By Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
Super-agent David Falk and his agency, Falk Associates Management Enterprises (aka FAME), in 2022 filed suit in the Superior Court for the State of Delaware against former NBA player Evan Turner and his corporate entity EMTURN LLC, asserting causes of action based on breach of contract, unjust enrichment, and quantum meruit.[1] The gravamen of the dispute stems from when FAME negotiated an endorsement contract on behalf of EMTURN/Turner with sportswear companies Li-Ning Sports Technology Development (HK) Co. Limited and Li-Ning Sports USA. Per the terms of those negotiated endorsement agreements, EMTURN/Turner would be compensated as follows: guaranteed minimum cash payments, cash royalties based on Turner’s signature product line, cash performance bonuses, and one million shares of restricted Li-Ning stock.
The fee agreement in place between FAME and EMTURN/Turner at the time those endorsement agreements with Li-Ning were negotiated specified that FAME would receive a 15% marketing fee, increasing to 20% if the marketing income exceeded $2 million in any year, “on all marketing income from leads initially generated by FAME,” regardless of when EMTURN/Turner received compensation.[2] The term “marketing income”, however, was not defined within the parties fee agreement.
Over the course of EMTURN/Turner’s agreement with Li-Ning, EMTURN/Turner paid FAME commissions on the cash compensation, but no commission was ever paid on the restricted stock. In May 2016, after the stock vested but before EMTURN/Turner sold any of the restricted stock share, Turner terminated his agency relationship with FAME. Subsequently, between August 2021 and October 2023, FAME alleged that Turner sold 839,600 shares of Li-Ning stock for a total cash value of approximately $7.2 million.[3] FAME stated that it learned of the sales in early 2022 and promptly invoiced EMTURN/Turner for its commission. When EMTURN/Turner refused to pay, David Falk and FAME filed suit.
The Delaware Superior Court ruled in FAME’s favor when finding that the Li-Ning stock qualified as “marketing income” because it was compensation EMTURN/Turner received under the endorsement contract FAME had negotiated, and because “Delaware courts have held ‘all means all’ when interpreting a contract.”[4] Regarding the issue of the statute of limitations, however, the court found in favor of EMTURN/Turner and dismissed the action in accordance with its summary judgment motion, basing its decision on the fact that because the agreement was silent as to when the stock commission would be due and payable, it needed to turn to the parties’ “course of performance” for guidance. In doing so, the court found that because commissions had historically been paid when EMTURN/Turner received compensation from Li-Ning, and because no objection to that practice had ever been raised, the court concluded the commission on the stock was due when the shares vested – that being on July 1, 2016. Since FAME’s lawsuit was not filed until December 1, 2022, over three years later, the court found that FAME’s claims were time-barred under Delaware’s three-year statute of limitations.[5]
The Delaware Supreme Court, in reviewing the Superior Court’s summary judgement decision, affirmed the Superior Court’s finding that the stock was commissionable, but reversed its statute of limitations ruling. The Supreme Court then remanded the case for a factfinder to determine what constituted a reasonable time for payment of the stock commission.[6]
In reversing the Superior Court’s decision, the Delaware Supreme Court agreed that the Li-Ning stock qualified as commissionable marketing income with Chief Justice Collins Seitz writing that the broad contractual language requiring commissions on “all” marketing income generated from opportunities secured by FAME. The Supreme Court found that the endorsement agreement expressly identified stock as one form of compensation provided to EMTURN/Turner in exchange for promotional services and therefore there was no basis for excluding such compensation from the commission structure.[7]
The more consequential aspect of the decision, however, concerned when FAME’s commission became due. The Supreme Court agreed that the contract was ambiguous regarding the timing of commission payments for stock compensation. Unlike cash payments, the agreement did not expressly state whether commissions on stock were due upon vesting, upon sale, or at some other point. At the Superior Court level, the court resolved that ambiguity through course-of-performance evidence and concluded that commissions accrued at vesting. The Supreme Court, however, found that the evidentiary record supported multiple reasonable interpretations and highlighted evidence showing that FAME consistently invoiced commissions only after EMTURN/Turner received cash payments under the endorsement agreement. In addition, FAME presented evidence that it never sought payment on the stock until EMTURN/Turner liquidated shares and obtained cash proceeds.
The Supreme Court also pointed to testimony from David Falk himself regarding industry custom and practice. Falk testified that demanding commissions immediately upon vesting would be contrary to common sports-agent practices because it could force athletes to pay commissions on illiquid assets whose value might later decline. According to Falk, agents generally avoid placing their interests ahead of their clients by seeking cash commissions before a liquidity event occurs.
As a result, in viewing the record in the light most favorable to FAME, the Supreme Court concluded that a reasonable factfinder could determine that the commission became payable only when Turner sold the stock and realized cash benefit. Because competing interpretations existed, summary judgment by the Superior Court on this issue was therefore inappropriate.
This case between FAME and Evan Turner and his company EMTURN, LLC, together with Delaware Supreme Court’s ruling (and with more to be determined later), is a great example of the intersection between various legal disciplines: sport agency law, contract and contract interpretation, and statutes of limitations. It offers a significant lesson for practitioners and agents alike: when a contract is silent on when payments are due, that silence is not the same as ambiguity, and the consequences of that distinction can determine whether a multimillion-dollar claim can survive or not.
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F.A.M.E. LLC d/b/a Falk Associates Management Enterprises a/k/a FAME v. EMTURN LLC and Evan Turner, Case No. N22C-12-003, MMJ, filed December 1, 2023. ↑
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Id. at page 6. ↑
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Delaware Supreme Court decision date April 20, 2026, at page 5. ↑
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Id., at page 7. ↑
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Id., at page 8. ↑
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Id., at page 15. ↑
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Id., at page 13. ↑
