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Sunday, January 31, 2010

Sample Poor Contract Language

In class we will break off into 10 groups (approximately 7 students per group) and discuss the interpretation of the following clauses that I have seen in various contracts (each group will be given a clause to interpret and present to the class). Analyze each provision to see if it is definitive. Can it be made clearer?

1. Player will receive a bonus of $50,000 if he is selected to the Pro Bowl.

2. For any Canadian Football League post-season honor received by player, he will be paid a bonus of $75,000.

3. If player plays in 50% or more plays in the NFL season, he will be paid $100,000.

4. In exchange for receiving a fee of $250,000 in 2010, Player is to provide 5 promotional appearances.

5. If player scores 25 points during the NHL season, he will receive $50,000; if he scores 50 points during the NHL season, he will receive $75,000; if player scores 100 points during the NHL season, he will receive $100,000.

6. If driver fails to complete 50 laps in a NASCAR race, he will forfeit a pro-rata portion of his salary for the race.

7. If player in ranked in the top 5 in shooting percentage in the NBA, he shall receive $100,000.

8. If the WTA Essen event is cancelled, the venue rental fee of 1 million shall be returned to the Event promoter.

9. If Player leads the team in yards, he will receive $50,000 and his base salary will increase by $50,000.

10. If it is determined that player has suffered an injury to his shoulder, he will not be paid and will be obligated to return all monies back.

Prohibited Activities - NBA Player Contract

The entire sample NBA player performance contract can be found here. Here's the part that we will discuss in class:


The Player and the Team acknowledge and agree that the Player's participation in certain other activities may impair or destroy his ability and skill as a basketball player, and the Player's participation in any game or exhibition of basketball other than at the request of the Team may result in injury to him. Accordingly, the Player agrees that he will not, without the written consent of the Team, engage in any activity that a reasonable person would recognize as involving or exposing the participant to a substantial risk of bodily injury including, but not limited to: (i) sky-diving, hang gliding, snow skiing, rock or mountain climbing (as distinguished from hiking), rappelling, and bungee jumping; (ii) any fighting, boxing, or wrestling; (iii) driving or riding on a motorcycle or moped; (iv) riding in or on any motorized vehicle in any kind of race or racing contest; (v) operating an aircraft of any kind; (vi) engaging in any other activity excluded or prohibited by or under any insurance policy which the Team procures against the injury, illness or disability to or of the Player, or death of the Player, for which the Player has received written notice from the Team prior to the execution of this Contract; or (vii) participating in any game or exhibition of basketball, football, baseball, hockey, lacrosse, or other team sport or competition. If the Player violates this Paragraph 12, he shall be subject to discipline imposed by the Team and/or the Commissioner of the NBA. Nothing contained herein shall be intended to require the Player to obtain the written consent of the Team in order to enable the Player to participate in, as an amateur, the sports of golf, tennis, handball, swimming, hiking, softball, volleyball, and other similar sports that a reasonable person would not recognize as involving or exposing the participant to a substantial risk of bodily injury.

Agent Talk - Your Professor goes retro

Check out this article on Del Duca Sports Blog.

Class of 2/1/10

We will discuss basic of elements of a contract (Text, pgs 111-149) as it relates to sports contracts.
Also...check out the link to the coaching contract of Alabama football coach Nick Saban. We will be looking at this contract, more specifically sections 4, 5 and 8. READ THE CONTRACT BEFORE YOU COME TO CLASS.

For more NCAA coaching contracts, see USA Today at this link and also here.

We will also review sample provisions of player contracts and endorsement agreements. Some information for those issues will be posted in a separate blog post later today.

Sunday, January 24, 2010

Standard Representation Agreement for the NFL

The Standard Representation Agreement ("SRA") between a player and an agent ("Contract Advisor") is filed with the NFL Players Association. A sample SRA can be found here (see Appendix D on page 37 of the document). More FAQs about being an NFL agent can be found on the NFL website.

Here's some "words of wisdom" from Auburn University to its athletes about the "Big Bad Agent Man (or Woman)."

The Contract with the Agent
The NFLPA Standard Representation Agreement is standard form contract players' sign with agents. It is a bare bones agreement that authorizes the agent to “represent, advise, counsel, and assist the player in negotiation, execution and enforcement of his playing contract(s) . . .”

What else does it do?
It should specify the services provided by the agent beyond contract negotiation. Agents may ask you to enter into agreements for other types of services: make sure those agreements are rolled into this agreement. Some services you may want handled by someone other than your agent (financial planning and accounting, and estate planning). Other services might be also handled by this agent (endorsements, career and post career counseling, marketing and insurance). It sets the term limit of the agreement: when the agent starts working for you, when he stops. It sets the amount the player compensates the agent (3% of player’s compensations for each season he plays—but you can negotiate a lesser amount). It sets how the player compensates the agent.

