Sports Agent and Sports Lawyer Blog

As a sports lawyer, my job is to represent my athlete clients in lawsuits. However, there are times when filing a lawsuit is not in the client’s best long-term interests, and it is my job to advise the client of this.

Take the recent ruling in the Reggie Bush lawsuit. Bush was sued by a former investor, and Bush asked the court to move the case to arbitration. One reason that parties to a lawsuit often seek to avoid the court system, is that they want to avoid the publicity that comes hand-in-hand with legal matters. All court documents are considered public material, which means that anyone – blogs, reporters, fans, etc. – can get their hands on the documents. In arbitration, on the other hand, there is no particular obligation to make the material public. Arbitration pleadings are not filed at the courthouse, as arbitration is a private matter.

In Bush’s case, his advisers do not want the NCAA to get their hands on deposition transcripts. If the NCAA reviews the depositions and finds grounds to bolster their already ongoing investigation, that could be bad news. The article says that Bush’s lawyers will now seek summary judgment. If they lose, you can bet that their will be a settlement so that Bush’s testimony does not see the light of day.

This case proves that there are always valid reasons not to sue, even when the athlete thinks a lawsuit is the best course of action.

A class action sports lawsuit filed against Slippery Rock University was recently settled when the school agreed to make additional improvements. The women sued three years ago after the school eliminated eight sports, including three women’s sports. The lawsuit settled in 2007, but remains in the news.

The athletes this year were forced to ask the court to reopen the lawsuit because of alleged “disparities” in women’s facilities:

"There was a huge, huge discrepancy between this amazing stadium the boys played baseball in and this rutted field the girls played softball on," said Abbe Fletman, one of the attorneys who represented the female students.

Finally, the school has relented and agreed to upgrade its facilities and make a few additional changes. In my opinion, the allegation of the school being “deeply hostile to women athletes” makes it sound like the school has a long way to go before the situation is fully and finally resolved beyond the cosmetic and tangible changes.

One of the most popular sports law questions asked by rookie pro athletes who are not used to be in the news is whether they can sue for libel? We have covered the basis for libel in a couple of previous blog posts.

While sports lawyers are not all-knowing, if an attorney advises you that you do not have a case, sometimes it is wise to take the lawyer’s advice. Consider the case of Kevin Millen, a former Georgetown basketball player who sued the Memphis Commercial Appeal newspaper alleging libel. He acted pro se, which means that he was his own attorney. I assume he proceeded on his own after his attorney either dropped out or after he could not find a lawyer to take his case.

Not surprisingly, his hand-written complaint was rejected. Surprisingly, he made it all the way to the United States Supreme Court, which recently denied certiorari:

The court said Millen had "repeatedly abused this court's process," and directed the court's clerk not to accept any further petitions from him in non-criminal matters.

People who feel that they have been unfairly criticized have a difficult time believing that certain media institutions are not actually out to get them. They also misapprehend the strength of this country’s freedom of the press, which everyone knows is a fundamental tenet of our democracy. Sometimes it is best to just let things go.

Here’s a strange sports lawsuit that is sure to gain attention as the story picks up steam. A high school softball player in New York City is suing the city, her school and her coach, claiming that she injured her ankle because the coach failed to teach her how to slide.

Fifteen-year-old Alina Cerda, a freshman third baseman, alleges that she broke her ankle last season during softball practice. The basis of the lawsuit seems to be an allegation of negligent supervision:

Alina's lawyer, Clay Evall, says Brown wasn't supervising the sliding drill but had some of the team's veteran players teaching the new girls how to do it.

"He wasn't instructing them whatsoever," Evall said. "He told her to watch the older girls do it."

I can understand the plaintiff's misery here but I have to wonder about the extent of her damages. I realize she is in pain and she missed her entire freshman season and still has not fully recovered. But it’s December and she has several months until next season. Also, the school district's health insurance plan covered her medical costs, right? It’s doubtful that she is claiming damages from lost future earnings, as softball players do not have any earning prospects. I guess she may be claiming a lost chance at a college scholarship but that seems like a stretch. Without any damages to speak of, it seems unlikely to me that she will prevail even if the coach was found to have been negligent in his supervision.

