A federal court of appeals on Tuesday determined that NFL agent Todd France lied under oath about his role in an autograph signing event for New York Giants wide receiver Kenny Golladay and, therefore, an arbitration decision for France in his ongoing legal battle with fellow agent Jason Bernstein was procured by fraud. The ruling highlights the legal risk agents take when attempting to poach other agents’ clients.
“Like something out of the film Jerry Maguire,” Judge Kent Jordan of the U.S. Court of Appeals for the Third Circuit wrote, “these two sports agents fought over Bernstein’s claim that France improperly organized a money-making event for a football player who was then one of Bernstein’s clients, all in an effort to induce that player to fire Bernstein and hire France.”
Golladay, the NFL’s receiving touchdown leader in 2019 and a former Pro Bowler for the Detroit Lions, held an autograph-signing event in Chicago in January 2019 without Bernstein’s involvement, and then three days later, dropped Bernstein as an agent. In canvassing Facebook posts and other sources, Bernstein began to suspect that France, whom Golladay quickly hired after Bernstein’s firing, was behind it.
Soon thereafter, Bernstein, who is president of Clarity Sports, filed an NFLPA grievance against France, alleging France violated NFLPA regulations for certified agents. Those regulations prohibit agents from “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.” It also bars them from “initiating any communication, directly or indirectly, with a player who” is already represented, if that communication relates to agent services.
Per NFLPA dispute resolution provisions, Bernstein was obliged to use arbitration rather than suing. Bernstein accused France, who worked for CAA at the time, of initiating contact with Golladay, arranging for the signing event and then using proceeds from the event to induce Golladay, who was paid about $7,750, to terminate Bernstein and hire France.
France flatly disputed the accusations and repeatedly vowed he was not involved with the event. France also swore he did not possess any contracts, messages or other documents related to the event, though he adopted what Judge Jordan termed a “cramped” interpretation of his obligation to turn over evidence. France maintained he’d only produce documents that were in his actual, physical possession and could not share documents in the possession of CAA, which, Jordan wrote, declined to voluntarily turn over requested materials.
To that point, the NFLPA arbitrator, who was a private citizen and not a judge or other officer of the court, had limited authority to compel witness participation. Golladay, who obviously possessed crucial knowledge about what happened, wouldn’t appear at the arbitration hearing (he did supply an affidavit Jordan found “consistent” with France’s account). The arbitrator also emphasized he had no authority to enforce a subpoena.
France, meanwhile, produced testimony indicating that Golladay pursued him rather than the other way around. Kenneth Saffold, who is described as a mentor of Golladay, urged the player to attend a charity bowling event in 2018 and to introduce himself to France. France testified that Golladay told him he was considering a change in agents and wanted France’s phone number. Saffold advised Golladay to wait to change agents until after the season ended. Under this version of events, the autograph event was “purely coincidental.” The arbitrator ruled for France, who then petitioned a federal court to enforce the arbitration award.
End of the story? Not so fast.
While NFLPA rules required Bernstein to use arbitration to take on France, Bernstein was under no such restriction in seeking redress against CAA and the sports memorabilia dealers involved. He sued them for tortious interference and, in June 2020, saw the fruits of litigation discovery in a still ongoing case.
“Newly revealed evidence,” Jordan wrote, “showed that France was in fact involved with the autograph-signing event.”
The evidence included testimony from one of the memorabilia dealers who said that a colleague of France at CAA had played an instrumental role. The colleague also told the dealer that someone named Todd would accompany Golladay to the signing. Evidence further showed “emails to and from France attached the contract for the event,” text messages referring to Kenny and Todd CAA, and that “France was scheduled to fly to Chicago the day before the event.”
The problem for Bernstein was that this smoking gun evidence surfaced after the arbitrator had already issued his decision against Bernstein. The arbitrator declined to reopen the matter.
But Bernstein had another avenue. Because France had petitioned a federal court to enforce the arbitration award, Bernstein used that legal proceeding to ask the court to vacate the award on account of fraud. Yet the court still sided with France, reasoning that Bernstein should have taken steps earlier on to uncover the evidence.
Jordan, along with Third Circuit Judges Cheryl Ann Krause and David Porter, saw the situation differently.
Writing on the trio’s behalf, Jordan acknowledged that vacating an arbitration award is an arduous effort. Still, Jordan wrote, “perhaps the easiest conclusion in this case . . . is that France committed fraud,” adding, “It is plain that France both lied under oath and withheld important information demanded in discovery.” Further, Jordan wrote, “[France] doubled down by denying in his pre-hearing deposition and at the hearing that he had any knowledge of or involvement in the signing event . . . none of that was true.”
Jordan also rejected the notion that Bernstein failed to do enough. “It piles one unfairness on another,” Jordan wrote, “to say that Bernstein had to seek enforcement of the subpoenas shortly before an arbitration hearing, just to double-check whether France was being truthful.” Bernstein, Jordan added, “did in fact take substantial measures toward uncovering France’s perjury.”
The case is now remanded to the district court, which is ordered to vacate the arbitration award. Bernstein, who demands $2.1 million reflecting lost commissions on Golladay’s contract and endorsement deals, can seek another arbitration.