􀂃 Fee types:
􀂃 Contingent (percentage)
􀂃 Time
􀂃 Flat
􀂃 Combination

If you settle on the contingent method, do not allow the agent to take the full percentage up front. Fees should be paid on an annual percentage of the player’s earning—and only after he has actually earned the money. It sets the kinds and amounts of expenses for which the player will reimburse the agent (generally “reasonable and necessary” communication and travel expenses incurred “in connection with the negotiation” of the players contract. This is paragraph 6 on the agreement. You should ask your agent to remove this. It should also specify the expenses the agent is willing to pay: Preparation for combine and interviews, for example is something you should ask him to pay for. If on the other hand he promises to arrange combine/interview prepration, make sure you contract is clear on who pays. It may contain an exclusivity clause. This gives the agent the right to a percentage of all the player’s playing contracts and endorsements—even if he’s fired and another agent negotiates the contracts.

As you can see, schools are telling their players to let the rich-guy agent pay for everything -- this is one of the reasons that players who have as much chance as playing in the NFL as Pee-Wee Herman are asking for handouts from agents.

Friday, January 22, 2010

Get Ready for the Pittsburgh Pirates of the NFL ...

In his recent post at the National Football Post, fellow agent Jack Bechta reconfirmed what I have been saying for months now regarding NFL team salaries in the uncapped (2010) year: with no minimum team salary, some clubs are going to use the Pittsburgh Pirate/Florida Marlins model and flood the team roster with first, second and third year players (low base salaries) in exchange for releasing (or to a lesser degree trading) veteran players who are making higher amounts in the terms of base salaries, bonuses and incentives.

Per Bechta: "... some small-market teams will take their player payrolls to as low as $50-$60 million in 2010 from the current minimum floor of $109 million per team."

Remember the minimum salaries for players will still be in effect for the uncapped year. First year players in 2010 will generally make $320,000 and 2nd year players $395,000 -- while the four-to-six year vets will be owed minimum base pay of $630,000 and seven-to-nine year vets $755,000. But like the baseball model, teams in 2010 will not be required to spend a minimum overall team salary. So if I'm an owner in Jacksonville or Tampa or St. Louis -- and my team is going to stink and/or no draw well anyway -- and I have no idea what the new CBA will eventually be like economically -- do I really have much to lose if I cut marginal vets (higher coin to pay) for a bunch of younger guys?

Another way to look at this is that the possibility of teams curtailing their overall payroll with the release of veteran players -- coupled with a lockout year -- could be a boon for a new football league (can you say "UFL?").

Sunday, January 17, 2010

Sample NFL Player Performance Contract

THIS CONTRACT is between ________________,hereinafter “Player,” and ____________,a __________corporation (limited partnership) (partnership), hereinafter “Club,” operating under the name of the _____________ as a member of the National Football League, hereinafter “League.” In consideration of the promises made by each to the other, Player and Club agree as follows:

1. TERM. This contract covers __________ football season(s), and will begin on the date of execution or March 1, __________, whichever is later, and end on February 28 or 29, __________, unless extended, terminated, or renewed as specified elsewhere in this contract.

2. EMPLOYMENT AND SERVICES. Club employs Player as a skilled football player. Player accepts such employment. He agrees to give his best efforts and loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game. Player will report promptly for and participate fully in Club’s official mandatory minicamp(s), official preseason training camp, all Club meetings and practice sessions, and all preseason, regular season and postseason football games scheduled for or by Club. If invited, Player will practice for and play in any all-star football game sponsored by the League. Player will not participate in any football game not sponsored by the League unless the game is first approved by the League.

3. OTHER ACTIVITIES. Without prior written consent of the Club, Player will not play football or engage in activities related to football otherwise than for Club or engage in any activity other than football which may involve a significant risk of personal injury. Player represents that he has special, exceptional and unique knowledge, skill, ability, and experience as a football player, the loss of which cannot be estimated with any certainty and cannot be fairly or adequately compensated by damages. Player therefore agrees that Club will have the right, in addition to any other right which Club may possess, to enjoin Player by appropriate proceedings from playing football or engaging in football-related activities other than for Club or from engaging in any activity other than football which may involve a significant risk of personal injury.


