The Impact of Agents on Union Solidarity and Collective Bargaining in Major Professional Sports

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By: Alex Stolls For: Labor and Employment Relations Independent Study Research December 2012

Table of Contents:

Introduction NFLPA and agent regulations 1987 lockout and decertification Quarterback Club and licensing wars 2011 NBA lockout and the Super Seven Alan Eagleson Larry Fleisher Baseball agents and the 1994-95 labor dispute Conclusion Bibliography

3 5 7 10 14 20 22 26 27 30

3 Over the past few decades, sports agents have begun to step into the limelight of the professional sports industry becoming more important and in some cases, even becoming household names. You wont find any major motion pictures that detail the stimulating inner-workings of professional sports unions, yet Tom Cruise was nominated for an Academy Award for portraying Jerry Maguire, a sports agent with an interesting love interest and a moral epiphany. Agents are one of the most popularized and essential pieces of the professional sports pie, but when did this happen? When did agents become this important, even part of the union family as labor lawyer and former Interim Executive Director of the National Football League Players Association (NFLPA) Richard Berthelsen put it during my discussions with him?1 What has been the general impact of agents on union solidarity and collective bargaining throughout history? And perhaps even more important, what is the current landscape of the agent business and where is it heading? By examining a number of specific examples across the four major professional sports, this paper will attempt to validate the claim that throughout history, agents have done more to harm union solidarity than to help it. In 1983, Mr. Berthelsen and the rest of the NFLPA drafted the first set of agent regulations to govern the business practices and list of union-approved agents.2 These regulations have since been adopted (in some form) by the National Hockey League Players Association (NHLPA), Major League Baseball Players Association (MLBPA), and National Basketball Players Association (NBPA), and have helped clean up the system and avoid a Wild, Wild, West landscape, as former Assistant Executive Director of the NFLPA Doug Allen put it.3 However, following the implementation of these regulations a number of examples have arose in

4 which agents priorities differ from the goals of the union, one example being the Quarterback Club and licensing wars that plagued the NFL-NFLPA relationship in the late 1980s-early 1990s. In some instances, most notably the 2011 NBA lockout, agents have even had a direct impact on actual collective bargaining between the league and union. I will assert that agent impact can also be affected by sport, circumstance, and the individuals involved. To do this I will examine the similarities and differences between the Alan Eagleson-run NHLPA and the NBPA under Larry Fleishers leadership, exploring why one relationship was able to thrive while the other fell victim to the conflict of interest that existed with an agent in charge of the union. However, this research paper will ultimately claim that agents play an imperative role in todays professional sports landscape as a sounding board and go-between for the league, union, and players. Based on my research and interviews with experienced leaders in the industry, I will provide my opinion on why plenty of historical examples exist of agents opposing union goals and ideas. Yet I will explain why the subjects of my interviews and I have a generally positive outlook on the future role and importance of agents in professional sports.

5 In order to explore this relationship I will first examine the circumstances behind the rise of player agents and the eventual need for agent regulations. Sports agents have existed in some capacity for almost a century, dating back to 1933 when Charles C. Pyle negotiated a $3,000/game contract for Red Grange with the Chicago Bears.4 For the next 40 years the athlete representation business plugged along, until the late 1970s and the years leading up to the 1982 NFL-NFLPA Collective Bargaining Agreement (CBA) negotiation. As important figures such as Ed Garvey helped sports unions grow in power, the power and influence of agents also began to grow. Agents essentially went from secretive to optional to necessary in a decade. As agents began to jump to the forefront of the professional sports landscape, the NFLPA was faced with implementing the first ever agent regulations in professional sports. Two labor leaders that were instrumental in drafting and implementing these regulations were Mr. Berthelsen and former Assistant Executive Director of the NFLPA and former President of Players Inc. Doug Allen. During my discussion with Mr. Berthelsen, he explained that by the late 1970s leading up to the 1982 CBA negotiation, the NFL and its owners were essentially asking the union what do you want to negotiate with us and what should we negotiate with agents? He feels that around this time the leagues mindset was that the NFLPA was only negotiating issues and ideas that agents did not or chose not to negotiate, and therefore were not as important as the individual player agents. This certainly was not the case (if anything it was the other way around), but Mr. Berthelsen acknowledged that these discussions and the leagues mindset certainly put things in perspective, meaning that if agents were growing more important