The widely reported lawsuit against Hall of Famer Joe Namath in which a delivery driver alleges that the former quarterback’s dog bit him, has garnered substantial attention and is sure to snowball among the sports world.

The facts are straightforward. The driver alleges that he was attacked while making a deliver. As a result of the attack, the driver alleges substantial medical damages and in inability to work.

Just last month, his yellow Labrador retriever Leo was declared to be dangerous:

As a dangerous dog, Leo must now be muzzled and leashed even on Namath's property. It must have a microchip implanted and carry a special "dangerous" dog designation tag. Namath must also now post signs on his property warning of the dog's presence.

The alleged incident raised this week happened two years ago, before Leo was declared dangerous. In other words, the dog was not legally dangerous at the time of the bite, but was subsequently adjudicated dangerous. It remains to be seen how the later-designation as dangerous will impact this case moving forward.

When a reporter makes an irresponsible, but not libelous statement about a client, does a sports agent have an obligation to contact the reporter to respond?

This article on NBCSports.com’s usually excellent Circling the Bases blog by Aaron Gleeman contains a ludicrous statement. In reporting about St. Louis Cardinals prospect David Freese’s recent arrest for driving while intoxicated, Gleeman reports that the arrest is unlikely to damage Freese’s chance at making the Cardinals opening-day roster.

Gleeman reasons that the fact that Cardinals manager Tony La Russa was once arrested for driving under the influence makes it less likely that the Cardinals will come down on Freese. While this criticism of La Russa stops short of libel, it’s absurd for Gleeman to argue that because La Russa condones driving under the influence simply because he was once arrested for doing so. I do not know this for a fact, but I think it is safe to say that La Russa’s arrest, while embarrassing and not something to laugh about given the potentially deadly ramifications of getting behind the wheel while drunk, does not make him a sympathizer with drunken drivers. If the arrest has no impact on Freese’s shot at the roster, it’s because drunk driving does not impact one’s ability to play third base.

So what is the sports agent's obligation? La Russa will make the hall of fame and probably does not care about this type of smear job by a reporter. Still, should his agent contact the reporter to tell his side of the story? What if instead of La Russa, the manager in question was a substantially lesser-accomplished baseball man? Would that make it more important for the agent to step in and engage in spin control? It's often unwise to engage in serious back-and-forth the media and bloggers, because they can distort your statements. Still, as an agent, I think it is important to treat every instance such as this one on a case-by-case basis, and consider at least a polite e-mail inquiring as to the basis for the reporter's statements.

Do sports agents wield any influence with their clients’ coaches? When heralded Detroit Lions rookie Matthew Stafford was declared out for Sunday’s game against the Ravens, Stafford’s agent undoubtedly breathed a huge sigh of relief.

Stafford’s shoulder has been bothering him for several weeks. He famously threw a last-second touchdown pass with the injured shoulder last month, but the Lions are a team that is going nowhere. Why risk permanent and debilitating injury if Stafford is unable to single-handedly revive this moribund franchise’s hopes? No matter how well he plays, he will not salvage the season, which means that Stafford should be held out, and should have been held out for the entire time he was injured.

Jack Bechta recently wrote that sports agents should intervene and insist that their client be properly evaluated, and if necessary, held out of game action. Sports agents have to tread a thin line between their ensuring that their intervention does not cause any additional problem between their client and the team. But as we have written previously, sports agents have a fiduciary duty to protect their clients’ long-term interests. If intervention is the best way to protect the interests, then the agent is obligated to speak up.

Mark Woods, who never fails to provide comprehensive updates on all the latest happenings of basketball in Great Britain, has reported on the Worcester Wolves controversy surrounding the firing of coach Chuck Evans, and the apparent racial feud that resulted in the team canceling its entire December schedule.