(a) Player grants to Club and the League, separately and together, the authority to use his name and picture for publicity and the promotion of NFL Football, the League or any of its member clubs in newspapers, magazines, motion pictures, game programs and roster manuals, broadcasts and telecasts, and all other publicity and advertising media, provided such publicity and promotion does not constitute an endorsement by Player of a commercial product. Player will cooperate with the news media, and will participate upon request in reasonable activities to promote the Club and the League. Player and National Football League Players Association, hereinafter “NFLPA,” will not contest the rights of the League and its member clubs to telecast, broadcast, or otherwise transmit NFL Football or the right of NFL Films to produce, sell, market, or distribute football game film footage, except insofar as such broadcast, telecast, or transmission of footage is used in any commercially marketable game or interactive use. The League and its member clubs, and Player and the NFLPA, reserve their respective rights as to the use of such broadcasts, telecasts or transmissions of footage in such games or interactive uses, which shall be unaffected by this subparagraph.

(b) Player hereby assigns to the NFLPA and its licensing affiliates,

if any, the exclusive right to use and to grant to persons, firms, or corporations (collectively “licensees”) the right to use his name, signature facsimile, voice, picture, photograph, likeness, and/or biographical information (collectively “image”) in group licensing programs. Group licensing programs are defined as those licensing programs in which a licensee utilizes a total of six (6) or more NFL player images on or in conjunction with products (including, but not limited to, trading cards, clothing, videogames, computer games, collectibles, internet sites, fantasy games, etc.) that are sold at retail or used as promotional or premium items. Player retains the right to grant permission to a licensee to utilize his image if that licensee is not concurrently utilizing the images of five (5) or more other NFL players on products that are sold at retail or are used as promotional or premium items. If Player’s inclusion in a particular NFLPA program is precluded by an individual exclusive endorsement agreement, and Player provides the NFLPA with timely written notice of that preclusion, the NFLPA will exclude Player from that particular program. In consideration for this assignment of rights, the NFLPA will use the revenues it receives from group licensing programs to support the objectives as set forth in the Bylaws of the NFLPA. The NFLPA will use its best efforts to promote the use of NFL player images in group licensing programs, to provide group licensing opportunities to all NFL players, and to ensure that no entity utilizes the group licensing rights granted to the NFLPA without first obtaining a license from the NFLPA. This paragraph shall be construed under New York law without reference to conflicts of law principles. The assignment in this paragraph shall expire on December 31 of the later of (a) the third year following the execution of this contract, or (b) the year in which this contract expires. Neither Club nor the League is a party to the terms of this paragraph, which is included herein solely for the administrative convenience and benefit of Player and the NFLPA. The terms of this subparagraph apply unless, at the time of execution of this contract, Player indicates by striking out this subparagraph (b) and marking his initials adjacent to the stricken language his intention to not participate in the NFLPA Group Licensing Program. Nothing in this subparagraph shall be construed to supersede or any way broaden, expand, detract from, or otherwise alter in any way whatsoever, the rights of NFL Properties, Inc. as permitted under Article V (Union Security), Section 4 of the 1993 Collective Bargaining Agreement (“CBA”).

5. COMPENSATION. For performance of Player’s services and all other promises of Player, Club will pay Player a yearly salary as follows:

$__________________________for the 20_____season;

$__________________________for the 20_____season;

$__________________________for the 20_____season;

$__________________________for the 20_____season;

$__________________________for the 20_____season.

In addition, Club will pay Player such earned performance bonuses as may be called for in this contract; Player’s necessary traveling expenses from his residence to training camp; Player’s reasonable board and lodging expenses during preseason training and in connection with playing preseason, regular season, and postseason football games outside Club’s home city; Player’s necessary traveling expenses to and from preseason, regular season, and postseason football games outside Club’s home city; Player’s necessary traveling expenses to his residence if this contract is terminated by Club; and such additional compensation, benefits and reimbursement of expenses as may be called for in any collective bargaining agreement in existence during the term of this contract. (For purposes of this contract, a collective bargaining agreement will be deemed to be “in existence” during its stated term or during any period for which the parties to that agreement agree to extend it.)

6. PAYMENT. Unless this contract or any collective bargaining agreement in existence during the term of this contract specifically provides otherwise, Player will be paid 100% of his yearly salary under this contract in equal weekly or biweekly installments over the course of the applicable regular season period, commencing with the first regular season game played by Club in each season. Unless this contract specifically provides otherwise, if this contract is executed or Player is activated after the beginning of the regular season, the yearly salary payable to Player will be reduced proportionately and Player will be paid the weekly or biweekly portions of his yearly salary becoming due and payable after he is activated. Unless this contract specifically provides otherwise, if this contract is terminated after the beginning of the regular season, the yearly salary payable to Player will be reduced proportionately and Player will be paid the weekly or bi weekly portions of his yearly salary having become due and payable up to the time of termination.

