By Jeff Birren, Senior Writer
In March 2019 agent Ben Dogra sued his firm’s former client Robert Griffin III for fees related to endorsement deals that were obtained for Griffin in 2014, 2015 and perhaps in 2016. In November 2014 Dogra’s employer, CAA Sports LLC, fired Dogra and a dispute arose between Dogra and CAA related to the entitlement of fees from various clients including Griffin. The clock continued to tick as CAA and Dogra arbitrated their dispute from 2015 into 2018 and Griffin’s invoices remained unpaid. CAA and Griffin eventually resolved their disputes but neither side wanted to sue Griffin. Finally, Dogra sued Griffin for the unpaid fees based on an oral contract. The phrase “better late than never” did not apply and the U.S. District Court dismissed the claims based on the statute of limitations on September 9, 2020 (Dogra v. Griffin, U.S. District Court, E. D. Missouri, Eastern Division, Case No. 4:19-cv-00548-SRC (“Dogra”) (9-9-20) at 3).
The Basic Facts
Griffin, “RGIII,” won the 2011 Heisman Trophy and entered the NFL draft. He chose Dogra as his agent. Griffin also had an oral marketing agreement with CAA wherein Griffin “agreed to pay CAA Sports a 15% commission on all marketing and endorsement deals negotiated by CAA Sports on Griffin’s behalf.” Griffin declined to sign a written agreement (Id.).
Dogra handled the negotiation with the Washington metropolitan football club while Mark Heligman was “primarily responsible for Griffin’s marketing” efforts. He negotiated “numerous marketing and endorsement contracts on Griffin’s behalf, including significant deals with Adidas, Subway and Nissan” that created “several million dollars in marketing and endorsement deals for Griffin.” In 2012 Griffin paid CAA $377,111.71 and in 2013 he paid CAA $582,501.64 “from his bank account in California to CAA Sports’ account in California” (Id.) for those deals.
Internal problems then set in. On November 13, 2014 “CAA Sports fired Dogra” (Id.). The firing was reportedly “for probable cause due to rumors of him starting his own sports agency” (Wikipedia, “Ben Dogra.”). Heligman was also let go and “began working for Dogra” (Dogra at 3). In response, Griffin terminated CAA “for all purposes” in December 2014 and “Heligman continued to represent Griffin for endorsement and marketing deals… and still represents Griffin in that capacity today” (Id.).
That same December, CAA sent Griffin a $376,827.98 invoice for 2014 marketing commissions and days later, Dogra “also sent Griffin an invoice for 2014 marketing commissions in the same amount. Griffin did not pay either invoice” (Id. at 4). The CAA invoice stated that payment was due in January 2015. In June 2015 CAA sent Griffin an invoice for $221,275.69 plus the unpaid 2014 invoice. That invoice stated “that payment is due upon receipt. Griffin did not pay the 2015 invoice” (Id.).
The Dogra-CAA Dispute
After Dogra was fired, he asserted that he was owed certain revenues, including commissions on Griffin’s various marketing agreements. CAA disputed the claims and in February 2015 Dogra and CAA entered into arbitration to resolve their disputes. In February 2016 the arbitrator ruled that “Dogra was entitled to client revenue from marketing deals for players for whom he” was the primary agent. However, the arbitrator was unable to determine the precise amounts and issued four supplemental opinions. The last one was in August 2018 (Id.).
While this dispute continued, the parties had a “muddled series of communications” regarding whom Griffin was to pay and how much. Dogra and CAA “provided conflicting directives to Griffin.” Griffin expressed his concern to Heligman who told him to “hold off on you paying anything until after our case is settled so you don’t have anything to worry about…. Cool?” Griffin responded by stating: “Cool by me brother” (Id.).
In November 2017 Griffin hired an attorney to represent him in connection with the unpaid commissions. That attorney told Heligman that Griffin was not looking to reduce what he owed and emailed Heligman stating that he wanted “a final resolution regarding the outstanding fee issues.” That did not happen. The court record “contains no evidence that CAA Sports” had knowledge of these communications (Id.). Consequently, in October 2018 CAA’s counsel wrote Griffin’s lawyer concerning the unpaid bills (Id. at 5). However, by late 2018 “Griffin communicated to Dogra and CAA Sports that he did not owe marketing commissions for 2014, 2015 or 2016 because CAA Sports had not fulfilled its ongoing obligations under the oral contract during these years” (Id.).
The “hot-potato wrangling” between CAA and Dogra continued. Dogra “wanted CAA Sports to sue Griffin to recover the unpaid fees but CAA refused.” Dogra’s attorney told Griffin’s counsel that “Dogra had a clear preference for CAA to bring a lawsuit to obtain these commissions” and that “CAA was obligated under the terms of the arbitration ward to file suit against Griffin” (Id.). Dogra later testified that he “could have” sued Griffin but he “didn’t want” to as it is “bad for business.” Finally, CAA assigned “whatever rights it did (or didn’t) have” to Dogra (Id.).
