Agent Conduct and the Many Sides of State Law Preemption

Sep 23, 2022

By Johnathan Wayne

A licensed NFL Players Association (“Union”) agent, Vincent Porter, was charged in 2014 with conspiracy to commit wire fraud . Recently, the charge was dismissed and Porter entered into a deferred prosecution agreement for misprision, which included de- liberate concealment of one’s knowledge of a treasonable act or felony .

Previously, the Union suspended his contract-advisor certification, and the NFLPA Committee on Agent Regulation and Discipline (CARD) filed a disciplinary charge against him . Porter appealed his suspension, and the sides arbitrated the dispute . Before the arbitrator issued a decision, the criminal charge was dismissed . The arbitrator then found that CARD failed to sustain its burden to prove that Porter engaged in prohibited conduct under the agent regulations .

Post-arbitration, Porter alleged that the Union con- tinued to harass him and interfere with his business . He subsequently brought state law claims of tortious interference with business expectancy and business re- lationships, negligence, breach of duty, and breach of contract. After removal, the federal district court held that Porter’s claims were preempted by federal law un- der § 9 of the National Labor Relations Act (NLRA), and § 301 of the Labor Management Relations Act (LMRA) .

This appeal followed, with the Sixth Circuit Court of Appeals finding preemption of both business claims under the NLRA, but not under the LMRA .

National Labor Relations Act § 9 Preempts the Business Claims

Section 9 of the National Labor Relation Act, in the context of professional football, bestows all representative power on the Union. This body acts as the representative for its players in negotiations with the NFL and its clubs . The Union delegates this power to agents who have met certain requirements, passed an exam, and paid the fees. Once an agent has checked all the boxes, and the Union will allow that individual to rep- resent its players .

State law preemption will swat away causes of ac- tion that are prohibited or protected by the NLRA . Therefore, the Union argued that Porter’s claims were preempted because they targeted the Union’s represen- tational structure, which is generally protected under the regulations .

In essence, the Union’s stance was that an agent’s career exists because the Union delegated its exclusive representational authority . Because of this delegation, the NLRA preempts any cause of action concerning how the union exercises that delegation .

The Court agreed that direct challenges to the Union’s right of exclusive representation were pre- empted by § 9, but it stopped short of saying that all challenges triggered preemption . Applied to Porter, the Court found that any legal entitlement he might have to his business expectancy or relationships existed only because the Union gave him the right to represent play- ers in the first place.

To hold in favor of Porter on those two counts would have held that Porter had a right to represent players on his own . The Court agreed that only the Union has that right, which is established by the NLRA . Thus, § 9 pre- empted the first two claims.

However, Porter’s negligence, breach of duty, and breach of contract claims survived. The negligence and duty claims concerned the Union’s alleged duty not to suspend his certification without cause. The contract claim related to the Union’s actions towards Porter within the bound of contractual or fiduciary relation- ships with him . The Court held that these claims had nothing to do with an entitlement or restriction of the Union’s rights under the NLRA .

§ 301 of the LMRA Was Not Preemptive

The Court however reversed the lower court ruling that § 301 of the LMRA also preempted Porter’s claims . This issue focused on the nature of the Regulations Governing Contract Advisors (“Regulations”) document, a set of rules that all certified agents must follow. The Regulations prohibit engaging in any conduct involving fraud or dishonesty, such as the allegations against Porter.

The Court first analyzed if the state law claims re- quired interpretation of the terms of the collective bar- gaining agreement . Precedent holds that the preemp- tive effect of § 301 can cover more than just the col- lective bargaining agreement itself, including related contracts . The Union argued that the Regulations were such a contract as this, and that they were covered be- cause they are a labor agreement “significant to the maintenance of labor peace” as stated in § 301 .

Though case law agreed with the sentiment, the Court’s decision turned on the nature of the parties . Ac- cording to § 301 “contract” is defined as an agreement between employers and labor organizations significant to the maintenance of labor peace between them (referring to the Union and the league) . In contrast, the Regulations are an agreement between the Union and its own delegates – the agents it certifies to carry out its business of negotiation on behalf of the players . Consequently, the Regulations were found to not be a con- tract under § 301 and LMRA preemption did not apply .