7. DEDUCTIONS. Any advance made to Player will be repaid to Club, and any properly levied Club fine or Commissioner fine against Player will be paid, in cash on demand or by means of deductions from payments coming due to the Player under this contract, the amount of such deductions to be determined by Club unless this contract or any collective bargaining agreement in existence during the term of this contract specifically provides otherwise. physical condition. Player will undergo a complete physical examination by the Club physician upon Club request, during which physical examination Player agrees to make full and complete disclosure of any physical or mental condition known to him which might impair his performance under this contract and to respond fully and in good faith when questioned by the Club physician about such condition. If Player fails to establish or maintain his excellent physical condition to the satisfaction of the Club physician, or make the required full and complete disclosure and good faith responses to the Club physician, then Club may terminate this contract.

9. INJURY. Unless this contract specifically provides otherwise, if Player is injured in the performance of his services under this contract and promptly reports such injury to the Club physician or trainer, then Player will receive such medical and hospital care during the term of this contract as the Club physician may deem necessary, and will continue to receive his yearly salary for so long, during the season of injury only and for no subsequent period covered by this contract, as Player is physically unable to perform the services required of him by this contract because of such injury. If Player’s injury in the performance of his services under this contract results in his death, the unpaid balance of his yearly salary for the season of injury will be paid to his stated beneficiary, or in the absence of a stated beneficiary, to his estate.

10. WORKERS’ COMPENSATION. Any compensation paid to Player under this contract or under any collective bargaining agreement in existence during the term of this contract for a period during which he is entitled to workers’ compensation benefits by reason of temporary total, permanent total, temporary partial, or permanent partial disability will be deemed an advance payment of workers’ compensation benefits due Player, and Club will be entitled to be reimbursed the amount of such payment out of any award of workers’ compensation.

11. SKILL, PERFORMANCE AND CONDUCT. Player understands that he is competing with other players for a position on Club’s roster within the applicable player limits. If at any time, in the sole judgment of Club, Player’s skill or performance has been unsatisfactory as compared with that of other players competing for positions on Club’s roster, or if Player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract. In addition, during the period any salary cap is legally in effect, this contract may be terminated if, in Club’s opinion, Player is anticipated to make less of a contribution to Club’s ability to compete on the playing field than another player or players whom Club intends to sign or attempts to sign, or another player or players who is or are already on Club’s roster, and for whom Club needs room.

12. TERMINATION. The rights of termination set forth in this contract will be in addition to any other rights of termination allowed either party by law. Termination will be effective upon the giving of written notice, except that Player’s death, other than as a result of injury incurred in the performance of his services under this contract, will automatically terminate this contract. If this contract is terminated by Club and either Player or Club so requests, Player will promptly undergo a complete physical examination by the Club physician.

13. INJURY GRIEVANCE. Unless a collective bargaining agreement in existence at the time of termination of this contract by Club provides otherwise, the following injury grievance procedure will apply: If Player believes that at the time of termination of this contract by Club he was physically unable to perform the services required of him by this contract because of an injury incurred in the performance of his services under this contract, Player may, within 60 days after examination by the Club physician, submit at his own expense to examination by a physician of his choice. If the opinion of Player’s physician with respect to his physical ability to perform the services required of him by this contract is contrary to that of the Club’s physician, the dispute will be submitted within a reasonable time to final and binding arbitration by an arbitrator selected by Club and Player or, if they are unable to agree, one selected in accordance with the procedures of the American Arbitration Association on application by either party.

14. RULES. Player will comply with and be bound by all reasonable Club rules and regulations in effect during the term of this contract which are not inconsistent with the provisions of this contract or of any collective bargaining agreement in existence during the term of this contract. Player’s attention is also called to the fact that the League functions with certain rules and procedures expressive of its operation as a joint venture among its member clubs and that these rules and practices may affect Player’s relationship to the League and its member clubs independently of the provisions of this contract.

15. INTEGRITY OF GAME. Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefore acknowledges his awareness that if he accepts a bribe or agrees to throw or fix an NFL game; fails to promptly report a bribe offer or an attempt to throw or fix an NFL game; bets on an NFL game; knowingly associates with gamblers or gambling activity; uses or provides other players with stimulants or other drugs for the purpose of attempting to enhance on-field performance; or is guilty of any other form of conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football, the Commissioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely; and/or to terminate this contract.

