AGENTS

Issues Discussed

• Conflicts with Players– Illegal acts during representation– Negligent representation– Breach of fiduciary duty– Conflicts of Interest

• Recruiting of college players– Enforceability of fraudulently back-dated contracts– Criminal penalties– Tort remedies

• Regulation of Agents

Dissatisfied Players’ Claims Against Ex-Agents

• Seek to avoid hefty commissions• Zinn: standard is reasonable care, not desired result

– Key: commission claim is voidable by the player if the agent has acted illegally in terms of non-compliance with regulatory schemes

• Note “legal malpractice” claims rare– Why are there so few negligent representation

claims?– Should the law make this an easier claim to make?– Should the Players’ Associations do more to police

incompetent representation?

Handling the Client

• Steve Bartkowski selected in '74 as the #1 pick of the NFL draft by the god-awful Falcons; on draft day, Bart announces that this is a dream come true... he would play for free in the NFL ... he wouldn't think about the WFL; agent fails to pursue WFL offers and can't get close to decent offer from Falcons

• What should the agent do?

2/ Negligent Representation• Why was Bob Woolf potentially liable for

advising client to sign with rival league, while Howard Zinn was not liable for advising client NOT to?

• What result today if an NFL agent acted as Woolf did?– Are the PA regs sensible?– Why should agents get fees for contracts

at union scale? Should some players hire contract lawyers at hourly rate instead of agents? Who?

– Is there a fairer way to compensate agents for prepping rookies?

Lions v Argovitz

• Would contract be enforceable if Argovitz had fully explained conflict to Sims?

• Agree with the court that the key breach of duty was failing to seek a final offer from the Lions?

Modern Conflicts

• Closer, and more realistic issue, is conflict in representing multiple athletes, especially in sports with salary caps– Is abuse of this situation a

serious problem?– How do ethical agents handle

these conflicts?

Recruiting

• Contrast baseball with basketball/ football

• Do football/basketball players have too little time to make informed judgments? What could be done to improve agent-selection decision-making?

Walters v Fulwood

• How are disputes arising under NFL agent-player contracts supposed to be resolved?

• Why did the judge not follow the contract’s dispute resolution terms?

• What is the basis for concluding that the entire transaction was an “illegal contract”?

• What is the basis for holding that violating NCAA rules is contrary to the public policy of the State of New York?

• What is the pre-existing contract that the judge finds was breached by Fullwood’s agreement with Walters?

• Do you agree that this behavior offends your own sense of public policy? Other than causing NCAA problems for schools, what is wrong with cash inducements?

Cash Inducements

• Other than causing NCAA problems for schools, what is wrong with agents providing cash inducements to players?

Sleazy Agents and Mail Fraud

• Under government’s theory, who was victimized?

• Who was the principal defrauded, and who was the co-conspirator?

Agent Regulation

• Who are the victims of agent misconduct?

• What is the social problem that the Uniform Act and SPARTA are trying to solve?

If time permits …

• Continue discussion of college player uniionization