Now the local Worcester newspaper has weighed in and reprinted what it calls “players notes” taken at the incendiary meeting. From the excerpt:

Coach Evans continued the two hour film session pointing out all the faults that the white players made during the game with racist remarks to put down the white players with comments including: "Skouson, the team you coached two years ago that I played on it, tell me who was on it, mainly black guys and you, that's why we were so tough"...I replied "We had a mixed race English player, and African-American/Colombian/White player, a mixed raced white/Hispanic/black player, you (African American) and me were the main players, but race had nothing to do with our performance" Coach Evans responded "Ya but their dads were black...see, mainly tough black players...only a couple white guys, and you think I'm crazy?" Coach Evans continued with such comments: ..."bitch ass pass...that's my white guys for ya" ..."you see, you see, look at the two guys involved in making that turnover, two white guys, I'm not crazy"

I communicated with Coach Evans a handful of times regarding some of my clients and found him to be a true professional. Whether these remarks attributed to him are accurate is unclear, because Coach Evans provided statement that amounted to “no comment.” Evans is probably doing the right thing, as there can be nothing gained from engaging in a war of words via the media.

If you have ever wondered whether a professional athlete’s endorsement of a product produces measurable results, check out this unusual sports law controversy in Japan. Consumers are suing a purified water company because it falsely used Seattle Mariners star Ichiro’s likeness even though Ichiro does not use the product.

One of the comments from a plaintiff is startling:

In his lawsuit, the man claims that he trusted the company because he was told that Seattle Mariners outfielder Ichiro Suzuki regularly drinks the company's water and that it was a sponsor of the Beijing Olympics and the football World Cup."

It’s not uncommon for an athlete to sue a company which falsely uses his likeness. I have never seen a case such as this one, in which consumers believe they were duped by a false endorsement. A closer review of the article reveals that only part of the lawsuit is about Ichiro's allegedly false endorsement; a rogue investor may have hyped the company, thereby inducing investors to lose large amounts of money. Still, I think this lawsuit speaks to the power of professional athlete branding - if a business is linked with the right athlete, the public will buy the product.

When Aroldis Chapman’s former sports agent sued his new agent this week, the lawsuit threatened to put the entire system of sports law and sports agent representation on trial. I mean this in a literal and figurative sense – the unsavory practices of the business of sports agents may be brought to light publicly, as well as in the courtroom.

The facts of the lawsuit are undisputed. Chapman, a recent Cuban defector who is considered a sure-fire superstar, signed with Athletes Premier International and Edwin Mejia after his defection. He became disenchanted, and subsequently signed with a more established agency, Hendricks Sports Management. So API and Mejia sued Hendricks, alleging tortious interference with their business relationship and also unjust enrichment.

This article from the Associated Press contains a hint that if this matter goes all the way to trial and up the chain of appellate courts in Massachusetts, the entire realm of player representation could be on trial:

Stealing clients is a longtime and lucrative practice among some sports agents, who can earn up to 5 percent of salaries reaching into the hundreds of millions of dollars.

This is probably an accurate statement that most people who aren’t in the sports law or sports agent business don’t understand or don’t realize. A former college baseball teammate of mine who is now a high-ranking executive in the front office of an American League team told me that it happens every day in baseball and he has never seen such a switch result in litigation. Sports law experts apparently agree, as the article notes:

"Generally speaking, players can change agents at their discretion," said Michael McCann, a sports law professor at the Vermont Law School. "There is certainly evidence of agents poaching clients (in cases) that don't result in litigation. Maybe it's unethical; maybe it's wrong; but it happens."

In most industries, if you sign a contract, you are bound by the contract. As we blogged earlier, it’s not always that way among college coaches. Still, that does not mean that an athlete, coach or even an agent should give up his right to pursue justice because standard business practice in his industry involves breaching contract. While the industry may view contracts as not worth the paper they are printed on, courts will often see things differently. Anyone who thinks he has suffered damages from a breached contract or because a competitor has interfered with his work should consult a qualified sports lawyer for legal advice.

When a Hennepin County judge threw out all but one of the claims against Minnesota basketball coach Tubby Smith in the lawsuit brought by a former assistant coach, it seemed as though two worlds collided.

