Excel Sports Management has filed a lawsuit against media talent agents Gideon Cohen, William Petok, and Katherine Cutler. The case was initiated on August 20, 2024, and is pending in New York state court.
The Complaint alleges that Cohen, Petok, and Cutler, who were employed by Excel, breached their employment contracts when they left Excel to join competitor Athletes First and called Excel’s clients intending to solicit them on behalf of their new employer. At the time of filing, two clients (Lisa Byington and Kevin Kugler) had allegedly already terminated their relationships with Excel and Excel was under the impression that at least four other clients had been solicited by the defendants to make a change of representation.
In the Complaint, it is revealed that Cohen, who built Excel’s Media Talent Division, was paid a base salary and discretionary bonus of at least $100,000 annually. His employment agreement included certain restrictive covenants as shown below:
Petok and Cutler separately agreed to the following:
If this litigation progresses, the main question is whether Cohen, Petok, and Cutler solicited, encouraged, or induced any client or prospective client to end their relationship with Excel or not sign with Excel. Alternatively, it could be argued that there was no solicitation or encouragement and that the clients departed on their own volition.
Separately, there will likely be a legal dispute surrounding the enforceability of such a restrictive covenant and whether it is supported by a legitimate business interest. Excel claims that the restrictive covenants were “crafted narrowly to protect Excel from the specific harms it believed the Former Employees could inflict on its legitimate business interests by virtue of their positions at the company.”
Additionally, the Complaint notes that Cohen’s employment agreement expired in April 2024. It also states that all the defendants were at-will employees. However, the restrictive covenants were intended to survive the expiration of the employment agreements, and that solicitation occurred within the timeframe that the prohibition remained in place.
Heitner created Sports Agent Blog as a New Year’s Resolution on December 31, 2005. Originally titled, “I Want To Be A Sports Agent,” the website was founded with the intention of causing Heitner to learn more about the profession that he wanted to join, meet reputable individuals in the space and force himself to stay on top of the latest news and trends. Heitner now runs Heitner Legal, P.L.L.C., which is a law firm with many practice areas, including sports law and contract law. Heitner has represented numerous athletes and sports agents as legal counsel. He has also served as an Adjunct Professor at Indiana University Bloomington from 2011-2014, where he created and taught a course titled, Sport Agency Management, which included subjects ranging from NCAA regulations to athlete agent certification and the rules governing the profession. Heitner serves as an Adjunct Professor at the University of Florida Levin College of Law, where he teaches a Sports Law class that includes case law surrounding athlete agents and the NCAA rules.
