Group Created with Sketch.
Volume 21 No. 1

Labor and Agents

Liz Mullen
National Basketball Players Association President Derek Fisher, New Orleans guard Chris Paul and 11 other NBA players have signed sworn declarations that they have not threatened a disclaimer of interest of the union’s status. The declarations were made as part of the NBA’s ongoing lawsuit against the players.

The union has asked a U.S. District Court judge in New York to dismiss the lawsuit, which the league first brought against the players in August seeking a declaratory judgment that the ongoing lockout is legal. Judge Paul Gardephe is scheduled to hear oral arguments in the case on Tuesday.

The NBA filed the lawsuit — as well as, on the same day, an unfair labor practices charge against the NBPA — alleging that the NBPA has used the threat of decertifiying the union by disclaiming interest as an impermissible pressure tactic to avoid negotiating a collective-bargaining agreement in good faith.

The league sued Fisher, Paul and 11 other players but seeks to have those players represent all NBA players as a class. The other

Chris Paul (top left), union President Derek Fisher and Jimmer Fredette were among those signing.
players are Theo Ratliff, Mike Dunleavy, Roger Mason Jr., Maurice Evans, Matt Bonner, Keyon Dooling, James Jones, Etan Thomas, Amar’e Stoudemire, and incoming rookies Jimmer Fredette and Charles Jenkins.

In their declarations, the players stated: “In the weeks and months leading up to the expiration of the Collective Bargaining Agreement between the NBA and the NBPA, and since that time, I have not made, nor have I ever heard of being made, any threats against the NBA or its teams that the NBPA will disclaim its union status or that I or any other player will file an antitrust suit, nor has there been any decision to take such action.”

WINTER TAKING LESSER ROLE WITH AGENCY: Veteran NHL player agent Ritch Winter founded his company, The Sports Corporation, in 1985 by himself, but he is no longer running it and does not have a major stake in the firm.

“I sold a large portion of my shares,” Winter said in a recent phone interview, adding that he sold them to his partners Gerry Johannson and Steve Kotlowitz. “Gerry is now the majority shareholder, and I continue to be a shareholder,” he added.

Winter said he is now working as a consultant for Switzerland-based 4sports & Entertainment and will help that company increase its presence in North America, but he added that he also will still represent some of his existing clients, including Marian Hossa, Ilya Bryzgalov and Cody Hodgson.

Johannson said Winter remains a consultant to The Sports Corporation. Asked if Winter still has an equity stake in the company, Johannson said, “I wouldn’t define it as an equity stake. I would say he retains an interest.” The Sports Corporation represents about 35 NHL players, including Ryan Getzlaf, Milan Lucic, Carey Price and Dustin Penner.

Winter and Johannson said the change occurred about six months ago, but it only became public last week, after TSN reported it.
EXCEL SIGNS KUCHAR: Excel Sports Management, which launched a golf division earlier this year when Tiger Woods’ agent, Mark Steinberg, joined as a partner, has signed Matt Kuchar, the No. 9 ranked golfer in the world and No. 3 ranked U.S. player.

“[Kuchar] has established himself as a dominant force, and we look forward to helping elevate his profile around the world,” Steinberg said.

Kuchar plays Bridgestone equipment and wears Bridgestone on his headwear in a deal that has a few years to go. He was last represented by Peter Jacobsen but has had several agents in his career, including CSE and Wilhelmina.
LEGACY SIGNS HILL: Legacy Sports Group has signed Arizona Diamondbacks second baseman Aaron Hill for representation. Agents Greg Genske and Brian Peters will represent him. He was formerly represented by Beverly Hills Sports Council.

Liz Mullen can be reached at Follow her on Twitter @SBJLizMullen.

As the National Basketball Players Association looks for a decision from the National Labor Relations Board on the union’s charge that NBA owners have not negotiated fairly, NFL owners may have some words of caution: Be prepared to wait.

The NBA players filed their case in May. They ultimately are seeking to receive an injunction in federal court to end the now four-month-long lockout.

The NFL, however, practically begged the NLRB not only to make a quick decision on a charge it filed early this year that the NFL Players Association had not been negotiating fairly in their labor talks, but also to intervene in the court case filed by players against the league, according to letters sent by league outside counsel to the NLRB and obtained by SportsBusiness Journal under a Freedom of Information Act request.

And it wasn’t just the NFL asking for a speedy resolution. The NFLPA, in a position paper sent to the NLRB — also obtained under a FOIA request — also asked the federal agency to make a quick decision. The NLRB regional office initially overseeing the NFL’s charge did, in May, make a recommendation to the agency’s advice bureau, according to the documents, but no further move was made, and the players and league settled in early August without the NLRB having issued a final ruling.

The NLRB declined to publicize the recommendation or comment further, contending that the recommendation constitutes internal deliberations that are exempt from FOIA guidelines.

“The NFL respectfully urges the General Counsel to assert the Board’s primary jurisdiction and to seek a stay of the recently filed Brady v NFL antitrust case,” NFL outside counsel Bob Batterman wrote on March 17 to NLRB acting general counsel Lafe Solomon. “We are hopeful that a complaint will issue in advance of the April 6 preliminary injunction hearing.”

