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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.


Come on now. The guy didn't read the contract before advising his client to sign it. That's about as clear a case of negligance as there is. The fact that they were in different cities is a red herring. Have the Redskins fax or email the document. It's not that hard.

It's the NFLPA's job to make sure registered agents have at least a minimum competency. That's what they are doing here.

(And I seem to remember that Poston didn't realize that the bonus language wasn't included in the contract until many months later. That's inexcusable.)

Anonymous john -- 9/25/2006 2:05 PM  

Here's what I do not understand in this whole Poston/Arrington/Redskins/NFLPA matter:

The only party who was injured in all of this was LaVar Arrington; he didn't get the $6.5M bonus he thought he was supposed to get. And he got crosswise with the Redskins and eventually had to "buy his way out" of town.

Nevertheless, the "only injured party" here does not feel very injured; in fact, he wants to support Carl Poston in the actions pending against Poston.

So, if the "only injured party" isn't claiming that Poston injured him, why is the NFLPA doing what it's doing?

Anonymous The Sports Curmudgeon -- 9/25/2006 5:09 PM  

Actually, it's not true that Arrington was the only injured party. Each contract sets a precedent for every other deal negotiated thereafter. So, the fact that Arrington's deal was $6.5M light because Poston didn't bother to check the agreement, hurt every other player in the league, particularly every other linebacker.

Also, these players often have close relationships with their agent. The fact that a player doesn't want to pursue his agent in a case like this, should be binding on the union. They have a larger constituency to protect.

Anonymous john -- 9/25/2006 5:41 PM  

Rick, I think the reason the NFLPA is after Poston is now most likely because Poston filed the lawsuit in Federal Court.

This is a complicated matter, but I'm guessing if Poston had went along and agreed for the case to be heard by an arbitrator as the NFLPA agent regulations stipulate,the union wouldn't be so ticked off now, what with Arrington continuing to be so supportive of Poston.

What happened to Poston could so easily happen to any agent, particularly if it's true the Redskins lied. An agent should be able to trust representatives of a team and what they are "verbally" communicating.

If indeed the Redskins lied, they are far more to blame in this whole incident than Poston is. That said, Poston should have read the contract. I am not a Poston supporter generally, but let's be fair to the agents.

Anonymous Dave Burkey -- 9/25/2006 8:12 PM  

It's obvious after reading the ESPN article from July regarding the NFLPA's decision to suspend Poston for 2 years, that I was correct in that union Pres. Gene Upshaw was highly "ticked off" that Poston decided to take the union to court over the arbitration matter.

However, who can blame Poston for doing so as the recommendation for his 2 year suspension had come as early as this past March from the association's disciplinary committee.

It's highly likely they would have ended up suspending him anyway, though now we'll never know for sure.

Anonymous Dave Burkey -- 9/25/2006 9:07 PM  


I disagree that this is about ensuring a minimum competency level. Carl Poston has signed players to some of the richest NFL contracts ever -- and that's obviously a good thing for the constituency. Also, it's not "6.5 light" as you suggest because the settlement Arrington reached with the Redskins included a new contract. But in any event, I completely disagree that this is affecting the contracts of other linebackers any one bit. And you talk about the larger constituency the union needs to protect, how about protecting their constituency from the millions of dollars lost by players as a result of fraudulent and negligent investments made by investment advisors certified by the union?


The Disciplinary Committee initially suspended him for 2 years. Poston has the right to appeal the decision to an arbitrator, which he did right away, but it appears as though he views the appeal as a waste of time because the arbitrator is not truly neutral, especially since it's just a factual issue involved here. Maybe he believes that he has a better chance in court right now without having had an arbitrator rule against him on the matter. He wouldn't be able to get any court to overturn an adverse ruling by an arbitrator, and so he'd be stuck with it.

But I'm sure it's not just the lawsuit that has Upshaw "ticked off" as you suggest. You could probably throw in the fact that Poston sued the union in 2002 and, according to Poston's attorney as quoted in the article, the fact that he has gone to Congress.

Blogger Rick Karcher -- 9/25/2006 10:21 PM  

Rick --

The union's right to regulate investment advisors is tenuous at best. That is not at all analgous to a player contract advisor who DIDN'T READ THE CONTRACT HE ADVISED HIS CLIENT TO SIGN. If that doesn't call into question an agent's competence, I don't know what would.