6 and beginning to get a bigger chunk of the pie, it was imperative to make sure they were doing things fair and moral.5 Around this time, former Assistant Executive Director Doug Allen explained to me that the NFLPAs next move was to hire a collection of outside lawyers to gauge the possibility of agent regulations, who began by examining the precedent set by the Screen Actors Guild out in Hollywood. Though the SAG did things differently, the basic leverage of both groups came from their right under labor law as the exclusive representatives of each respective group. With their outside lawyers insisting that agent regulations were perfectly legal, the NFLPA traveled across the country to meet with agents and inform them that for the first time in professional sports, the union would be implementing agent regulations. This announcement was met with a wide variety of emotions and opinions from agents who were unsure of the fairness and legality of these new regulations. Arguments took place and threats were made but eventually the regulations were accepted with the NBPA, NHLPA, and MLBPA eventually following suit. By the mid-90s, agent regulations drafted by the unions existed in all of the four major professional sports, and agents had finally become a governed and legitimate piece of the sports industry.6

7 Ironically, the first substantial example of agents having an adverse effect on union solidarity came a few years later when these regulations could not legally be enforced. As the NFL players prepared for the 1987 CBA negotiations their main goal was free agency, a concept that had become incrementally closer in the past couple decades without being truly obtained. When the owners made it clear that they had no intentions to change the current system they had spent years working towards keeping, players voted on and prepared for another strike. Similar to their previous strike in 1982, this one began at the start of the regular season where it would hurt the owners the most financially. However, this time owners were prepared with replacement players and TV deals that stated that the only way for the owners to receive TV revenue was to make sure games were played.7 So that is exactly what happened. 24 days and three regular season games later, NFL veterans left the picket lines and returned to work. Some players such as Mark Gastinueau of the New York Jets and Howie Long of the Los Angeles Raiders crossed the picket line weeks before, claiming they didnt believe in free agency or couldnt afford to sit out.8 When the NFLPA began to realize it was fighting a losing battle, players were forced to admit defeat and crawl back to work without free agency or a guaranteed percentage of the leagues revenue.9 But the NFLPA and its players were far from dead. Learning once again from the previous 1982 labor struggle, the union took to the courts on October 15, 1987 (the same time players were sent back to work) and filed an anti-trust lawsuit against the league in the name of Powell v. NFL, arguing that the NFL was enjoying certain exemptions from

8 challenges by the players under anti-trust laws that were only applicable if a Collective Bargaining Agreement was in place regulating their relationship. Essentially, the players were looking to challenge negotiated issues such as the draft, the salary cap, restrictions on free agency, standard NFL contract, etc. The union and its players felt that these were all considered anti-competitive and therefore illegal under anti-trust law during the time that an agreement is not in place with the union. Since an agreement was yet to be negotiated, the union felt that the NFL and its owners had no right to be exempt from the challenges that the players were trying to make. Judge David Doty agreed and ruled in their favor, proclaiming that the current bargaining impasse the two sides were caught in ended any exemption that the owners were enjoying from anti-trust challenge. The owners immediately appealed this decision feeling confident it would be overturned by the Eighth Circuit Court of Appeals, which indeed it was. As the NFLPAs website perfectly puts it The Eighth Circuit ruled that, so long as a union represented players, they had no rights under antitrust laws to sue owners. The court said that players had to choose between being a union and using their right to strike under labor laws, or relinquishing their union rights and pursing their antitrust rights as individuals in court.10 So in a move that completely shocked the NFL owners, NFLPA leadership chose the latter, and two days after the Eighth Circuit reversed Judge Dotys pro-union decision, the NFLPA Executive Committee voted to give up its status as the collective bargaining agent of the players. A common misconception here is that the NFLPA officially decertified and was no longer a union representing the players. In order to this, the National Labor Relations

9 Board holds a supervised election in which 30% of the bargaining unit is needed to put the union to a vote. If a majority of voters chooses to overthrow and decertify the union then that union is unable to be in existence or represent its players (or members) for one year. Though this is the way it is phrased and described in the media, what the NFLPA actually did was renounce its bargaining rights on behalf of the players, choosing instead to form a professional association whose sole purpose was to pursue litigation on behalf of the individual players. This solution is a little less extreme and is also quicker with no government intervention; a simple majority vote among the union is needed for renunciation of bargaining rights. This was the path that the NFLPA took, and the litigation that began in 1987 with the Powell case culminated in 1990 in the form of McNeil v. NFL, in which New York Jets running back Freeman McNeil was the lead plaintiff in a lawsuit that attempted to get players the free agency system they had fought for for so long.11 Worth noting is the fact that once the NFLPA Executive Committee decided to relinquish its status as the collective bargaining agent of the players, they no longer had the power to regulate agents. Just a few years after the long-overdue agent regulations were drafted and put into effect, football agents found themselves unregulated with no official or legal reasons to support the union and its goals.

