Players Unions Need to Fix the Agent Business

In the Sports Law Blog comments this week, Anonymous mentioned the temporary restraining order that IMG received this week to prevent a former IMG employee from soliciting IMG clients to leave the agency for his newly-formed sports marketing business. Two days ago, I posted a story about the NFLPA's pursuit of agent David Dunn for violating agent regulations that involved similar behavior. Next month, I will be participating in a symposium at Willamette University College of Law with other distinguished sports law experts (including Michael McCann!). The symposium is entitled, "The Future of Sports Law," and I will be speaking about the regulation of sports agents.

In my article entitled, "Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representative of the Players," which is being published in the Willamette Law Review, I discuss how client solicitation by agents is harmful in multiple ways to the players, the teams and the leagues. I am referring to the "acceptable" solicitation in the player representation business -- commonly known as "recruiting". The player-agent relationship is a fiduciary relationship, and in such a relationship (i.e. lawyer-client relationship) solicitation is considered unethical and unlawful because of the potential for undue influence, intimidation and overreaching. So why is client solicitation acceptable? I also discuss how the "babysitting" role that agents play is harmful to players because it fosters dependency and irresponsibility.

As players' salaries keep increasing, so do the agents' fees because they are paid on a commission basis. Simply, the agent's fee far exceeds the legitimate legal work and negotiation involved with a player contract, and the players are essentially funding the solicitation expenses incurred by agents. With such a huge commission at stake, agents have an incentive to invest an incredible amount of time and resources in client solicitation. And many of the reasons or justifications typically cited for paying a fee on a commission basis in other industries are not applicable to the player-agent relationship.

In my article, I advocate that the players associations should consider hiring agents as full-time salaried employees and give each player the option to retain a union agent as his representative in club negotiations. This could alleviate many of the current problems associated with the agent business, including solicitation, agent incompetence and conflicts of interest. The union agents would only represent the players in their individual negotiations with the clubs, and would not work on behalf of the union in collective bargaining negotiations. In my opinion, there are many players that would take advantage of this option if it were available. Oh, and if the unions needs a model for it, they can look at the the union for British soccer players, the English Professional Footballers Association.

I welcome your comments.

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