And as for player contracts affecting the market, it's hard to believe you are serious. Do you really believe that agents and GMs don't frame their negotiations based on other contracts that are out there? That's exactly why the union has an interest in pursuing cases like this even if the player doesn't want to pursue it.

Anonymous john -- 9/26/2006 3:01 PM  

btw, the Kellen Winslow contract is another incident that calls into question Poston's competence. It wouldn't surprise me if that also played a factor.

Anonymous john -- 9/26/2006 3:02 PM  


You are grossly misunderstanding the Union's role in this whole affair. The NFLPA's job is to protect its clients. Poston is a certified agent of the NFLPA. Just because Arrington is not upset has nothing to do with whether the NFLPA should discipline Poston in this matter.

Your analysis seems as though an outside arbitrator has stepped into a dispute between family members. Yes, acts within a family can be forgiven, but can't the NFLPA step in and look out for future Poston clients that may not have been a part of that family? That seems to be the purpose behind the suspension.

By certifying Carl Poston as an agent the NFLPA, in effect, places their stamp of approval on him as an agent. If they do nothing to punish him then the Reggie Bush's of the world will have no idea that Poston might not be quite as competent (put lightly) as other agents.

Let's not forget that regardless of Arrington's personal relationship with Poston, that this contract dispute is what began Arrington's alienation with the Redskins. The NFLPA not only has a right, but also a duty to take action against Poston. If they should, then while else should they even have a regulation process?

Anonymous Robert -- 9/26/2006 3:50 PM  

First of all, to Robert-- It's clearly stated in NFLPA agent regulations that certification in no way means they are giving any agent their "stamp of approval".

Secondly, to John --

The Winslow contract ?? I have read more than once that in his contract, it specifically prohibited "motorcycle riding". Come on, an agent can only do so much , he can't hold the hand of all his clients at the same time.

I'm a big Browns fan and Winslow has no one to blame but himself. I think at this point he might even admit that himself. Make the players be accountable !!

Anonymous Dave Burkey -- 9/26/2006 9:45 PM  

John and Robert,

You both raise an excellent question that goes directly to the heart of this dispute: How is an agent's competence measured? In theory, the answer is based upon what a reasonable agent would have done under similar facts and circumstances. The next question is, who is the proper party to answer that question? Typically in society, an impartial judge, jury or arbitrator decides that question based upon prior case precedent, and a review of all of the evidence (including documents, witnesses, etc.).

I did not state that Poston was not negligent -- in fact, I asked the question, "Is that negligent?" [I then raised a couple of questions that a jury would most likely consider at a trial.] It's not a legal question, it's a factual question that typically is determined by a jury. The NFLPA, and the both of you, have determined that Poston was negligent without having heard his case and all of the witnesses, etc. The agent regulations essentially permit the union to first make a unilateral determination about liability, and if the agent contests liability, an arbitrator chosen and paid for by the union makes the ultimate determination.

Now, whether good, bad, right or wrong, the union's disciplinary process does not work in a way that the rest of society resolves disputes. First, there is no case precedent by which to measure agent competency (nothing is published). Secondly, while an agent can appeal the union's suspension, the arbitrator is selected and paid for by the union -- which calls into question impartiality. Thirdly, Poston did not negotiate the agent regulations with the union -- he must consent to the process if he wants to represent players. This is just the reality -- I'm not choosing one side over the other.

Blogger Rick Karcher -- 9/27/2006 8:51 AM  

"reasonable agent"...."impartial judge"....that is not reality, that is fantasy.

Anonymous Anonymous -- 9/27/2006 11:06 AM  

Well, it's not a system that is completely without parallel. The securities industry maintains an arbitration forum that they pay for, and if you have a claim against a broker, you submit yourself to that process. You're right, it's probably not the fairest manner of resolution, but I think Poston will have an uphill battle fighting. It was something he agreed to when he became certified.

Anonymous john -- 9/27/2006 12:01 PM  

Well, Poston's complaint is still pending and it was filed over 6 months ago. If the court wanted to dismiss it for lack of jurisdiction, you would think it would have done so by now.

Blogger Rick Karcher -- 9/27/2006 7:12 PM  



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