By Christopher Deubert, Senior Writer
NFL agent Todd France is one of the most successful agents in the business with an estimated $1.4 billion in active contracts negotiated and a client list that includes Pro Bowlers Derrick Henry, Aaron Donald, and Dak Prescott. His career now hangs in the balance because of his apparent untruthfulness in the NFL Players Association (NFLPA) arbitration process.
In a December 28, 2023 decision, arbitrator Roger Kaplan awarded Jason Bernstein, a competing agent, $810,846.67 in damages from France. While France now seeks to have that decision vacated in federal court, he is also facing potential disciplinary action from the NFLPA.
The Chase For Golladay
Wide receiver Kenny Golladay, a third round pick of the Detroit Lions in 2017, began to outperform his Draft position early in his career. After a 28-catch rookie year, he had 70 catches for 1,063 yards and five touchdowns in 2018.
Golladay’s rising star caught the eye of France. On January 19, 2019, France arranged for Golladay to attend an autograph signing event for which Golladay was paid $7,750. France did so even though Golladay was represented by Bernstein.
Five days later, Golladay terminated Bernstein and, after waiting the five more days required by the NFLPA’s agent regulations, retained France as his agent.
Bernstein Initiates Arbitration
In July 2019, Bernstein filed a grievance with the NFLPA against France alleging that he had violated the NFLPA’s regulations by initiating conversations with Golladay while he was represented by Bernstein and by offering him an inducement to switch agents. It is not uncommon for agents to bring such cases when they perceive a client to have been stolen, but there has never been a decision finding that an agent violated the regulations.
The process here bears mentioning. Kaplan, a labor arbitrator in Alexandria, Virginia, has been the arbitrator in almost all proceedings brought under the NFLPA regulations for the past 30 years, covering hundreds of cases. At Kaplan’s insistence, most cases settle, including likely those where a meritorious claim of client-stealing is presented. Nevertheless, the arbitration process is informal and generally includes little or no discovery, making it challenging to prove such cases.
Consequently, it is not initially surprising that in March 2020, Kaplan issued a decision in France’s favor, finding that Bernstein had failed to prove that France engaged in the alleged wrongful conduct.
France And Golladay Move On
With the arbitration process in the background, Golladay had an exception 2019 season, with 65 catches, 1,190 yards and 11 touchdowns, earning a trip to the Pro Bowl.
Then, in August 2020, France left the powerful Creative Artists Agency (CAA) to join Athletes First, one of the leading agencies in football player representation.
Injuries limited Golladay to five games in 2020, but he still signed a four-year, $72 million contract with the New York Giants after the season, including $40 million guaranteed. France negotiated the contract for Golladay.
The Court Of Appeals Knocks France
France initiated an action in federal court to confirm the March 2020 arbitration decision in his favor. Bernstein countered with his own action, seeking to vacate the decision on the grounds that it was procured by fraud.
The document discovery in those cases revealed that France had been untruthful during the NFLPA arbitration process. Specifically, France had denied both in a pre-hearing deposition and again at the hearing that he had any involvement with Golladay’s January 2019 autograph event. In fact, emails produced in those cases showed that France and his team had arranged the event and negotiated the contract for the event and that France rode to the event with Golladay. Yet, during the arbitration process, France had denied having any documents related to the signing event.
Despite these revelations, a district court declined to vacate the arbitration decision, a high burden under any circumstances.
The United States Court of Appeals for the Third Circuit felt differently – and strongly. In an August 2022 decision, it found that France was involved in the autograph signing and that he had “committed fraud” in the arbitration process. It therefore ordered the March 2020 arbitration decision to be vacated.
Bernstein Tries Again
With the prior decision vacated, Bernstein initiated a new action against France in March 2023.
In a September 2023 decision, Kaplan ruled that the question of whether France had improperly induced Golladay to sign with him and whether he had committed fraud had been fully and fairly decided by the Third Circuit and would not be relitigated. Consequently, the new arbitration was limited solely to the amount of damages France owed Bernstein.
On December 28, 2023, Kaplan issued a decision ordering France to pay Bernstein $810,846.67 in damages, including $450,000 in punitive damages.
Kaplan, the keeper of the NFLPA arbitration process, was clearly offended by France’s conduct. The decision repeatedly references France as having lied or committed fraud, described “lying under oath [as] an abominable offense,” and possibly “also a crime.” Kaplan described “France’s conduct during the 2019 arbitration hearing [as] an affront to good order.” Consequently, Kaplan determined that a “significant response” was “warranted so as to protect the integrity and functionality of the arbitration system and to deter similar misconduct in the future.” For these reasons, Kaplan issued the first ever punitive damages award in an NFLPA arbitration.
The Legal Process Plays On
On March 21, 2024, France filed a petition in federal court to vacate Kaplan’s most recent arbitration decision, as first noted by sports attorney Darren Heitner. France argues he was denied a fair hearing by not being permitted to submit evidence and argument concerning his alleged fraud and also that there was no basis for Kaplan to award punitive damages. France thus claims that the arbitration award was “the product of prejudicial arbitral misconduct.”
Separately, it is believed that France remains under investigation by the NFLPA’s Committee on Agent Regulation and Discipline (CARD). CARD is a panel of active or former NFL players which has the authority to discipline agents, including by potentially revoking their certification. Notably, any decision made by CARD would be appealable to arbitration with Kaplan.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP.