10 This is significant because while the free agency battle was taking place in the courtrooms, the league was waging another threatening battle against the union in the form of player licensing deals. Player licensing deals provided revenue to fund the NFLPA from the sale of player names and image rights for everything from trading cards, apparel and memorabilia to player appearances. Licensing money was essentially a fight over a finite amount of resources and control, and during the CBA negotiations and in between agreements this revenue was essential to the union. The NFL recognized an opportunity of their own, and began persuading players to join the leagues own licensing program known as NFL Properties. Mr. Berthelsen explains that it got to the point where league management was offering individual players large sums of money to abandon the NFLPA and make NFL Properties their official licensing agent. When players decided to go this route they were essentially withdrawing their authorization from the group-licensing program set up and run by the NFLPA. Naturally this harmed the union and was counter-productive to what it was currently fighting for, but the NFL and its new licensing program were not easy to turn down. 12 They promised extra opportunities off the field and broadcasting opportunities after their playing career, according to Mr. Allen.13 These false promises, as well as a minimum payment of $10,000, were enough to sway over 700 players to sign up for NFL Properties, with the initial group being a collection of high-profile quarterbacks that became known as the Quarterback Club.14 Eventually the tide started to turn in favor of the union, as the NLRB ruled in March of 1990 that owners committed an unfair labor practice at the end of the replacement-player fiasco by punishing players who participated in the strike by waiting

11 an extra week before allowing them to return to work. This ruling awarded $19 million in damages to the 1,400 players affected. A little over a year later Judge Doty of Minnesota ruled in favor of the players in McNeil v. NFL, setting the stage for a full-blown trial to challenge the leagues longstanding free agent restrictions which the players eventually won, sending both sides back to the negotiating table to complete the 1993 CBA.15 So what role did agents play in the Quarterback Club and licensing wars that plagued this relationship in the early 90s? Mr. Berthelsen put it quite simply Up until the union renounced its right as bargaining representative of the players, agents had an adverse effect on union solidarity.16 But why? As Mr. Allen put it, mainly because agents will always be more motivated by the needs of their clients than anything else. He noted that plenty of agents recognized the importance of the union and advised their clients to avoid joining NFL Properties and the Quarterback Club. Plenty more like Leigh Steinberg tried to have it both ways and appease both sides while ultimately looking out for their clients.17 However for the most part, agents felt that with the potential of no season it was more financially beneficial to side with the NFL and join NFL Properties, taking the quick payday rather then duking it out alongside the NFLPA. While the union fought tirelessly to avoid situations like this and keep players and agents committed to the NFLPAs group licensing system, I feel this time period best represents the impact agents have had on this relationship throughout the course of history. In the early 1980s before agent regulations were put in place, it was fair to say that there was no shortage of agents taking advantage of players. It was not unheard of for an agent to be taking bribes from management or leveraging players if they

12 represented multiple players from the same team or same position. A few agents were even requiring exorbitant percentages as commission, then taking this commission out of the signing-bonus or first-year of the players contract, even if that contract was not guaranteed for injury or performance.18 In addition, many agents during this time were also responsible for providing financial advice, and some set clients up with raw deals or bad investments that left young men recently out of college (or who never attended college) scratching their heads. This naturally did not sit well with the union or its members, which finally instituted the regulations governing the business practices of individual agents and only allowing franchises to negotiate with union-approved agents. Things were much different by the time the 1987 CBA negotiations rolled around. Agents were still very much involved, even more so as they advised or advised against their clients essentially ditching the NFLPA and jumping to NFL Properties and the short-term payday it provided. For some particular players, this appeared to make sense financially while for others, sticking it out with the union was the only option. Therefore during this situation, there were a number of agents who had advised certain clients to join NFL Properties and the Quarterback Club, and certain clients to remain loyal to the unions group licensing system. I feel that this variety of advice and opinions proves the true ultimate goal of agents that has remained steadfast during a number of labor disputes, and that is to do whatever is necessary to represent his/her client. Sometimes that is calling General Managers urging them to take a look at a free agent, other times its answering phone calls from clients and family members at 3am, and most times it means siding with whichever side offers the most substantial and immediate financial support to their client.

13 Throughout the long and winding history of the NFL and NFLPAs relationship, agents have always played an important role in collective bargaining and done plenty to frustrate both the NFL and the NFLPA. With this responsibility certainly comes a great deal of power that agents have been known to flaunt, yet I feel agents are only becoming more important in the professional football landscape, so both the NFL and NFLPA will need to continue to work on working with agents rather than around or against them.