16. EXTENSION. Unless this contract specifically provides otherwise, if Player becomes a member of the Armed Forces of the United States or any other country, or retires from professional football as an active player, or otherwise fails or refuses to perform his services under this contract, then this contract will be tolled between the date of Player’s induction into the Armed Forces, or his retirement, or his failure or refusal to perform, and the later date of his return to professional football. During the period this contract is tolled, Player will not be entitled to any compensation or benefits. On Player’s return to professional football, the term of this contract will be extended for a period of time equal to the number of seasons (to the nearest multiple of one) remaining at the time the contract was tolled. The right of renewal, if any, contained in this contract will remain in effect until the end of any such extended term.

17. ASSIGNMENT. Unless this contract specifically provides otherwise, Club may assign this contract and Player’s services under this contract to any successor to Club’s franchise or to any other Club in the League. Player will report to the assignee Club promptly upon being informed of the assignment of his contract and will faithfully perform his services under this contract. The assignee club will pay Player’s necessary traveling expenses in reporting to it and will faithfully perform this contract with Player.

18. FILING. This contract will be valid and binding upon Player and Club immediately upon execution. A copy of this contract, including any attachment to it, will be filed by Club with the League Commissioner within 10 days after execution. The Commissioner will have the right to disapprove this contract on reasonable grounds, including but not limited to an attempt by the parties to abridge or impair the rights of any other club, uncertainty or incompleteness in expression of the parties’ respective rights and obligations, or conflict between the terms of this contract and any collective bargaining agreement then in existence. Approval will be automatic unless, within 10 days after receipt of this contract in his office, the Commissioner notifies the parties either of disapproval or of extension of this 10-day period for purposes of investigation or clarification pending his decision. On the receipt of notice of disapproval and termination, both parties will be relieved of their respective rights and obligations under this contract.

19. DISPUTES. During the term of any collective bargaining agreement, any dispute between Player and Club involving the interpretation or application of any provision of this contract will be submitted to final and binding arbitration in accordance with the procedure called for in any collective bargaining agreement in existence at the time the event giving rise to any such dispute occurs.

20. NOTICE. Any notice, request, approval or consent under this contract will be sufficiently given if in writing and delivered in person or mailed (certified or first class) by one party to the other at the address set forth in this contract or to such other address as the recipient may subsequently have furnished in writing to the sender.

21. OTHER AGREEMENTS. This contract, including any attachment to it, sets forth the entire agreement between Player and Club and cannot be modified or supplemented orally. Player and Club represent that no other agreement, oral or written, except as attached to or specifically incorporated in this contract, exists are conflicting provisions in any collective bargaining agreement in existence during the term of this contract, in which case the provisions of the collective bargaining agreement will take precedence over conflicting provisions of this contract relating to the rights or obligations of either party.

22. LAW. This contract is made under and shall be governed by the laws of the State of
23. WAIVER AND RELEASE. Player waives and releases any claims that he may have arising out of, related to, or asserted in the lawsuit entitled White v. National Football League, including, but not limited to, any such claim regarding past NFL Rules, the College Draft, Plan B, the first refusal/compensation system, the NFL Player Contract, preseason compensation, or any other term or condition of employment, except any claims asserted in Brown v. Pro Football, Inc. This waiver and release also extends to any conduct engaged in pursuant to the Stipulation and Settlement Agreement in White (“Settlement Agreement”) during the express term of that Settlement Agreement or any portion thereof. This waiver and release shall not limit any rights Player may have to performance by the Club under this Contract or Player’s rights as a member of the White class to object to the Settlement Agreement during its review by the court in Minnesota. This waiver and release is subject to Article XIV (NFL Player Contract), Section 3(c) of the CBA.


(a) Each of the undersigned hereby confirms that (i) this contract, renegotiation, extension or amendment sets forth all components of the player’s remuneration for playing professional football (whether such compensation is being furnished directly by the Club or by a related or affiliated entity); and (ii) there are not undisclosed agreements of any kind, whether express or implied, oral or written, and there are no promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind that have not been disclosed to the NFL involving consideration of any kind to be paid, furnished or made available to Player or any entity or person owned or controlled by, affiliated with, or related to Player, either during the term of this contract or thereafter. (b) Each of the undersigned further confirms that, except insofar as any of the undersigned may describe in an addendum to this contract, to the best of their knowledge, no conduct in violation of the Anti-Collusion rules of the Settlement Agreement took place with respect to this contract. Each of the undersigned further confirms that nothing in this contract is designed or intended to defeat or circumvent any provisions of the Settlement Agreement, including but not limited to the Rookie Pool and Salary Cap provisions; however, any conduct permitted by the CBA and/or the Settlement Agreement shall not be considered a violation of this confirmation. (c) The Club further confirms that any information regarding the negotiation of this contract that it provided to the Neutral Verifier was, at the time the information was provided, true and correct in all material respects.


