A New York state trial court has all but thwarted the claim of a sports agent, who claimed he was entitled to compensation from international basketball player Bismack Biyombo after Biyombo signed a contract with an NBA team.
In so ruling the court determined that plaintiff Igor Crespo did not have a valid claim since he had not been certified by the National Basketball Players Association (NBPA). However, the court did leave the door slightly ajar on Crespo’s claim on entitlement to a percentage of sponsorship revenues and unjust enrichment, as long as both occurred outside his NBA contract.
Crespo is a sports manager based in Vitoria, Spain. He alleged that he first met Biyombo, a native of the Democratic Republic of Congo, in 2009, while Biyombo was pursuing professional basketball in Yemen. After meeting with Biyombo and “observing his potential talent and drive to succeed,” Crespo agreed to offer his “expertise” and help develop Biyombo realize his dream of playing in the NBA. The two entered into a contract that called for Crespo to negotiate his contracts for “sports performances in Europe and the NBA” as well as exclusively represent Biyombo in the negotiation of any sponsorship contracts.
As part of the agreement, Biyombo agreed to pay the plaintiff: “(a) 10 percent of his earnings from any sports contract made within Europe or the NBA, and (b) 20 percent of his earnings from any sponsorship contracts. The parties agreed to a one-year term for the Agreement, which would thereafter be ‘automatically renewed by year in the absence of written notice sent by registered post at least 90 (ninety) days before its expiry.’”
However, Biyombo used another agent to sign his NBA contract. Crespo responded with a lawsuit for breach of contract, unjust enrichment, and tortious interference of contract against the other agent. Biyombo countered with a motion to dismiss.
Addressing the breach of contract claim, Biyombo argued that the agreement in question is invalid because it violates Section 9(a) of the National Labor Relations Act (NLRA) by designating Crespo as his agent, even though Crespo is not certified by the NBPA. Biyombo made the same argument with regard to the unjust enrichment claim.
Regarding the former, the court noted that because the agreement was “in essence a contract between an NBA player (Biyombo) and an agent seeking to negotiate an NBA contract on his behalf (Crespo), the agreement is subject to and governed by NBPA regulations. Walters v. Harmon, 135 Misc.2d 905, 907-08, 516 N.Y.S.2d 874 (Sup. Ct. New York County 1987) (finding that plaintiffs’ agency contract with defendant was subject to NFL regulations because defendant is a member of the NFL).
“Pursuant to NBPA Regulations, the parties’ agreement that Biyombo would pay a 10 percent fee to (Crespo) for the negotiation of an NBA contract is void. NBPA Regulations provide that ‘no person … shall be permitted to conduct individual contract negotiations on behalf of a player (including a rookie) and/or assist in or advise with respect to such negotiations with NBA clubs … unless he is (1) currently certified as a player agent pursuant to these Regulations, and (2) signs the standard form fee agreement with the player.’ … Based on Crespo’s failure to comply with NBPA regulations, they cannot recover any fees associated with the NBA contract, and the portion of the Agreement providing for such fees is void. See Regulations, Section 4(A) (stating that ‘any agreement between a player agent and a player … which does not meet the requirements of these Regulations shall be of no force and effect’); Scotto v. Mei, 219 A.D.2d 181, 183, 642 N.Y.S.2d 863 (1st Dep’t 1996).”
The court, however, did dismiss the motion to dismiss the “alleged breach relating to a failure to pay 20 percent of his earnings from sponsorship contracts,” finding that the plaintiff’s pleading was “sufficient.”
Similarly, the court found that the plaintiff did “adequately state an unjust enrichment claim with respect to any benefits that Biyombo unjustly retained from their investment in him as a professional athlete. In his affidavit, Crespo states that he expended at least $164,000 on Biyombo’s professional development in expectation that he would be compensated by the agreement. Crespo further alleges that after Biyombo terminated the agreement, Biyombo acknowledged that he had been unjustly enriched and separately agreed to repay the funds that Crespo expended on him. To support his claim, Crespo submits an email that Biyombo purportedly wrote to his colleague Richard Gonzalez, in which Biyombo appears to reflect on his termination of the agreement and states: ‘it has been hard to make that decision, but I hope you understand it. Although you do not have your money today, you will have it tomorrow.’”
Igor Crespo and Igor Crespo D/B/A Protalent Sports Management v. Bismack Biyombo and Wasserman Media Group, LLC; Sup. Ct. N.Y., New York Co.; Index No. 651616/2014, 2015 N.Y. Misc. LEXIS 3272; 2015 NY Slip Op 31710(U); 9/4/15