14 However professional football is certainly not the only sport with a history of agents being extremely involved in the labor struggle between league and union. The National Basketball Association and its player union, the NBPA, have had somewhat of a strained and tense relationship recently, which we saw play out right before our eyes in the 2011 lockout. After failing to come to an agreement with the existing CBA set to expire, the NBA officially locked out its players on July 1, 2011. With the main issues of this dispute being money-related in terms of the revenue split between the owners and the players, as well as the exponential growth of salaries and lack of a hard salary cap, NBA deputy Commissioner Adam Silver explained that the recently-expired 2005 CBA created a broken system that produced huge financial losses for our teams.19 Simply put, a younger, more corporate group of owners coupled with an economic recession had too many owners looking at red on their balance sheets. The players were receiving 57% of Basketball Related Income, a number that owners felt was incredibly high. With both sides dangerously far apart on key issues, the summer of 2011 came and went without virtually any hope or progress that a deal was on the horizon.20

Enter the agents.

After a less than productive summer, the NBA and NBPA prepared for a huge face-to-face meeting on October 4 that would effectively determine if the season was going to start on time. The owners felt that the players resolve and commitment to the union was wavering and would continue to, especially in the near future when they began

15 missing out on paychecks. With this in mind, a group of powerful agents felt it was the proper time to ensure they would be heard before the verdict comes down.21 A group of the most powerful agents in professional basketball, including Arn Tellem (Wasserman Media Group), Bill Duffy (BDA Sports), Dan Fegan (Lagardere Unlimited), Leon Rose and Henry Thomas (Creative Artists Agency), Jeff Schwartz (Excel Sports Management), and Mark Bartelstein (Priority Sports and Entertainment) drafted a letter to all of their clients, which encompassed more than half of the players in the NBA.22 The letter served a number of different purposes, encouraging the players to stay strong in their fight against the league and warning them not to settle for an unfair deal simply because it gets them back on the basketball court. With sections including The Current Deal Hurts Your Earning Potential, Refuse Any Deal that Excludes the Players from the Explosive Growth of the NBA, and Never Respond to Ultimatums or Threats Stand Strong for Your Principles, the agents attempted the rally their clients as the lockout hit perhaps its most critical point.23 While trying to keep the players informed, motivated, and encouraged, this collection of powerful agents also had their own suggestions and ideas which they began to vocalize around this time. To be more specific, the agents were pressuring Billy Hunter and the players to decertify the union and take the battle against the league inside the courtroom. Unlike the NFLPAs strategy in 1987, these agents were calling for a fullscale decertification of the NBPA. They felt things were so bad that a move as drastic as this was necessary to make their point and stick it to the union, and these agents felt that starting from scratch and sacrificing an entire NBA season was worth the cause. However, it is worth noting that these agents would have been satisfied with the less-

16 extreme alternative of renunciation of bargaining rights in order to file anti-trust litigation (more similar to the NFLPAs 1987 strategy). It was mostly a belief and a mindset that something substantial needed to be done, and that union management may not have what it takes to do that without a little kick-in-the-butt. However, this proposed (or strongly advised) strategy from the agents was met with far greater scrutiny and debate in the circumstances of this particular labor struggle. Unlike the NFL-NFLPA negotiation in 1987, the union was not suggesting this decertification strategy nor were they on board with it, with NBPA Executive Director Billy Hunter continuously insisting that the union would instead stay the course and pursue the Unfair Labor Practice charge it filed with the National Labor Relations Board (NLRB) against the league months earlier.24 Choosing to break apart the union and pursue anti-trust litigation brought the battle to the courts and their time-frame and schedule, effectively ensuring the entire NBA season would be lost. Some NBA players, including superstars such as Kobe Bryant, felt short-term losses should be strongly considered if they would eventually lead to long-term gains and victories for the players and the union. However there were also plenty of others who had a fair point of their own, explaining that Kobe certainly has the right idea, but also has less at stake regarding these short term losses since hes got a little more in the bank than I do.25 When the NBA players and their union met with league officials on October 4 and followed the advice of their agents by staying strong and refusing to accept a lower percentage of Basketball Related Income, talks broke down once again. Next thing you know, reports were surfacing that the relationship of Billy Hunter and Union President Derek Fisher was crumbling and that Fisher was meeting secretly with Commissioner