THIS CONTRACT is executed in six (6) copies. Player acknowledges that before signing this contract he was given the opportunity to seek advice from or be represented by persons of his own selection.

___________________________ ___________________________
PLAYER                                         CLUB
__________________________ ___________________________
Date                                              Date



Prohibited Conduct of NFL Agents

NFL agents ("Contract Advisors") are governed by NFL Players Association regulations. The following are some of the more relevant provisions.

"(1) Representing any player in individual contract negotiations with any Club unless he/she (i) is an NFLPA Certified Contract Advisor; (ii) has signed the Standard Representation Agreement with such player; and (iii) has filed a copy of the Standard Representation Agreement with the NFLPA along with any other contract(s) or agreement(s) between the player and the Contract Advisor;

(2) Providing or offering money or any other thing of value to any player or prospective player to induce or encourage that player to utilize his/her services;

(3) Providing or offering money or any other thing of value to a member of the player’s or prospective player’s family or any other person for the purpose of inducing or encouraging that person to recommend the services of the Contract Advisor;

(4) Providing materially false or misleading information to any player or prospective player in the context of recruiting the player as a client or in the course of representing that player as his Contract Advisor; ...

(21) (a) Initiating any communication, directly or indirectly, with a player who has entered
into a Standard Representation Agreement with another Contract Advisor and such Standard Representation Agreement is on file with the NFLPA if the communication concerns a matter relating to the:
(i) Player’s current Contract Advisor; (ii) Player’s current Standard Representation Agreement;
(iii) Player’s contract status with any NFL Club(s); or (iv) Services to be provided by prospective Contract Advisor either through a Standard Representation Agreement or otherwise.
(b) If a player, already a party to a Standard Representation Agreement, initiates communication
with a Contract Advisor relating to any of the subject matters listed in Section 3(B)(21)(a) the Contract Advisor may continue communications with the Player regarding any of those matters.
(c) Section 3(B)(21) shall not apply to any player who has less than sixty (60) days remaining
before his NFL Player Contract expires, and he has not yet signed a new Standard
Representation Agreement with a Contract Advisor within the sixty (60) day period.
(d) Section 3(B)(21) shall not prohibit a Contract Advisor from sending a player written
materials which may be reasonably interpreted as advertising directed at players in
general and not targeted at a specific player."
A sample player-agent representation agreement can be found in Appendix D of the NFLPA Contract Advisor regulations.

NCAA Rules Pertaining to Agents

Below is the relevant NCAA legislation and applicable NCAA interpretations that pertain to agents.


12.1.1 Amateur Status. An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual:

(a) Uses his or her athletics skill (directly or indirectly) for pay in any form in that sport;
(b) Accepts a promise of pay even if such pay is to be received following completion of intercollegiate athletics participation;
(c) Signs a contract or commitment of any kind to play professional athletics, regardless of its legal enforceability or any consideration received;
(d) Receives, directly or indirectly, a salary, reimbursement of expenses or any other form of financial assistance from a professional sports organization based upon athletics skill or participation, except as permitted by NCAA rules and regulations;
(e) Competes on any professional athletics team (per Bylaw 12.02.4), even if no pay or remuneration for expenses was received;
(f) Subsequent to initial full-time collegiate enrollment, enters into a professional draft (see also Bylaw; or
(g) Enters into an agreement with an agent. Negotiations. An individual may request information about professional market value without affecting his or her amateur status. Further, the individual, his or her legal guardians or the institution's professional sports counseling panel may enter into negotiations with a professional sports organization without the loss of the individual's amateur status. An individual who retains an agent shall lose amateur status. Nonbinding Agreement. An individual who signs a contract or commitment that does not become binding until the professional organization's representative or agent also signs the document is ineligible, even if the contract remains unsigned by the other parties until after the student-athlete's eligibility is exhausted.

12.3.1 General Rule. An individual shall be ineligible for participation in an intercollegiate sport if he or she ever has agreed (orally or in writing) to be represented by an agent for the purpose of marketing his or her athletics ability or reputation in that sport. Further, an agency contract not specifically limited in writing to a sport or particular sports shall be deemed applicable to all sports, and the individual shall be ineligible to participate in any sport. Representation for Future Negotiations. An individual shall be ineligible per Bylaw 12.3.1 if he or she enters into a verbal or written agreement with an agent for representation in future professional sports negotiations that are to take place after the individual has completed his or her eligibility in that sport. Benefits from Prospective Agents. An individual shall be ineligible per Bylaw 12.3.1 if he or she (or his or her relatives or friends) accepts transportation or other benefits from:
(a) Any person who represents any individual in the marketing of his or her athletics ability. The receipt of such expenses constitutes compensation based on athletics skill and is an extra benefit not available to the student body in general; or
(b) An agent, even if the agent has indicated that he or she has no interest in representing the student-athlete in the marketing of his or her athletics ability or reputation and does not represent individuals in the student-athlete's sport.