The NLRB took no such action.

Batterman wrote to Solomon again on April 27, asking the NLRB to intervene in the NFL’s appeal of a U.S. District Court ruling against the league two days earlier and to issue a complaint against the NFLPA as soon as possible.

“The NFL respectfully submits that it is now urgent that a complaint issue,” Batterman wrote.

Later, in a May 20 letter to the associate general counsel of the NLRB division of advice, Barry Kearney, Batterman again asked for the NLRB to act — which it did not.

That letter is apparently the last correspondence the NFL sent to the NLRB seeking quick movement on its charge, which was originally filed Feb. 14. Several days after that May 20 letter was sent, the first of a series of “secret” talks between players and owners began — talks that ultimately resolved the labor dispute.

There are significant differences between the NFL’s charge and the NBPA’s charge. The NFL’s core contention was that the NFLPA had not been engaged in good-faith negotiations and that it, instead, had designs on decertification and filing an antitrust lawsuit against the league. In the case of the NBPA, the union’s charge contends that the NBA has dealt directly with players and has bypassed the union, and that it has refused to provide financial information requested by the union to understand its financial demands.

Bill Gould, former chairman of the NLRB and now a Stanford Law School professor, said there are several reasons why Solomon may have held off in the NFL dispute.

“The general counsel is careful, and the board would do the same, about moving ahead if they thought their action would somehow disrupt bargaining that otherwise might be successful,” Gould said. “If he was inclined to issue a complaint, he may have felt he would have muddied the waters, or it may be he just wasn’t inclined.”

In the NBA situation, Gould said, “If the general counsel really believes they are deadlocked and it is unlikely that is going to be altered in the forseeable future, he could intervene.”

The NFL and the players union’s battle over workers’ compensation, one of the last unresolved issues from the spring and summer of labor discontent, spilled into a Louisiana court last week, with the NFLPA contending that the league has no say in where players can file such claims, even if their contracts stipulate otherwise.

The move coincided with increased public pressure on the NFLPA from Congress to agree to HGH testing, an issue the league had thought was settled with the Aug. 4 ratification of the new 10-year collective-bargaining agreement.

The one issue the league knew was unresolved on that day was the increasingly contentious question of where players can file workers’ compensation claims. Most wish to file in generous California, while teams want them to file in their team’s home state.

The NFL is suing the NFLPA and eight former Saints players to enforce an Aug. 23 arbitrator’s decision that the players must revoke their claims in California and refile in Louisiana because their contracts specifically called on them to file in the Southern state.

But the NFLPA contends that even if their contracts called for them to file in the Saints’ home state, and even if the CBA in effect at the time allowed for this, it is irrelevant.

“The California Workers’ Compensation Appeals Board has ruled that any provision of an employment agreement between an NFL Player and Club that purports to limit the NFL Player’s ability to pursue workers’ compensation benefits in California is void and unenforceable,” the NFLPA said in a court brief last week.

California has one of the country’s most generous systems, allowing anyone who has physically done business in the state to file a claim for injury, and with no sunset provision. The Workers’ Compensation Appeals Board has ruled that NFL players who have competed in a game in the state, even if they were not directly injured in that contest, can file a claim.

It is one reason the reconstituted Arena Football League chose not to put a team in California. Several teams, including the Washington Redskins and New York Jets, have recently fought efforts by players to file in California, according to the NFLPA brief.

The Saints players all had clauses in their contracts stating if they were to file for workers’ compensation, it had to be in Louisiana. Nevertheless, they filed in California, and the NFL took the case to an arbitrator.

Irwin Kishner, a lawyer with Herrick Feinstein who wrote a legal article in 2010 on why California’s workers’ compensation system is a problem for sports leagues, said he sides with the NFL in this case.

“There were two well-represented parties that freely executed a contract,” he said. “It is not saying you can’t avail yourself of California, the contract just says you [choose to] avail yourself of Louisiana.”

Kishner still expects the case to go far, perhaps even to the Supreme Court to decide on the constitutional merits of how California’s workers’ compensation system purports to have a say over contracts in other states.

The NFLPA in its brief argued that the Supreme Court has ruled that an employee cannot negotiate down their rights in a contract, and so the provisions are unenforceable.

As a subtext to the case, it is the first legal battle between the NFL and NFLPA since the new CBA, and thus is out of Judge David Doty’s court in Minnesota.

Doty, as part of the 1993 antitrust settlement that resulted in the CBA that ran through March 2011, oversaw labor relations between the two sides. Any dispute went to a special master, and then on appeal to Doty, whom the league viewed as being overly player friendly.

The new CBA, signed on Aug. 4, eliminated Doty’s role. Twenty days later the NFL filed the lawsuit against the players and NFLPA in the Louisiana court.

The NFLPA is represented by Dewey & LeBoeuf. Adams and Reese, a local New Orleans firm, submitted the NFL complaint.

The case is named New Orleans Saints, L.L.C. et al v. Cleeland. Cam Cleeland is one of the eight former players.