In one universe, we have head coaches who regularly break existing contracts to jump from one school to the next. As Dan Fitzgerald wrote recently in his comprehensive roundup of the issue on the blog Connecticut Sports Law, college football effectively has a free agent system for head coaches, in which coaches can come and go as they please.

In the other world, we have assistant coaches, who have to make life-altering decisions based on the word of head coaches. In the Smith lawsuit, former assistant coach Jimmy Williams sued because he thought Smith had offered him a job coaching the Gophers. Smith left his job at Oklahoma State and sold his Oklahoma home in what he says was reliance on Smith’s verbal statements. Smith did not get the job at Minnesota because Smith’s boss nixed the decision. The reasons for the veto remain unclear. Williams, a former Gophers player, was apparently thought to be contaminated by his association with scandal-plagued Gophers teams of the 1970s and 80s.

So college head coaches can come and go as they please. College assistant coaches have to rely on promises made by head coaches and by no means can they come and go as they please. In fact, the judge held that Williams intentionally breached his own contract when he left Oklahoma State in reliance on Smith’s alleged promise:

The judge wrote that she granted dismissal on the count of interference with contract because Williams consciously and voluntarily breached his contract with Oklahoma State. She wrote that she dismissed the claim of withdrawn promise -- a legal theory called ``promissory estoppel" -- because the Court of Appeals upheld the dismissal of that identical claim against the university and Maturi on the grounds that litigating that claim would illegally intrude on the university's hiring decisions.

The only remaining claims against Smith are negligent misrepresentation and fraud. The judge was wise to strike the punitive damages claim because there does not seem to be the required element of malice for such a claim.

Did Bobby Hurley consult his sports agent before making this investment? Bobby Hurley is being sued over his horse racing investment. Hurley, a basketball star at Duke who had his NBA career cut short due to a car accident, is alleged to owe a Lexington, Kentucky, bank $946,962.

The suit further states that the borrowers executed a loan and security agreement granting the bank a security interest in all of its then-owned or thereafter-acquired shares and fractional interests in the stallion Songandaprayer. It also seeks any income stemming from the Songandaprayer shares, identified as shares 1 through 12, owned by Hurley and his operations.

This type of investment default could happen to anyone, but because a former pro athlete is involved, it garners additional scrutiny in the media. It’s also yet another cautionary tale, proving once again that athletes should consult qualified investment professionals, to help manage their money.

When Bears quarterback Jay Cutler started mouthing off about what he perceived to be poor officiating, the media in Chicago took notice. Apparently, Cutler has been complaining during the game at a level far more than normal to the officials. Maybe he is looking to use them as scapegoats for his poor on-field performance.

For some reason, Bears coach Lovie Smith has done a poor job of bringing Cutler’s complaining under control. So does that mean Cutler’s sports agent should try to step in? Sports agents are not babysitters, but they often have the means to persuade their clients that certain actions have adverse consequences. This is not a complex formula: If Cutler were perceived as a “good guy” he may be more likely to procure additional well-paying endorsements. If he were perceived as a “complainer” then Cutler’s public persona will not be well-received.

When Congress convened a hearing this week to consider whether the BCS National Championship game is a legitimate determination of the college football national championship, fans’ collective eyes must have rolled.

While the BCS is biased, this quote sums up my reaction:

"With everything going on in the country, I can't believe that Congress is wasting time and spending taxpayers' money on football," Bill Hancock, the BCS executive director, said in a phone interview with The Associated Press. "We feel strongly that managing of college sports is best left to the people in higher education."

The committee did not see things my way. The bill passed the committee, although this is the type of dog and pony show that will never see passage by he full House. In the unlikely event of passage, the bill is guaranteed to trigger a major legal challenge.

Sometimes you have to wonder if the folks at Nike really are smarter than everyone else in the sports endorsement world. Nike has announced a partnership with the group that regulates high school sports in Texas:

As part of the agreement, Nike will provide discounted rates to the roughly 1,300 UIL-member schools. Nike also will be an official sponsor at both UIL athletic and non-athletic events

.