12.3.2 Legal Counsel. Securing advice from a lawyer concerning a proposed professional sports contract shall not be considered contracting for representation by an agent under this rule, unless the lawyer also represents the individual in negotiations for such a contract. Presence of a Lawyer at Negotiations. A lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the individual. A lawyer's presence during such discussions is considered representation by an agent.

12.3.3 Athletics Scholarship Agent. Any individual, agency or organization that represents a prospective student-athlete for compensation in placing the prospect in a collegiate institution as a recipient of institutional financial aid shall be considered an agent or organization marketing the individual's athletics ability or reputation. Talent Evaluation Services and Agents. A prospect may allow a scouting service or agent to distribute personal information (e.g., high-school academic and athletics records, physical statistics) to member institutions without jeopardizing his or her eligibility, provided the fee paid to such an agent is not based on placing the prospect in a collegiate institution as a recipient of institutional financial aid.


Benefits Resulting from an Established Relationship (I)

Interpretation: The subcommittee reviewed the application of NCAA Bylaw as it relates to factual situations in which an individual (student-athlete or prospective student-athlete) has received benefits prior to or during collegiate enrollment from someone other than a family member or legal guardian, and agreed that the following objective guidelines generally should be used in determining whether such benefits are contrary to the legislation:

1. Did the relationship between the athlete (or the athlete's parents) and the individual providing the benefit(s) develop as a result of the athlete's participation in athletics or notoriety related thereto?
2. Did the relationship between the athlete (or the athlete's parents) and the individual providing the benefit(s) predate the athlete's status as a prospective student-athlete?
3. Did the relationship between the athlete (or the athlete's parents) and the individual providing the benefit(s) predate the athlete's status achieved as a result of his or her athletics ability or reputation?
4. Was the pattern of benefits provided by the individual to the athlete (or the athlete's parents) prior to the athlete attaining notoriety as a skilled athlete similar in nature to those provided after attaining such stature?

Discussion of the Bengals loyalty clause

Below is an article I wrote back in 2003 concerning the Bengals loyalty clause we recently discussed in class.

POSTED MAY 21, 2003

Recently, media reports have been breathlessly reporting the utilization by the Cincinnati Bengals of language in the signing bonus of the Carson Palmer contract that penalizes Palmer if he makes disparaging comments about the Bengals club, its coaches or management. As readers of this column know, I previously had discussed this “loyalty clause” provision in regard to previous Cincinnati draftee and veteran contracts. Generally, violation of the provisions by the player will result in the club being able to recover a portion of the signing bonus paid to the player when he signed his contract. Since the clause is once again making the news, a revisit of its intricacies follows.

Of concern to the players and agents concerning the loyalty clause (which has been upheld as being valid after the NFLPA filed a grievance against its validity) is the lack of the specificity of the loyalty clause language and how unintended comments by the player could be construed to be a violation of the clause.

The original version of the clause, which appears in at least one player contract, is as follows:

"If player makes any public comment to the media, including but not limited to the newspaper, magazines, television, radio or Internet that is derogatory or critical of club, club coaches, or club management, player shall forfeit and shall immediately return and refund to the club that amount of bonus herein provided." (emphasis added)

Several issues arise from some of the words of this clause which could cause misinterpretation of the provisions, including the following:

1. "Public Comment." Player makes a remark to a teammate in locker room that his position coach is "not organized." The comment is overheard by a reporter and printed in paper the next day. Is this a public comment made to the media (violation) or a personal comment to a teammate (not violative)? If it is a public comment to media, is it derogatory and/or critical (violation) or merely an observation (no violation)?

2. "To Media." Player, in the middle of the game, gets into argument with a coach and the dispute is seen by the television audience; player tells coach that "we stink and I am tired of it." Even though comments are between player and coach, does the fact that media shows it and then later discusses in greater detail violate the loyalty clause language (i.e., critical comments about club)?

