blog! Glad someone is paying attention to the ethics of those who are supposed to be the "neutral" representatives.

Ben Madison

Blogger Ben Madison -- 11/13/2013 6:12 PM  

This is actually pretty standard stuff for most unions-union leadership routinely gets involved in representing the interests (with the employer, not in a court)of members with claims against each other, or who are involved in member on member tortious conduct. There's no conflict in the legal representation sense under the circumstances; in collectively bargained workplaces the union may be the exclusive arbeiter for something like this that doesn't rise to the level of a breach of employer policies or a legal duty.

Anonymous Anonymous -- 11/20/2013 12:53 PM  

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