More on Reggie Bush

The Reggie Bush saga continues. For those lacking its somewhat sensational background, the linked timeline may be of help.

In the latest development, Yahoo! Sports reports that San Diego businessman Michael Michaels, “one of the financiers of failed marketing agency New Era Sports & Entertainment [along with Lloyd Lake], reached a settlement with the current New Orleans Saints running back and former Heisman Trophy winner’s family over unpaid rent and other benefits allegedly provided in an attempt to woo the former University of Southern California star as a client.” The article states that the settlement was for between $200,000.00 and $300,000.00. Instead of signing with New Era Sports, Bush eventually went with marketing agent Mike Ornstein (a former(?) Reebok rep) and agent Joel Segal.

Two things in this story immediately caught my eye. One, it appears that David Cornwell, the attorney for the Bush family, negotiated into Michaels’ settlement a “confidentiality clause,” seemingly designed to preclude Michaels’ further and future assistance with continuing investigations by the NCAA and the Pac-10 (investigating the possibility that Bush received improper benefits while at USC), as well as a federal investigation that was initially prompted, ironically enough, after the Bush side counter-sued New Era Sports for extortion. It was this very investigation, however, that quickly revealed the existence of taped conversations that may confirm that Bush indeed took cash and gifts while he was playing football for USC, and that upwards of $280,000.00 in cash, rent and gifts were given to Bush and his family. The information came to light following the issuance of grand jury subpoenas to multiple witnesses by the U.S. District Attorney’s office in San Diego. The clause also theoretically hinders Michaels’ ability to testify during the course of Lake’s suit against Bush, which is expected to proceed in the near future. Confidentiality clauses are typically equated with non-disclosure agreements and pertain primarily to confidential materials or knowledge (e.g., trade secrets) that the parties wish to share with one another for certain purposes, but wish to restrict from generalized use. But it is unclear, and dubious even, whether or not such a clause will stand up to judicial scrutiny and remain enforceable in this particular context, especially when its sole purpose seems to be to hinder ongoing investigations and judicial process. And Lake’s attorney seems to agree. “No confidentiality agreement trumps a subpoena,” he flatly stated.

Two, Cornwell is not a sports agent; rather, a licensed attorney. But he is a part of an extensive team, comprised mainly of agents and marketing advisors, headed by Segal and Ornstein, whose roles seem to have been blurred and blended. This is worrisome, especially in the modern-day context when many attorney-agents find themselves leading duel lives almost, and when many non-attorneys try to get in over their head. In this case, who is really looking out for Bush’s best interests? And moreover, which parties owe which fiduciary and professional responsibilities to him, and when? Cornwell’s license to practice law is founded in part on his ongoing ethical and professional responsibilities as a lawyer which are usually narrowly construed by respective state bar associations. Is he following these duties? Or is he being influenced by Segal et al.? And when does he cross the line between zealously advocating for his client, versus aiding the obstruction of justice, per 18 U.S.C. §1500-1520? And what about Segal and Ornstein? What duties do they have? And how well are they fulfilling them if Bush, as quoted in the end of the above-linked article, brashly states that if the NCAA called him, “I wouldn’t answer the phone.”

Bush may be able to evade tacklers, but the increasingly intricate web cast by the growing group of arguably unsavory characters with whom he’s aligned himself may prove tougher.

— Jason G. Wulterkens

Sidebar: In the spirit of this piece, and as a note to would-be agents, here are specific by-laws that it may pay to know. By heart. NCAA by-law 12.3.1.2 states that an athlete shall be deemed ineligible if he or she accepts benefits from agents or marketing representatives. It further states that student-athletes, their family or friends cannot receive benefits or loans from agents. Additionally, NCAA by-law 12.1.2.1.6 states that athletes cannot receive preferential treatment, benefits or services because of the individual’s athletics reputation or skill or pay-back potential as a professional athlete, unless such treatment, benefits or services are specifically permitted under NCAA legislation.