3. "Derogatory or Critical." Player makes remarks during a post-game news conference that “the club’s offense is bad,” the club’s “coaching staff and players were not prepared,” “the cheerleaders are ugly,” and that the player himself "stunk." Note, per the loyalty clause, all of these comments could be interpreted as critical or derogatory, even though they are true. The lack of definitiveness in the contract language in what constitutes "critical" or "derogatory" leaves the club the opportunity to take an aggressive position in enforcement of the clause.
4. "Club, Club Coaches, or Management." As noted earlier, the term "club" is very broad; it can include the player himself, teammates, the ticket takers, parking attendants, trainers and even the guys who wash the jockstraps ("they shrunk my jock, those idiots"). Even though the comment about the club, coaches or management has to be a public comment to the media, no exception is provided in the language for comments made by the player directly to the offended individual which is heard by the media, or comments that may be made after a team official retires, is fired or becomes deceased ("you know. I’m glad the club fired Coach Blow after we went 1 and 15 - - he was terrible").

5. "Forfeit and Immediately Return." Player violates clause but does not have money; what is recourse of club (sue?)? Player makes the remarks about club official after player is traded, released, and/or retires from club - - is provision valid? Player makes a derogatory remark to media 15 years after retirement when the Bengals do not invite him to oldtimers day - - can club seek return of signing bonus? Also note that this provision does not put burden on the club to provide notice to player that he has violated the clause; thus, player under these provisions is responsible to determine whether he violated the clause.

6. "That Amount of Bonus." Several of the contracts signed by Bengal players mandate that the player must return a percentage of the bonus based on the year of the contract in which the violation occurs. Thus, if violation occurs in the last week of year one of a 4 year deal, player has to return 100% of signing bonus; if the violation occurs in year two of 4 year deal, 50% is returned. A more equitable formula would be to define the refund amount via a formula involving the total number of regular season games over the entire contract period and the number of games that the player has played before the breach has occurred [example: if player violates clause after 16th game of 4 year (total of 64 games) contract he would have to return 16/64 or one-fourth of signing bonus, not 100% as is the case in existing Bengals language].

There have been several alternative versions of the loyalty clause used by the Bengals. One version (the terms differing from the beforementioned version are noted by underlining) is as follows:

"…if Player makes any public comment to the media, including but not limited to the newspaper, magazines, television, radio, or Internet that breaches Player's obligation of loyalty to Club and/or undermines the public's respect for the Club, Club coaches, or Club management under Paragraph 2 of the NFL Player Contract and Article LV, Section 6 of the Collective Bargaining Agreement (any of the above shall be referred to as a "Voluntary Breach or Failure to Perform"), upon demand of Club, Player shall forfeit and immediately return and refund to Club that amount of bonus herein provided as follows: [Contract then stated a formula that if player violates in first year of contract, 100% of bonus returned, if in second year of 3 year deal, then 67% returned and if in last year 33% of bonus refunded]."

Notwithstanding the modified wording, this alternate provision is as indefinite and confusing as the original provision used by the Bengals. How do you ascertain the "obligation of loyalty" of the player to Club? How do you determine (by poll, referendum?) if the comments of the player undermine the "public" (define "public": in Cincinnati, the U.S. and/or Congo?) Is “respect” interpreted as the public liking the team and/or individual coaches/management personnel or just tolerating them? The references to paragraph 2 of the NFL Player Contract (which section includes such definitive statements as the player "agrees to give his best efforts and loyalty to Club" - how is this determined? - and will conduct himself "with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game” –what?) is also very general and can be misconstrued. Section 6 of Article LV of the CBA includes such helpful language as "best efforts," "express criticism" and comments "which tend to cast discredit upon a Club, a player or any other person involved in the operation of a Club” (i.e., includes guy who handles ticket requests or person who lines the practice field?).

The position of the Bengals in implementing the loyalty clause language is that they are justified in its usage so they can suppress outrageous and disruptive comments of players toward the club, its coaches and management. Since an arbitrator has upheld the validity of the clause for player contracts, it’s only a matter of time before more teams attempt to adopt loyalty clause provisions in their particular player contracts.

Law Students: Assignment for Class Monday, 1/25 and 2/1

Week 2 (1/25) - - Player Agents and Sports
Sports Law text Chp 23 (pp. 1227-1272)

-- NCAA and State Regulation of Agents
-- Review Pennsylvania Athlete Agent Act

Week 3 (2/1) -- Contract Law and Sports: Primer
Sports Law text Chp 4 (pp. 111-149)

-- In Class NFL contract analysis
-- Drafting Do’s and Don’ts (tennis contracts, college coaching contracts, other sports)

Welcome to Del Duca Sports - Sports Law Blog

Welcome to the Del Duca Sports, Sports Law Blog! This blog will discuss issues in sports law that I find interesting, and also will be a resource for my students that are taking the Sports and Entertainment Law course that I teach at the Duquesne University School of Law.

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