What does this mean on a practical level? While most high school athletes will never have the opportunity to turn professional, those who do will have already been Nike clients for many years by the time that they begin their professional careers. So who do you think they are more likely to sign with if they have been associated for Nike since their formative years? That’s right, Nike.

If a sports agent gets into trouble, rest assured that his alleged sports agent problems will follow him for the rest of his life.

For instance, consider the case of Robert Caron, an Illinois lawyer who was formerly a sports agent. Almost 15 years ago, several USC football players were suspended for taking gifts from Caron’s sports agency. Now, Caron is in legal trouble (and has terminal brain cancer), and is facing even more charges.

What this illustrates to me is that sports agents, many of whom are governed by no code of ethics or morals, can be held accountable for their actions even when said actions happened in what appears to be another era. I think this is a good thing. Without a code of conduct for sports agents, such as the Rules of Professional Responsibility, which lawyers are required to adhere to, if the Internet is the only thing that holds people accountable – when reporters drag up old ethical violations – maybe more sports agents will think twice before undertaking ethical problems.

Here is a roundup of recent developments regarding concussions in football.

First, La Salle University settled a concussion brain injury lawsuit for $7.5 million with former football player Preston Pelvretes, who was allegedly injured in a 2005 game. As usual with these types of lawsuits, the in-game concussion was apparently the second concussion that Pelvretes suffered in a month. Everyone knows that concussions have a cumulative impact on the brain, making it critical for coaches and trainers to do the right thing when the player suffers the first concussion.

Here is an excerpt from the article:

“Only in the past one to two years has there been the kind of attention placed on this matter necessary to force schools, colleges and the NFL to actually adhere to the well-promulgated and common-sense standards of the medical profession,” Shanin Specter, a lawyer for the Plevretes family, told The Associated Press.

Continue reading " Sports Law and Concussion Roundup " »

Ask yourself why a sports agent would criticize his own client in a public forum. According to the track site LetsRun, Michael Johnson is the agent for Jeremy Wariner (although the USATF web site says Deon Minor is Wariner's agent). Surely when asked whether Usain Bolt could beat his client in the 400, Johnson demurred, right? Not exactly:

Asked what the triple Olympic and World Championships gold medalist needed to do to beat the American LaShawn Merritt and Jeremy Wariner, who have dominated the event over the last five years, Johnson replied: “Well right now, not very much because they’re not running that fast. They didn’t run 43 seconds last year, so I think he (Bolt) could step on the track this year and run 43 seconds, I honestly do,” he said.

It’s always a good thing when agents are honest and do not place unrealistic burdens on the shoulders of their clients. Still, it’s rare for an agent to directly state that his client will likely lose to someone else.

If college football players are paid, as some hope will happen eventually, surely they will need sports agents, right?

This article notes that famed athlete-broker Sonny Vaccaro is traveling the nation trying to convince the future generation of American leaders that college athletes should be paid.

Unfortunately, as with most schemes dreamed up by Vaccaro, the concept may be sound in theory, but sorely lacking in details and in practicality.

Here are two of the biggest problems with the scheme. First, you would not know how to choose which players get paid and it would be impossible to create an equitable system. Second, when some players are paid, the ones who don’t get paid will inevitably fall by the wayside, leading to dramatically scaled back athletic departments and lost sports:

How do you choose how players are paid? Are they all paid the same?” McCann said. “Do you have a tiered system based sort of like a market? Then you can be creating stars who get paid a lot of money. I could see why some people find that inconsistent with college model of amateurism.

“(If revenue-producing athletes were paid) colleges would start cutting sports considerably. You would start seeing reduction in the size of athletic departments…. Particularly male team sports that are expensive and don’t generate a lot of revenue.”

The residual economy which would inevitably emerge if high schoolers could be sold to the highest bidders as free agents might sound like a good business practice for sports agents looking to expand their clientele, but in the big picture, this seems like a sure-fire disaster. Can you imagine the chaos which would emerge if high school athletes planning on attending college needed agents? The only benefit that I see is that this may force the federal government to step in and create a uniform agent registration process so that agents need not face the same process in all 50 states.

