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Sports Law

Basketball Agent’s Appeal Of Certification Denial Gets Blocked

NBPA certification

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.

By Darren Heitner

Darren Adam Heitner, Esq., is a preeminent sports attorney and the founder of Heitner Legal, P.L.L.C., a Fort Lauderdale-based law firm specializing in sports law, contract negotiations, intellectual property, and arbitration. He earned his Juris Doctor from the University of Florida Levin College of Law in 2010 and a Bachelor of Arts in Political Science, magna cum laude, from the University of Florida in 2007, where he was named Valedictorian of the College of Liberal Arts and Sciences. Admitted to practice in the state bars of Florida, New York, and the District of Columbia, as well as multiple federal courts, Darren also serves as a certified arbitrator with the American Arbitration Association.

As an adjunct professor, Darren imparts his expertise through teaching Sports Law at the University of Florida Levin College of Law and Name, Image, and Likeness (NIL) at the University of Miami School of Law in the Entertainment, Arts, and Sports Law LL.M. program. His scholarly contributions include authoring several books published by the American Bar Association, such as How to Play the Game: What Every Sports Attorney Needs to Know, and numerous articles in prominent publications like Forbes, Inc. Magazine, and Above the Law. His thought leadership in NIL has earned him recognition as one of the foremost experts by The Wall Street Journal, USA TODAY, and On3, and he has been lauded as a “power player in NIL deals” by Action Network and a “top sports trademark attorney” by Sportico.

Darren’s passion for sports law led him to establish Sports Agent Blog on December 31, 2005, initially titled “I Want To Be A Sports Agent.” The platform, created as a New Year’s resolution, has grown into a cornerstone of the sports agency community, offering in-depth analysis of industry trends, legal disputes, and agent-player dynamics. His commitment to the field is further evidenced by his representation of numerous athletes and sports agents, as well as his prior role as an Adjunct Professor at Indiana University Bloomington, where he developed and taught a course on Sport Agency Management from 2011 to 2014.

Darren’s contributions have been recognized with prestigious honors, including the University of Florida’s 40 Under 40 Award, the University of Florida Levin College of Law’s Outstanding Young Alumnus Award, and designation as the best lawyer in Fort Lauderdale by Fort Lauderdale Magazine. He remains an active voice in the sports law community, sharing insights through his weekly NIL newsletter and his X posts, engaging a broad audience on legal developments in sports.