The following article is a guest contribution from Evan Brennan. Mr. Brennan is an NFLPA Certified Contract Advisor and a current student at Chapman Law School. He holds a Master’s degree in Sports Management from California State University at Long Beach, and a Bachelor’s degree from Brigham Young University. He has worked in athlete public relations, marketing, and other areas for various sports professionals and companies for years. Follow him at @brennansports on Twitter.
The Football Educator
Legal Issues Facing NFL Agents
By Evan Brennan
A majority of NFLPA Certified Contract Advisors are attorneys and/or possess a Juris Doctor degree. Some are active in their profession and concurrently practice law, while others are not, and merely focus on athlete representation exclusively.
When acting as an agent, numerous legal issues come up in the representation of a player, with some being more obvious than others. These services are to be considered beforehand to the prospective player and prospective agent going into such a fiduciary and dependent relationship, as issues can arise if there is not a firm understanding as to where the parties stand in regards to them. Most agents are very upfront in the services that they offer to a player: marketing and endorsements, contract negotiations, financial planning, etc. But some agencies offer “legal services” which is in and of itself, a broad term that needs to be better fleshed out.
Generally speaking, legal issues that NFL agents encounter for themselves and their clients are as follows: criminal matters, state law governing regulations, grievances with suspensions and NFL policies, contract negotiations, and business/property transactions of their clients.
The amount of legal involvement that an agent will have in a client’s life is a strategic one. On one hand it does show a huge deal of dedication and loyalty to a client to represent him on the house or a greatly reduced rate for many legally based endeavors. However, the agent may run into some conflicts in being overly involved in a client’s life and will be missing out on significant amounts of time and potential earnings by not taking a strong, or even customary fee for doing so. This also does not take into consideration the strain and distraction such work takes on the rest of an agent’s practice, legal or with athletes.
Some of the larger and mid-sized agencies will have a general counsel on staff that handles these matters, and are particularly useful for those agencies where the agent is not an attorney or practicing one. Some, even with attorneys on staff, will limit their legal involvement with a player for a multiplicity of reasons: lack of expertise, conflicts of interest, or concerns over malpractice liability. Others may be weary of how to properly bill for such services, if at all. When registering for a state and school, many forms will ask if there are particular services that are offered, one of which being “legal services.” It is then that an agent can designate himself as one who provides them and at what cost to the client. The representation agreement between players and agents should also spell out what an agent will do for a client, including legal services.
Most agents, if they do not wish to provide the representation themselves, have attorneys that they trust and can recommend to players for any work that they do not do themselves. The NFLPA can also be a resource here as well. The NFLPA has a NFLPA Worker’s Compensation Panel of attorneys that are to be used city to city for those related issues.
State Law Issues
Agents are required by nearly every state to register with them if they plan on recruiting a player that attends a school in that state. The cost can range from nothing to several hundred dollars per year. There are detailed state statutes that govern the players’ and school’s rights in the recruitment and signing of a player against the agent. Other items, such as notice of signing, structure of the representation agreement, contact, and other legal nuances are also laid out therein. In the event of an infraction of these issues, a legal issue could arise regardless of where the agent himself is located. Having legal counsel for the agent, or the agent himself being adept in this is key in avoiding or mitigating potential action by a state or other legal culpability. The states of Texas, North Carolina, Alabama, Florida, and Mississippi have proven to be particularly active in the legal enforcement of agent statutes for infractions.
The Commissioner’s Office can levy numerous suspensions and fine under the CBA for a variety of issues to players that could include missed games, missed pay, and significant fines. The recent Terrelle Pryor case is illustrative of this. Having experience in this, and in arbitration in general is something for an athlete to consider. For the agent, he may want to consider enveloping it as something he does in house, given the wide PR opportunities and loyalty that it shows to a client, as well as professionalism and sophistication.
Criminal Law Matters
Agents that are attorneys can offer to be of assistance with any criminal matters of their clients. However, this is very rare due to the time commitment, the lack of expertise, and the financial disincentive to do so. Again, there could potentially be some conflicts of interest as well in some cases for the attorney. The more serious the criminal charge, the less of a chance an agent is to be intimately involved with the legal representation of the client. Nonetheless agents are involved in helping their clients find proper counsel for criminal matters. Knowledge of the criminal law process can be particular useful in damage control from a PR perspective for an agent and vicariously, his client. Therefore any strong legal knowledge about the criminal law system does serve some benefit for both the client and the agent.
This is the chief responsibility of an agent and does not require a legal background to do so effectively. However, many firms will have its attorneys involved in the review of the contracts, as well as involved in the formation of many of the terms
and strategies to be used to secure the best deal for the clients. Several non-attorneys have proven to be wildly successful in athlete representation such as Todd France, Joe Linta, and Blake Baratz. There can be no doubt however, that someone that has had significant course work and exposure to contracts, which a Juris Doctor degree provides does have an advantage against many others.
Many NFL clients will want their agents to be involved with their foundations, their business endeavors and large purchases such as homes and cars. Many agents will be called upon to informally or formally use their legal minds to aid players in these endeavors. Having such a legal foundation and knowledge again provides clients with additional versatility and sophistication. Again, such services can be done on the house for a client, but it is a balance for agents in maintaining the client, and having it not dominate their practices to their detriment.
Overall, having an agent as attorney is very helpful, but not essential to a client, as many have strong access to attorneys should the need arise. Potential NFL players would be wise to make a list of what they are expecting their representation to do, at what cost, and compare them against whom they are considering as an agent. Legal prowess and capabilities to some extent should not be easily diminished in such a personal inquisition.