We have blogged on multiple occasions about creative methods of obtaining sports endorsements. Here is an interesting endorsement which apparently has an indirect payoff.

NBC is allowing viewers to submit a design for skier Lindsey Vonn’s helmet. The contest does not disclose a direct payoff to Vonn, but it is sure to increase her visibility. Every time she is shown on TV, the network will highlight that she has a helmet designed by a viewer, and Vonn will stand out from the pack of usually faceless Olympians who are shown on TV only once every four years.

Vonn’s agent should be commended for procuring this endorsement opportunity. It is especially praiseworthy because the agent probably drew no direct commission for brokering the deal, but he knows it will pay off in the long run.

We just wanted to pass along this brief recap of the sports law settlement reached between Marquette University Basketball Coach Buzz Williams and his former employer, the University of New Orleans.

Williams left UNO after only one season so he could become an assistant at Marquette. His lawsuit provided an extremely critical narrative of basketball conditions at UNO:

Williams said in his suit against the school that he "quickly learned that UNO was either unwilling or unable to provide even the basic necessities for a competitive men's collegiate basketball program."

The allegations included charges that players were not given meal money on a timely basis, or "there was insufficient meal money to cover the players for the entire first semester," the suit said.

Now that the lawsuit has settled, the matter is closed, and neither side will apparently divulge the terms of the deal. The unfortunate aspect of settling this case from a public policy standpoint is that we will never know whether Williams made these allegations in a self-serving effort to evade his contract or whether they are truthful.

Sports Agent Lawyer Blog was recently quoted in an article in San Diego City Beat about the energy drink sports endorsement market.

While I have no knowledge of any of the principals involved in the story or the legal proceedings, I was asked to comment by the reporter about the agent’s purported practice of taking a direct commission from the energy drink company when he linked his athletes to the company.

The article calls it a “questionable double-dipping practice.” Here is how it works: The agent has a business relationship with a sponsor. The agent also has athlete clients who need sports endorsements. Naturally, the agent links the athlete and sponsor together and everyone is happy. The questionable practice is that the agent not only takes a commission from the athlete – all marketing agents take a commission when they procure endorsements – but he is also paid by the company.

Here is my quote about the practice:

Attorney Jason Wolf, who blogs about these issues at Sportsagentlawer.com, said this double-dipping isn’t illegal.

“It’s not common, but it’s also not uncommon,” Wolf said. “It’s not unethical, but it raises some questions as to whether the agent is in it for himself or has his clients’ best interest in mind. It makes me raise maybe one eyebrow instead of two.”

The reason this raises questions is that the agent is supposed to have his client’s best interests in mind. This practice is not proof that the agent is failing to meet his fiduciary duty, but it definitely raises questions. I also suggested that perhaps one reason that the practice is not unethical is that there is no uniform code of ethics governing sports agents, and no enforcement of such regulations. Without a code of ethics, how can conduct be deemed to be in violation of the ethical regulations?

Track superstar Sanya Richards has weighed in with her take on sports agents, and she does not portray sports agents in a flattering light.

Richards notes that she is being sued by her own agent, although she provides no details on the lawsuit:

I am currently being sued by an agent, someone I once had a great deal of respect for. I speak out not just for myself but for so many athletes, in track and field, that have been in similar situations and for the athletes to come!!!

She also makes a crucial point about the USATF agent certification process, namely referring to the lack of regulation by the sport’s governing body. She apparently had a negative experience with her agent:

Now why would someone that got me a deal, that I would have gotten with or without them, believe that they should be paid beyond the time they worked for me?

It blows my mind that these kinds of people exist. People that want to watch you work as hard as you can and then take it away.

In my opinion, the USATF agent certification process leaves a lot to be desired. There is a reason that track athletes and track agents are on the verge of war with one another. The athletes come and go, but the agents are always there. As a result, they wield an extraordinary amount of power in the sports. I hope that someone such as Sanya Richards, who had the courage to put her name out there with this blog post, can start a drive to revamp the process and reform the sport.