In a ruling that opens the door for agents to bring legal claims against players’ associations, the U.S. Court of Appeals for the Sixth Circuit on Monday partially held for an NFL agent who had lost his NFLPA license after being charged with conspiring to swindle pro athlete clients out of millions of dollars. Vincent “Vinnie” Porter, who in the early 2010s represented linebacker Devon Kennard and tight end Brian Tyms, can proceed with negligence and breach of duty claims against the NFLPA.
The Justice Department charged Porter in October 2014 with conspiracy to commit wire fraud. Porter, who pleaded not guilty, allegedly partook in a conspiracy where those involved would retain millions of dollars intended to buy Burger King franchises. A year later, the charge was dismissed in accordance with a deferred prosecution agreement, which says prosecutors agree to drop a case if the defendant meets certain criteria. Porter acknowledged a failure to report what he knew about the alleged scheme.
Porter appealed the NFLPA’s suspension, which led to an arbitration hearing. Arbitrator Roger Kaplan found the NFLPA could not prove that Porter engaged in conduct prohibited by NFLPA regulations. Porter’s NFLPA license was reinstated.
Porter’s attorneys contend that, although their client prevailed in arbitration, the union “continued to punish, harass and/or interfere [with]” Porter and undermine his “business interests.” As those attorneys tell it, the NFLPA aggressively investigated Porter and went so far as to suggest he perjured himself during his disciplinary appeal. The union is also accused of emailing him about topics that were already resolved and failing to return his emails. These alleged actions are portrayed as “intentional attempts to prevent [Porter] from successfully performing as an agent.” The NFLPA flatly disputes these assertions and maintains that Porter lost clients due to his own legal troubles.
Porter sued the NFLPA a few years ago, arguing tortious interference, negligence and breach. The NFLPA moved for dismissal citing, among other laws, the National Labor Relations Act. The NLRA grants the NFLPA the right to serve as the exclusive representative of NFL players for matters of pay, wages and other aspects of employment. Agents can only represent NFL players if the NFLPA grants them a license. Of importance here, the NLRA preempts legal claims against the NFLPA if they concern players’ employment.
The NFLPA maintains that Porter’s claims unambiguously concern players’ employment and thus his right to act as the players’ bargaining agent. Last year, U.S. District Judge Stephanie Dawkins Davis agreed and dismissed Porter’s case as NLRA preempted.
But Sixth Circuit Judge Danny Julián Boggs, writing for a three-judge panel, essentially said, not so fast.
Boggs agreed that Porter’s claims for tortious interference are preempted. Those claims concern his business relationships with NFL players and thus “necessarily derive from the NFLPA’s delegation of its exclusive right to representation.”
It’s a different analysis, Boggs wrote, for Porter’s negligence and breach claims, since they stem from the union’s alleged duty to not suspend his certification without cause. In other words, Porter’s claims against how the NFLPA treated their relationship are between the union and him. “[Those claims] do not concern an entitlement to or usurpation of the NFLPA’s NLRA-protected rights,” the judge wrote.
Boggs stressed Porter hasn’t yet proven the NFLPA broke the law, only that a court can weigh that question. The case has been remanded to the district court for further proceedings.
Porter v. NFLPA is significant because it stands for the proposition that agents can bring lawsuits against unions so long as those claims are separate from how the union represents players.