Dogra Sues
Consequently, on March 22, 2019 Dogra sued Griffin for breach of the oral contract that “was formed between CAA Sports and Griffin” and Dogra was “pursuing this claim by virtue of an assignment of rights he received from CAA Sports” (Id.). Dogra sought $685,000 in unpaid commissions. Griffin answered the complaint in May 2019 and later filed a motion to compel arbitration.
The motion was based on NFL Players Association Regulations that require arbitration to resolve disputes between agents and athletes (Dogra, Memorandum and Order, Doc. #56 at 2 (11-20-19. Dogra opposed the motion, claiming that “Griffin has waived any right to arbitration by his participation in the present case” (Id. at 3). To prevail, Dogra had to prove that Griffin knew of his right to arbitration, that he acted inconsistently with that right and that the inconsistency prejudiced Dogra.
The Court stated that Griffin knew about his right to compel arbitration because in his declaration he stated that he “sought to resolve” the dispute by arbitration. Furthermore, the Court noted that Griffin had “acted inconsistently with that right by his participation in this case” (Id.). Finally, the Court found that Dogra had been prejudiced by the delay because that delay meant that Dogra’s claims were now “time-barred under the NFLPA’s statute of limitations” (Id. at 4). Consequently, “the Court concludes that Griffin waived any right to arbitration” (Id. at 5).
Griffin moved for summary judgment on February 27, 2020 based on the statute of limitations for oral contracts (Dogra, Doc. # 69). Dogra opposed the motion (Dogra Doc. #76 (3-19-20)). The Court first had to decide was whether to apply California or Missouri law. The Court ruled on May 1, 2020, finding that “Dogra’s breach of contract claim originated in California” (Dogra, Memorandum and Order at 2 (5-1-20), based on Eighth Circuit precedent that determined that the locality where the payments were to be received controls. This “case involves ‘failure-to-pay’ an oral contact” and payment was to be made in California. Dogra’s breach of contract claim originated in California and California’s statute of limitations applies (Id. at 3). California has a two-year statute of limitations, so the only remaining questions was whether the statute was tolled. Dogra had not addressed that under California law, so Court directed “the parties to submit additional briefing on this issue” in no more than ten pages. Those briefs due on May 11, 2020 (Id. at 4). The parties complied with the ruling. The Court addressed Dogra’s arguments that the two-year statute of limitations had been tolled.
The Summary Judgment Ruling
The Court ruled on September 9, 2020. It examined each of Dogra’s defenses. Dogra’s first defense was that his claim did not accrue until 2018. That claim is derivative as he was seeking to enforce CAA’s contractual rights. However, CAA had sent Griffin fee invoices in 2014 and 2015. The 2014 invoice stated that payment was due on January 15, 2015 and the June 1, 2015 stated that payment was due upon receipt. As to the claim for 2016, Dogra testified in his deposition that the 2016 fees “are paid in 2016” (Id. at 6). Dogra argued that the claim did not in fact accrue until 2018 because as of the end of 2017 CAA did not know that Griffin did not intend to pay. That is not the law.
To the Court, “the question is not whether CAA Sports knew why Griffin had not paid the invoice but instead that he had not paid” (Id., at 6/7, emphasis in the original. Thus, the “only relevant question” was whether CAA could have discovered facts supporting the cause of action for breach of contract and they had the unpaid invoices. The “discovery rule” had no bearing on the case because CAA Sports knew that Griffin had not paid. Even Dogra admitted in his deposition that “CAA Sports didn’t want to sue him. They could have” (Id. at 7, emphasis in the original). The California statute of limitations for breach of oral contract is two years and this lawsuit came “more than five years after the 2014 invoice was due, nearly four years after the 2015 invoice was due and more than two years after the 2016 fees were due. The statute of limitations bars Dogra’s claim unless the statute was otherwise tolled” (Id.).
Equitable Tolling
Dogra’s second argument was that “the statute of limitations should be equitably tolled” (Id.). This is a judicially created doctrine and can be applied when a plaintiff has several legal remedies and pursues one but not another. The Court reviewed several California cases and the “common thread in all these cases is that the plaintiff’s pursuit of the alternative remedy provided notice of the claim to the eventual defendant during the limitations period” (Id.). Dogra did not argue that CAA had several legal remedies available to it nor that his arbitration with CAA provided notice to Griffin. He argued that Griffin induced CAA to refrain from pursuing its legal remedies. This theory applies to equitable estoppel and not equitable tolling. There was no evidence that CAA pursued any legal or administrative remedy against Griffin during the limitations period, so the equitable tolling argument was “inapplicable” (Id.).
