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Wednesday, November 22, 2006
Another Agent Suing NFLPA Over Due Process

In September, I discussed Carl Poston's lawsuit against the NFLPA claiming that the union violated its agent regulations when it imposed a 2-year suspension as a result of his dealings with the Redskins on behalf of his client LaVar Arrington, including a breach of the union's contractual obligation to provide a "neutral" arbitrator in which to appeal the suspension (because the arbitrator is selected, and paid for, by the union). Poston also claims that it's a conflict of interest for (1) union counsel Jeffrey Kessler to use certain information obtained in LaVar's grievance against the Redskins without LaVar'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.

Two days ago, veteran agent Steve Weinberg filed a lawsuit claiming that the union stripped him of his past, present and future income and all of his NFL clients when the union decertified him back in 2003 for violations of the union's agent regulations. Weinberg is seeking $36,750,000 in damages -- $12,000,000 in compensatory damages and $24,750,000 in punitive damages. The press release, drafted by Weinberg's lawyer, states:
Weinberg believes that this lawsuit will show that he received disparate treatment from other contract advisors, partly for speaking out against the NFLPA's failure to abide by and enforce its own regulations. Weinberg also believes that discovery in this case will uncover certain valuable information that the NFLPA has previously kept from its members.

The NFLPA's ability to immediately strip an agent of his certification -- overnight and without due process -- has a chilling effect on all agents and stifles their advocacy for their players. The NFLPA took away Steve's livelihood and he wants it back. He's fighting for his constitutional rights. One day he had a livelihood and 42 NFL clients. The next day he had neither.

After the NFLPA immediately revoked his certification in February 2003, all 42 of Weinberg's NFL clients, including 25 free agent players, most of whom he was preparing to represent in upcoming free agent contract negotiations with NFL teams, suddenly were forced to seek out new player representatives. The suit contends that these NFL players were financially harmed by the NFLPA's actions against Weinberg, even though the mission and sole purpose of the NFLPA is to protect the players.
The NFLPA's agent regulations are the strictest of any of the unions' regulations, and the NFLPA (unlike the other players associations) obviously takes the position that enforcement of its regulations is the best way to combat agent misconduct. But stricter regulations and vigorous enforcement doesn't appear to be deterring agent misconduct. So here's my question: Is the huge expense of enforcement, as well as the time and expense involved in fighting lawsuits against agents, an efficient use of the union's resources?

After Weinberg was decertified, NFLPA general counsel Richard Berthelsen made an interesting remark: "Players aren't lawyers. They're players .... at the very least, the agent has an obligation to keep his players from being interfered with as they prepare for an important game." Berthelsen is absolutely right. In my recent Willamette Law Review article I take it one step further and discuss how even "permitted" player solicitation and recruitment by agents substantially interferes with players. I also discuss how the agent commission fee arrangement, combined with the rise in player salaries over the years, is providing a huge incentive for agents to vigorously compete for players, which naturally leads to agent misconduct in a variety of forms.

Last week, I raised some questions about the proper role of unions in disciplining agents. I question whether enforcement is the answer. It requires the union to make subjective assessments about particular agents over others as well as difficult factual determinations. And as the "exclusive" representative of the players under the NLRA, should the union be fighting claims brought by agents that it arbitrarily and unfairly applied its agent regulations?

Why not give players the option (not a requirement) of having a union representative negotiate the contract? With its access to information and highly qualified lawyers, the unions are arguably better equipped to negotiate contracts and oversee the process than agents anyways. One could argue that the utility of an agent is also diminished with respect to "rank and file" and "franchise tag" players that don't have much room to even negotiate. If a player then decides to go outside the union and hire his own agent and is harmed as a result, the union could say, "I told you so."


Berthelson's "interesting remark" after Weinberg's decertification appears to be extremely invalid, in reference to Weinberg's case, at least. After reading Weinberg's lawsuit, it becomes clear that he did everything possible to keep the players from becoming involved, and even seeked help from NFLPA officials to prevent that from happening. However, the NFLPA didn't lift a finger or give even one suggestion.
Other cases - yes, definitely - but if you have time, read the lawsuit, you'll find out Berthelson's remark wasn't so "interesting" in Weinberg's case.

Anonymous Anonymous -- 11/28/2006 1:40 PM  

I think there would be a serious conflict of interest if union representatives represented players in contract negotiations. The goal/mission/purpose of the union is to protect and champion the interests of all of the league's players, current, former, and future, as a collective group. The goal of an agent is to get whatever his client wants, which is typically the best combination of money and career stability/job security. Getting a client the most money is not necessarily consistent with doing right by the general union constituency.

It would probably be fine for minimum-salary players, so perhaps it would work in most cases if it were optional as you suggest, but there's a lot of danger that the union would get sued for breach of fiduciary duty. If the union started getting sued for that or negligent representation, it would defeat your entire rationale for doing this -- to deregulate the agents and save money.

Anonymous Tim Gerheim -- 11/30/2006 2:16 AM  

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