17 David Stern and attempting to broker a deal on the side. Though Fisher immediately denied these accusations, soon internal strife was threatening to sink the NBPA as players began choosing sides in Derek Fisher and Billy Hunter spat and also in the decertification or not debate.26 It is impossible to argue the impact and involvement that agents had on this drawn-out, murky labor dispute. A better discussion might be whether this impact was positive or negative. On one hand, this powerful group of agents clearly played a part in creating the internal chaos and difference of opinion among players and union leadership. In an article for CBSSports.com back in November 2011, Ken Berger argued Agents' attempts to influence the negotiations can be harmful even if their overriding point that the players have made too many concessions is accurate.27 Clearly this group of agents had seen numerous CBA negotiations come and go during their collective time representing NBA players. However voicing their opinion and asserting themselves into these labor talks could be taken as a clear sign of distrust and lack of connection with the union. It put players in a difficult position and if were getting extreme, pitted them against each other in a sense. With the Super Seven agents (as they came to be known) representing a large percentage of superstars and NBA AllStars, the suggestion of sacrificing short-term losses for eventual long-term gains was a relatively easy one to propose and back up. However referring back to the earlier quote from an unnamed NBA player, the lesser-known role players who relied on the game checks they were beginning to miss out on had a difficult time supporting a strategy that would effectively ruin any chances of an NBA season. This created a divide between the union and its players at one of the most critical times in the negotiating process. With all

18 that being said, it is tough to argue that agents were not at least partially responsible for the struggles and lack of unity in the NBPA as the 2011 lockout wore on. This lack of unity is ultimately what doomed the NBPA and its players, as they struggled to gain any real leverage and ultimately agreed to a deal that included a 50/50 split of Basketball Related Income (drastically different from the 2005 CBA in which the players received 57% of BRI) as well as a number of other concessions. However was their impact strictly negative? Some would say the agents were simply doing what was necessary given the circumstances. Some would argue the relationship with Billy Hunter and Derek Fisher was doomed regardless of the opinions and actions of the agents. Finally, some would say that without the threat of decertification, the league would not have gotten the kick-in-the-butt it needed to get back to the negotiating table and hash out a deal with its players. According an article in the Sports Business Journal in late September 2011, a lower level NBA player agent noted that the fact that agents are not on the same page as the union could actually spur a deal. He went on the say that though the agents suggestion of decertification would certainly create a chaotic and uncertain situation, and perhaps the threat of this madness could bring both sides together in an effort to avoid this last resort. Giving the NBA and the union a common enemy, that being the agents, is not necessarily the worst thing for the negotiation.28 Perhaps the Super Seven really did know exactly what they were doing. Could the 2011 CBA have been a lot worse for the players had the agents not stepped in and flexed their muscles? Would the league have been truly motivated to return to the negotiating table in good faith if not for the threat of decertification, or would they have been content

19 to sit on TV revenues for a year or so to make a statement? Despite the debate surrounding the true impact agents had, it is clear that the 2011 NBA-NBPA labor dispute and CBA negotiation was one of the most agent-involved negotiations in any of the four major sports, proving that agents are only becoming more and more important in the landscape of professional sports.

20 With player agents recently becoming more important and visible than they have ever been in the sports business, their power and influence will assuredly be something worth noting and managing. For a speech originally planned for the Jefferson Day Dinner in 1945 Franklin D. Roosevelt acknowledged simply Great power involves great responsibility, and one way to further examine the issues of excess power and conflictof-interest in professional sports is to compare and contrast the circumstances surrounding Larry Fleisher and his time at the NBPA with Alan Eagleson and his reign of power at the NHLPA.29 Both were player agents who also ran their respective unions, certainly a potential conflict-of-interest scenario on the surface. The difference between the two is how and why one was able to become one of the most celebrated and important figures in the history of players rights, while the other spent years ripping off both the league AND its players before being sentenced to 18 months in prison. Im referring of course to Alan Eagleson, hockeys first player agent who became the most celebrated and powerful man in hockey before his fall from grace in the mid1990s. After helping form the NHLPA back in the 60s, he was appointed its first Executive Director in 1967. For the next 25 years, he held this position while also being one of the most powerful agents in the business. He was inducted into the Hockey Hall of Fame in 1989 for his work building the NHLPA and advancing the sport of hockey, and was named an Officer of the Order of Canada that same year for his work promoting the sport.30 However, people around the sport eventually began voicing their concerns regarding the scope of Eaglesons power as union chief, player agent, and hockey promoter. In 1989, a movement was led to review the NHLPAs operations under

