A federal judge has granted the National Football League Players Association’s motion to dismiss in a case in which a contract advisor, i.e. agent, alleged that the NFLPA improperly withdrew his certification.
On November 24, 2010, plaintiff Jake Kivisto filed a declaratory action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, challenging the expiration of his NFLPA Agent certification. Kivisto’s certification had expired on October 2, 2009 pursuant to Section 2G of the NFLPA Regulations Governing Contract Advisors.
That section reads as follows:
“The Certification of any Contract Advisor who has failed to negotiate and sign a player to an NFL Player Contract (excluding Practice Squad Contracts) for at least one NFL player during any three-year period shall automatically expire at the end of such three-year period.”
The plaintiff argued that this section of the Regulations violates the collective bargaining agreement and is therefore void.
The court noted, however, that in his application for NFLPA certification, the plaintiff signed a written contract which stated, in pertinent part, as follows:
“I agree that if I am denied certification or if subsequent to obtaining certification it is revoked or suspended pursuant to the Regulations, the exclusive method for challenging any such action is through the arbitration procedure set forth in the Regulations.
Furthermore, Section 5.1 of the Regulations required that its arbitration procedures ‘shall be the exclusive method for resolving any and all disputes that may arise from . . . [a]ny . . . activities of a Contract Advisor within the scope of these Regulations . . . .’”
The plaintiff invoked the provisions and appealed the expiration of his certification to an arbitrator.
“After many requests to postpone by the plaintiff, the arbitration hearing was ultimately scheduled for December 7, 2010,” wrote the court. “The day before the scheduled hearing, however, the plaintiff voluntarily withdrew from arbitration, dismissing his claims with prejudice. The defendant argues that the plaintiff, by voluntarily dismissing with prejudice his claims in arbitration—the same claims he asserts here—has exhausted the one and only remedy available to him pursuant to the written contract he signed when he applied for NFLPA certification. This Court agrees.
“The law is clear that one who has agreed to arbitration must exhaust those remedies before he can litigate the same claims in court. See Jimenez v. Collier Transit Mgmt., Inc., 337 Fed. App’x 804, 807 (11th Cir. 2009) (‘An employee seeking a remedy for an alleged breach of the collective-bargaining agreement . . . must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit . . . under § 301(a) of the Labor Management Relations Act.’) Jimenez further states that ‘if he does not exhaust those remedies or does not participate in arbitration where required under the agreement, the employee may not pursue relief in the courts.’
“Here, it is clear that the plaintiff entered into a contract containing a valid arbitration agreement; the only question is whether his complaint falls within the scope of that agreement. The Court believes that it does. Even assuming, as the plaintiff argues, that his complaint falls outside the scope of the arbitration agreement, the plaintiff clearly demonstrated his assent to arbitrate his dispute by not only appealing it to arbitration, but remaining in the arbitration forum for over a year. See Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, 2783, 177 L. Ed. 2d 403 (2010).”
Jake Kivisto v. National Football League Players Association; S.D. Fla.; Case Number: 10-24226-CIV-MORENO; 2011 U.S. Dist. LEXIS 8827; 1/31/11
Attorneys of Record: (for plaintiff) Pro se, Boca Raton, FL. (for defendant) Howard S. Susskind, LEAD ATTORNEY, Sugarman & Susskind PA, Coral Gables, FL.
