I want to thank Mike and Greg for the invitation to be a regular contributor on the blog, and I am looking forward to working as a team with both of them and Geoff.
One of my favorite sports law topics is misconduct involving sports agents. Jerry Crasnick reported Sunday on ESPN.com that Jim Munsey, the agent for Atlanta Braves catching prospect Jarrod Saltalamacchia ("Salty"), has filed a complaint with the union against Scott Boras for soliciting his client ("Agent says Boras' group 'stalking' his client"). Crasnick is also the author of an excellent book about the agent business in baseball entitled, License to Deal, which is a must read for anyone interested in becoming a sports agent representing baseball players.
According to the ESPN.com article, Munsey feels that Boras has violated MLBPA agent regulations and Munsey has even hinted that Boras is intentionally interfering with the representation agreement that Munsey has with Salty. But the reality is that solicitation of players -- those already represented by an agent and those who are not -- is commonplace in the industry. In fact, contrary to Munsey's assertions, the union's agent regulations permit agents to solicit represented and unrepresented players as long as the player is not provided "materially false or misleading information," nor provided "money or any other thing of value" as an inducement to gain the player's representation. (emphasis added) [Note that apparently the union feels that it's o.k. for agents to lie to prospective clients as long as it's not a "material" lie.] In addition, any claim for interference with contractual relations fails under the test laid out in Speakers of Sport v. ProServ (7th Cir. 1999), which requires that the soliciting agent actually engage in a "scheme to defraud" the prospective client.
What's interesting to me about the holding of the ProServ case is that the agent-player relationship has been recognized as a fiduciary relationship by law. Indeed, even the union agent regulations expressly state it as such. Typically, the agent in such a fiduciary relationship is held to a higher standard of care, and client solicitation by the fiduciary is considered unethical (e.g. the attorney-client relationship). The very nature of a fiduciary relationship involves the principal (the player) entrusting his fortune, reputation, and legal rights and responsibilities to his agent whose actions, for better or worse, vitally affect the economic well-being and reputation of the principal. The rationale for prohibiting client solicitation by individuals acting in a fiduciary capacity is quite simple: There is a potential for abuse -- i.e. undue influence, overreaching and intimidation -- inherent in direct in-person or telephone contact by such individual with a prospective client known to need services. But for some reason it's allowed by sports agents.
I discuss this issue at length in my recent law review article on agent misconduct, but there is no question that solicitation is extremely burdensome on players. Crasnick even spoke to Salty about it:
Saltalamacchia, reached by phone, said that a Boras representative named Terrence Smalls contacted him "close to 10 times" last year between Myrtle Beach and a subsequent stint in the Arizona Fall League. He said a second Boras employee -- who he could not identify by name -- recently approached him with an invitation to go to dinner. "I'm happy with the agent I have," Saltalamacchia said. "I love Jim to death. I tell these guys, 'If there comes a time when I'm not happy, I'll contact you and we'll go from there.' But it's one of those things where every day you go to the ballpark and a different guy wants to meet you and talk to you and sit down and have lunch. You're there just to play ball."
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