21 Eagleson.31 While he was initially able to weather the storm, Eagleson eventually stepped down from his post as Executive Director in 1992, hopeful that stepping out of the limelight would be sufficient in slowing down the storm of controversy forming around him. This was not the case, and in September 1991 Russ Conway, sports editor of The Eagle-Tribune, began publishing a series of installments that revealed evidence collected from Conways investigation into Eagleson and his business practices. The series was called Cracking the Ice: Intrigue and Conflict in the World of Big-Time Hockey, and it proclaimed that Eagleson had engaged in an astonishing collection of unethical and criminal conduct for decades.32 Eagleson essentially had his hand in the pockets of both the players and the owners, profiting richly from the international hockey tournaments he was able to organize.33 He embezzled player pension funds, manipulated all parties in order to profit off of players filing for permanent disability due to injury, and used union money for questionable and unauthorized loans to friends.34 Eaglesons story ends with him being sentenced 18 months in prison, serving six, resigning from the Hockey Hall of Fame and disappearing from the spotlight, leaving a shameful but important legacy behind. So where did he go astray, and why was he able to get away with his crimes for as long as he did? What can we learn about the amount of power granted to Eagleson, and this conflict of interest scenario in general? Eagleson was able to succeed largely due to the tremendous amount of trust placed in him by the players. As an agent, Eagleson built a client list of more than 150 NHL players, he negotiated Bobby Orrs first contract with the Boston Bruins and made him the highest-played player in professional history, and was essential in the formation

22 of the NHLPA. He made players realize they should be earning more money, and was instrumental in increasing player rights during the early days of the NHLPA. However as his power continued to grow, so did his shady, behind-the-scenes business practices. Eagleson was essentially too smart for his own good, finding ways to manipulate the groups that trusted him due to his sterling reputation of supporting the players. Holding the positions of union head, player agent, and worldwide promoter all at once is a tremendous amount of power for one individual, and Eagleson simply did not have the morals or will to succeed and leave himself a proper legacy So the lesson learned from the Alan Eagleson mess is simple: Allowing an individual to be a player agent while also holding an important and commanding role with the union gives he/she too much power, and is nothing more than a clear example of a conflict-of-interest.

Well in my opinion, not exactly.

Perhaps the circumstances and individuals involved are just as important as the potential conflict-of-interest scenario itself. To support this claim one must simply examine the similar power yet vastly different legacy of Larry Fleisher and his role in professional basketball.

23 In terms of power and influence, there is perhaps no one who had a greater impact on their particular sport than Larry Fleisher. A Harvard Law graduate working as a lawyer and tax accountant, Fleisher was summoned by the young NBPA in 1962 and immediately began making his presence felt as a true advocate for the players. Working as President of the union as well as General Counsel, Fleisher organized a strike of the All-Star game in 1964 that forced owners to finally adopt a pension plan for players whose careers spanned longer than four years.35 In 1970, he filed a class-action lawsuit seeking to eliminate the leagues reserve clause, which bound a player to a particular team indefinitely unless the team chose to trade him. A lengthy six years later, the Oscar Robertson Settlement finally established free agency for players, and was the first successful challenge to a professional-sports reserve clause.36 In 1983 with NBA owners preparing to implement new methods to cut costs, Fleisher and the union threatened the league with a potentially-crippling mid-season strike. Then miraculously days before the deadline, the two sides reached an agreement that has been called statesmanlike...one of the most innovative in any area of labormanagement relations."37 However, the most remarkable part of Larry Fleishers resume is that he did all of this while also working as one of the most accomplished player agents in the business. His clients have included NBA stars such as Bill Bradley, John Havlicek, Willis Reed, Bob Lanier, Paul Silas, David Thompson, and Jim Paxton. When he negotiated a fouryear, $750,000 contract for Rhodes Scholar Bill Bradley with the New York Knicks, it

24 was by far the largest NBA contract signed to that pointand started the trend toward astronomical player salaries.38 Yet even Fleisher wasnt able to completely escape the whispers and criticisms of having conflicting interests. The argument is simple: How can a lawyer represent the superstars of the league while leading a union that is supposedly bargaining for the interests in many less-talented players? Others are concerned that player appearances and endorsement requests received by the union could easily be funneled towards Fleishers clients. And in 1978, he negotiated a lucrative contract for client Marvin Webster with the New York Knicks, and then proceeded to criticize the extremely generous compensation rewarded to the Seattle SuperSonics in return because he feared its size would discourage teams from bidding on free agents. Clearly these concerns and sticky situations are legitimate and worth considering. Giving one individual the power that both Larry Fleisher and Alan Eagleson had will never be a clean, perfect situation. However, there is a reason that Bill Bradley, a former U.S. Senator from the state of New Jersey, called Fleisher One of the most effective labor leaders in the past three decades.39 Fleisher was able to manage his power and wear a number of different hats mainly due to his ability to always keep players informed and educated. Unlike Eagleson who normally worked behind the scenes while assuring the players he had their best interests in mind, Fleisher kept the players involved while ruthlessly battling management on behalf of them. He even stayed on, without salary, as General Counsel to the NBPA for 19 years after he stepped down from his post as union president.

