What are your rights if you wish to become licensed by a players’ association and the union rejects your application? Sometimes there is hope. Other times, not so much.
I had the honor of representing Cleodis Floyd in an arbitration matter against the NFL Players Association roughly a decade ago after the NFLPA denied Floyd’s application to become a certified Contract Advisor. The NFLPA rejected Floyd’s application because he had previously been convicted of bank fraud. The arbitrator overturned the denial after being convinced that Floyd had learned from his mistakes, which was also recognized by the Washington State Bar when it allowed Floyd to sit for (and pass) its examination.
Rosel C. Hurley III was not so lucky. He wished to become licensed as a Player Agent with the National Basketball Players Association but was denied based on his own disciplinary history, which included having his law license suspended by the Ohio Supreme Court.
Hurley filed a lawsuit against the NBPA and the NBA, but the district court dismissed the case for failure to state a claim. On December 30, 2022, the U.S. Court of Appeals for the Sixth Circuit affirmed the lower court’s decision.
In the appellate court’s opinion, the circuit judge agreed that Hurley failed to proffer viable Sherman Act claims. As the judge noted, basic principles of antitrust law foreclosed Hurley’s claims given that Congress broadly exempted labor unions (such as the NBPA) from the Sherman Act’s prohibitions.
But Hurley also claimed that the NBPA and NBA were acting in concert to deny him the capacity to represent professional basketball players. Yet, the judge found that the NBA, with the NBPA, came to a collective bargaining agreement that was standard fare and done for the purpose of protecting players from unscrupulous agent behavior.
“In the absence of plausible allegations that the bargaining was not conducted in self-interested ways, there is little basis to find liability under the Sherman Act,” stated the appellate judge.
Basically, if you are an agent who is denied the ability to serve as a representative under a specific union, then you need to exhaust the appeals process through the union’s arbitration as I did with Floyd. The courts are going to do you no favors given their deference to rules established by labor unions.