Courts Continue to Reject Agents Suing Other Agents
On October 6, 2021, Judge Rakoff of the Southern District of New York, dismissed a lawsuit brought by one basketball agent, David Lee, against another, Raymond Brothers, for allegedly stealing Lee’s client. Lee v. Raymond Brothers, 21-cv-4213, 2021 WL 4652336 (S.D.N.Y. Oct. 6, 2021). In so doing, the court added to a body of case law that is unsympathetic to agents’ complaints that another agent stole a client.
Some cases have failed where courts found the plaintiff agents’ stories unpersuasive. In Bauer v. Interpublic Group of Companies, Inc., 255 F. Supp. 2d 1086 (N.D. Cal. 2003) and Champion Pro Consulting Group, LLC v. Impact Sports Football, LLC, 116 F. Supp. 3d 644 (M.D.N.C. 2015) (disclosure: I was part of the team that represented Impact Sports in this case), the courts granted summary judgment because the courts found that there was insufficient evidence that the defendant agents had induced the players involved to terminate their prior agents.
Yet perhaps the most telling description of courts’ skepticism toward agent complaints comes from Judge Richard Posner of the Seventh Circuit (famous for his market-oriented approach to law):
There is in general nothing wrong with one sports agent trying to take a client from another if this can be done without precipitating a breach of contract. That is the process known as competition, which though painful, fierce, frequently ruthless, sometimes Darwinian in its pitilessness, is the cornerstone of our highly successful economic system. Competition is not a tort, but on the contrary provides a defense (the “competitor’s privilege”) to the tort of improper interference. It does not privilege inducing a breach of contract — conduct usefully regarded as a separate tort from interfering with a business relationship without precipitating an actual breach of contract–but it does privilege inducing the lawful termination of a contract that is terminable at will. Sellers (including agents, who are sellers of services) do not “own” their customers, at least not without a contract with them that is not terminable at will.
Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 865 (7th Cir. 1999).
Judge Rakoff echoed these sentiments in the Lee case:
Being a professional basketball player’s agent may itself be something of a tough competitive sport. While it is perfectly proper for a player to “steal” a ball on-court, an agent’s stealing another agent’s client by offering the player added financial inducement (in this case, any young man’s dream — a new pickup truck) may arguably violate the players’ union rules. But such a “foul” does not give rise to a legal claim, at least not in the circumstances of this case.
Lee, 2021 WL 4652336, at *1.
The courts’ determinations are in line with those of the NFLPA arbitration system, which generally handles agent versus agent disputes (the NBPA regulations do not). As I explained in a prior article, there has never been an arbitration decision in which an NFL player agent was found to have tortiously interfered with another agent’s relationship with a player.
As I’ve also written at other times, the agent industry can be brutal. The reluctance of courts or arbitrators to intervene only adds to the challenges.
 The Bauer case was brought before the NFLPA regulated agent versus agent disputes; and the Champion Pro Consulting Group, LLC case relied on facts during the spring of 2011, when the NFLPA had decertified itself as a players’ union and thus temporarily did not have the authority to regulate agents. The NBPA arbitration system does not govern agent versus agent disputes.