Equitable Estoppel
Dogra’s final argument was that Griffin “should be equitably estopped from asserting the statute of limitations as a defense” (Id.). The Court needed just three paragraphs to analyze the equitable tolling argument, but it took two and a half pages to deal with the equitable estoppel argument. Equitable estoppel can defeat a statute of limitations defense when the defendant’s conduct induced the plaintiff to forebear from suing.
Dogra claimed that Griffin “induced forbearance of suit by his communications to Heligman and Dogra’s attorney” (Id. at 8). His evidence included a text message that Griffin sent to Heligman where Griffin agreed to “hold off” on paying commissions until CAA and Dogra “resolved their disputes through arbitration”; that Griffin’s attorney told Heligman that Griffin was “not looking to reduce what he owed”; that the attorney also told Dogra’s counsel that once he received “all the relevant information we will be prepared to resolve this matter”; that he preferred that it would be done “outside of a legal proceeding”; that he was “working diligently” to gather the information; and told Dogra’s attorney that it was “unclear” whether he actually owed any money” (Id. at 8).
The Court “finds the facts support only one conclusion: amidst the conflict and confusion between Dogra and CAA Sports, Griffin did not induce CAA Sports, by his statements or actions, to refrain from filing suit during the limitations period” (Id.)
Moreover, Dogra was suing “to enforce the contractual rights of CAA Sports” based on the assignment of those rights to him (Id.). Dogra successfully opposed Griffin’s motion to compel arbitration arguing that the marketing contract was with CAA and not him, and that he sued pursuant to an assignment of rights. Yet when faced with the summary judgment motion “Dogra has changed course; arguing that he was ‘always the creditor and real party in interest in this dispute’ and that the assignment was only a ‘technical, legal document’ executed to ‘provide Griffin with clarity’ regarding payment.” Therefore, “Dogra cannot now argue that the Court should simply disregard the assignment as a technicality” (Id.).
Furthermore, the evidence was not helpful. For example, Griffin’s statements to Heligman and Dogra’s attorney “were not statements made to CAA Sports or to anyone person with authority to act” on its behalf and Dogra offered “no evidence” that CAA “was even aware of those statements, much less that CAA Sports was induced thereby to refrain from suing Griffin” (Id. at 9, emphasis in the original). Dogra offered the declaration of CAA’s CFO who stated that he had no reason to believe that Griffin was taking the position that he did not owe commissions. However, that belief was irrelevant “absent evidence that Griffin induced that belief by his statements or actions” (Id.).
Dogra had to show that CAA relied on Griffin’s conduct to its detriment and that the reliance was reasonable. The Court found that “neither element is satisfied.” After all, Griffin’s attorney had told CAA that he “expressly questioned whether Griffin owed anything” and there was no evidence that CAA “relied on this statement in deciding not to sue” Griffin. As Dogra testified, suing a former client was “bad for business. It’s a bad idea to sue your client who is no longer your client” (Id.).
Dogra’s “final attempt to avoid the statute of limitations” was to argue that he, and not CAA, “has always been the creditor and the real party in interest” (Id.). The Court did not see it that way. This “eleventh-hour position” was “incompatible with the language of the arbitration award, his prior statements and actions, and his unambiguous representations to the Court” (Id.). Dogra had previously admitted that the “parties to the oral marketing agreement were Griffin and CAA Sports.” The arbitration award made the same finding and taken together, “these two provisions show that the arbitration award did not change the real party in interest” and the contract had been with CAA, not Dogra.
Dogra admitted that CAA “could have sued” Griffin but did not want to do so. Dogra “tried to convince CAA Sports to file suit against Griffin to recover the marketing commissions, even suggesting that CAA Sports was obligated” to do so and communicated to Griffin that he should pay the marketing commissions to CAA. Dogra later told the Court that he was “pursuing this claim by virtue of an assignment of rights he received from CAA Sports” (Id. at 10). Consequently, Dogra “failed to show that he was the real party in interest” prior to the assignment and “failed to show that Griffin induced CAA Sports to refrain from suing during the limitations period. Thus, Griffin is not equitably estopped from asserting the statute of limitations as a defense to this action” (Id.).
The Court therefore granted the motion for summary judgment and dismissed “all claims with prejudice” (Id.). Dogra filed a notice of appeal (Dogra Doc. #100 (10-9-20) so it is now on to the Eighth Circuit.
Conclusion
Dogra and Heligman are both attorneys. Either one could have proposed to Griffin the simple expedient of a short letter signed by Griffin that stated that the parties were forbearing from litigation as they tried to resolve the various pending disputes. One can also imagine a first-year law student class studying statute of limitations and being presented with the following hypothetical: An attorney wants to enforce an oral claim that accrued three years after the statute of limitations expired. What is the likelihood of success? It is perplexing that this did not occur to Dogra nor Heligman years ago.