25 There are few men who could have thrived in such a difficult and potentially murky situation the way Larry Fleisher did. One of the strongest negotiators in the history of professional sports, Fleisher was responsible for numerous monumental victories as the head of the NBPA, while also moonlighting as one of the most successful and respected agents in professional basketball. He maintains great relationships with many of his clients and was proof that if done the right way, it is possible to wear multiple hats and manage a potential conflict-of-interest scenario to ultimately leave a legacy as a true advocate for the players. His true motives and practices were rarely (if ever) questioned, and the legal work he did as head of the union laid the groundwork for the business and overall landscape of professional basketball that we see today.

26 Though Fleisher is certainly a tremendous example of positive agent impact, if there is any sport that could and should be used as a model for agent involvement in collective bargaining, I feel it is professional baseball. Even with agent regulations in place similar to other three major professional sports, baseball player agents have still been able to have a direct positive impact on union solidarity and the MLB and MLBPAs most recent labor struggle. During my interview with basketball agent David Mondress of BDA Sports, he stated simply Donald Fehr and the MLBPA have embraced the agents and that sport has been the most successful with collective bargainingthere is a direct correlation.40 During the 1994-95 labor dispute, agents played a heroic role in expediting the process and getting a deal done. They helped explain the circumstances and bargaining situation to certain owners who were unaware and uninformed of what exactly was happening. They made sure owners were aware that the union was committed to getting a deal done, a terrific example of agents working with the union rather then against it.41 Other high-profile agents even advised union and management officials to change or enhance their leadership style to become more effective negotiators. They encouraged MLBPA officers to abandon their loud, brash negotiating style and try to brainstorm alternative, mutually beneficial solutions. Mondresss statement supports all of this and indicates that the MLBPA took this advice and constructive criticism in stride, establishing a working relationship between agents and the union which cannot be found in any other professional sport.42

27 So what has history taught us about the impact of agents on collective bargaining and union solidarity? On one hand, examples such as the Quarterback Club and the 2011 NBA lockout make it difficult to believe that agents can ever fully support union ideals while ultimately looking out for the well-being of their individual clients. Alan Eagleson seemed to be proof that giving one individual the power of being an agent and a highlevel union executive is a recipe for disaster. However, my research has led me to conclude that this is simply a small part of the story. Examples such as Larry Fleisher and the baseball agents in the mid-1990s are encouraging examples of agents being able to represent and remain loyal to their clients while also supporting the union. With plenty of evidence also suggesting that the NBA agents may have ultimately expedited a deal in 2011 with their pressure, it is difficult to argue the certain and positive impact that agents have had on the professional sports landscape throughout history. With obvious conflict-of-interest pitfalls and numerous delicate situations there are bound to be scattered examples of agents engaging in immoral practices or standing in the way of the union. However, I feel agents in the past have for the most part done an admirable job of representing and looking out for clients while adhering to the union-governed agent regulations, creating a mutually beneficial business relationship. Also worth noting is that as player salaries in all sports continue to increase, I feel agents will continue to become even more important and this delicate relationship will occupy an even greater role in the landscape of professional sports. Agent regulations have been effective in cleaning up the business and allowing agents to be an information source, as well as a communication source, as Mr. Berthelsen put it.43 Howeer these

28 regulations do not solve everything, and a great deal of responsibility also rests on the shoulders of agents, who must continue to follow in the footsteps of moral, respected agents who were able to look out for the interests of themselves and their clients without harming union solidarity or its leverage against the league. Agents are not going anywhere. As Mr. Allen put it, agents will always be necessary to level out the playing field between a young professional athlete who has never negotiated a contract and an organization that has negotiated hundreds or even thousands.44 In addition, sports agents in todays business need to be more familiar with the union and the terms of the CBA than ever before, and I feel this familiarity encourages agents to get behind the union and stay on the same page. Though agents may only negotiate certain aspects of a players individual contract they are involved in virtually every part of the process, even the parts negotiated by the union. I feel this relationship is much more intertwined and connected than it may seem. Issues such as the grievance procedure are negotiated and handled by the union, yet agents certainly involve themselves and are part of the process. The veterans minimum, maximum salary contracts, and rookie wage scale aspects of a Collective Bargaining Agreement are all negotiated by the union and the league. However, agents are certainly affected by these numbers and negotiations, and therefore it is wise for them to be extremely familiar with them. Though the primary concern of an agent is ultimately the well-being of his/her client, the familiarity and interdependent relationship of these agents and the union essentially forces these two groups to work together. The union relies on agents to keep their clients informed and committed to supporting union goals, and agents rely on the union to negotiate fiercely on behalf of the players. With that being

29 said I am confident that as agents continue to become more important they will continue the trend of being a constructive go-between and sounding board for players, management, and the union. After all, I hope to enter this business one day, and with inspiring examples to look up to as well as a few less-than-stellar examples to learn from, it is easy to be optimistic about the future of sports agents. The business does not need a mission statement like Jerry Maguires The Things We Think and Do Not Say, it simply needs agents to continue to be an ethical, honest piece of the professional sports pie by learning from history. Whether it is older, established agentsyoung, up-and-coming agentsor students like myself hoping to break into the business, it is up to everyone to ensure that the business of sports agents continues on the successful, virtuous path that it should.

30

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Telephone Interview with Richard Berthelsen, November 6, 2012. Telephone Interview with Richard Berthelsen, November 6, 2012. Face-to-face Interview with Doug Allen, November 27, 2012.

Shropshire, Kenneth L. The Business of Sports Agents, 2nd Edition. University of Pennsylvania Press; 2nd edition (May 28, 2008)
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Telephone Interview with Richard Berthelsen, November 6, 2012. Face-to-face Interview with Doug Allen, November 27, 2012.

National Football League Players Association, History. https://www.nflplayers.com/About-us/History/

Ethan Trex, Scab Story: The 1987 NFL Strike, Mental Floss, March 12, 2011. http://www.mentalfloss.com/blogs/archives/82262
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Mark Craig, The 1987 NFL Strike: Picking at an old Scab, Star Tribune, June 28, 2011. http://www.startribune.com/sports/vikings/124627618.html?refer=y
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National Football League Players Association, History. https://www.nflplayers.com/About-us/History/

National Football League Players Association, History. https://www.nflplayers.com/About-us/History/

Telephone Interview with Richard Berthelsen, November 6, 2012. Face-to-face Interview with Doug Allen, November 27, 2012.

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National Football League Players Association, History. https://www.nflplayers.com/About-us/History/

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Telephone Interview with Richard Berthelsen, November 6, 2012. Face-to-face Interview with Doug Allen, November 27, 2012. Face-to-face Interview with Doug Allen, November 27, 2012.

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Associated Press, NBA Owners Lockout Players After Sides Fail to Reach New Agreement, Fox News, June 30, 2011. http://www.foxnews.com/sports/2011/06/30/nba-lockout-looms-with-collective-bargaining-agreement-setto-expire/

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Sam Amick, In joint letter, top NBA agents urge players to not back down in talks, Sports Illustrated, October 3, 2011. http://sportsillustrated.cnn.com/2011/writers/sam_amick/10/03/agents.letter/index.html
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Sam Amick, In joint letter, top NBA agents urge players to not back down in talks, Sports Illustrated, October 3, 2011. http://sportsillustrated.cnn.com/2011/writers/sam_amick/10/03/agents.letter/index.html
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Kurt Helin, Players union executive board to meet, try to get on same page, ProBasketballTalk, November 3, 2011. http://probasketballtalk.nbcsports.com/2011/11/03/players-union-executive-board-to-meet-try-to-get-onsame-page/
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The Canadian Encyclopedia, Alan Eagleson, http://www.thecanadianencyclopedia.com/articles/alan-eagleson

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32

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Alexander Wolff, NBA Players Counsel Larry Fleisher Wears a Second Hat As An Agent, Sports Illustrated, February 11, 1985. http://sportsillustrated.cnn.com/vault/article/magazine/MAG1119142/index.htm
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Alexander Wolff, NBA Players Counsel Larry Fleisher Wears a Second Hat As An Agent, Sports Illustrated, February 11, 1985. http://sportsillustrated.cnn.com/vault/article/magazine/MAG1119142/index.htm
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Robert Thomas, Jr, Larry Fleisher, 58, Former Head of Pro Basketball Players Union, New York Times Obituaries, May 5, 1989. http://www.nytimes.com/1989/05/05/obituaries/larry-fleisher-58-former-head-of-pro-basketball-playersunion.html
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41

Jennings, Kenneth M. Swings and Misses: Moribund Labor Relations in Professional Baseball. Praeger (September 16, 1997)
42

Jennings, Kenneth M. Swings and Misses: Moribund Labor Relations in Professional Baseball. Praeger (September 16, 1997)
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Telephone Interview with Richard Berthelsen, November 6, 2012. Face-to-face Interview with Doug Allen, November 27, 2012.

44