MAYBE JERRY MAGUIRE SHOULD HAVE STUCK
WITH LAW SCHOOL: HOW THE SPORTS AGENT
RESPONSIBILITY AND TRUST ACT
IMPLEMENTS LAWYER-LIKE RULES FOR SPORTS
AGENTS
Melissa Steedle Bogad*
INTRODUCTION
Sports representation is a big business making big money.1 Since a
sports agent can earn millions of dollars by signing a “marquee”
athlete,2 agents compete fiercely for clients. These agents can be
* Articles Editor, Cardozo Law Review, J.D. Candidate (June 2006), Benjamin N. Cardozo
School of Law. I thank Professor Daniel A. Crane for his initial advisement on this Note, Brian
A. Bank for his continuing support in seeing this Note published, and the 2005-2006 Editorial
Board and Staff of the Cardozo Law Review as well as Julie Feldman for their invaluable help in
publishing and editing this Note. Personally, I thank my husband, Aaron Bogad, and my family
for supporting me throughout this process and always. Finally, I thank my father, Roger C.
Steedle, for good advice and good genes—of both a lawyer and a sports fan.
1 See Robert E. Fraley & F. Russell Harwell, Sports Law and the “Evils” of Solicitation, 9
LOY. ENT. L.J. 21, 21 (1989) (commenting that there has been significant growth in the sports
representation business due to the “perceived allure of the professional contracting process,” as
well as its highly lucrative aspects).
2 Congressman Tom Osborne of Nebraska, in support of the Sports Agent Responsibility and
Trust Act in a hearing before the House of Representatives, stated that as a first round draft pick
in the National Football League (NFL), an athlete could expect a total salary (including bonus) of
eight to nine million dollars. Sports Agent Responsibility and Trust Act: Hearing on H.R. 361
Before the Subcomm. on Commercial and Admin. Law of the H. Comm. on the Judiciary, 108th
Cong. 4 (May 15, 2003) [hereinafter House SPARTA Hearing (2003)] (statement of Rep.
Osborne). Therefore, since most agents receive a three percent fee, representation of such an
athlete would earn $250,000. Id. While $250,000 in one year is a substantial amount of money,
what makes athlete representation so lucrative is that representation of a first round draft pick
doesn’t require all of an agent’s time. In fact, as Osborne states, “[an agent] could represent
theoretically eight or nine or [ten] first-round picks, which would add up to some fairly large
money.” Id.
Agents also negotiate endorsement contracts, resulting in significant fees. Before ever
playing a single National Basketball Association (NBA) game, and while still a high school
student, LeBron James signed a $90 million endorsement contract with Nike. Mark Alesia, Foot
Soldiers, INDIANAPOLIS STAR, Aug. 1, 2004, at A1. Not a month later, James was the first pick
in the NBA draft and signed a three-year, $12.6 million contract with the Cleveland Cavaliers.
Sports Log; It’s Official: James Signs with Cavs, BOSTON GLOBE, July 4, 2003, at D2.
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attorney-agents or non-attorney agents.3 Several commentators have
contended that only attorneys, rather than non-attorneys, should
represent athletes, including both student and professional athletes.4
Such commentators believe that an attorney’s competence, education,
accountability, and bar association-mandated and -regulated rules of
ethics create a distinct advantage for an athlete that a non-attorney
cannot duplicate.5 An attorney’s expertise in contract drafting and
negotiation, familiarity with collective bargaining agreements, retention
of professional malpractice insurance, and adherence to stringent ethical
standards, implemented and policed by state bar associations, arguably
afford the athlete more safeguards than he would receive with a nonattorney agent.6
Agents, however, do not have a similar, profession-wide, set of
ethical rules.7 Therefore, since salaries are high and agents greatly
outnumber profitable athletes,8 agents sometimes resort to unethical
practices to sign clients.9 An attorney-agent, assuming she does not
3 Attorney-agents comprise at least fifty percent of agents engaged in the business of athlete
representation. David S. Caudill, Revisiting the Ethics of Representing Professional Athletes:
Agents, “Attorney-Agents,” Full-Service Agencies, and the Dream Team Model, 3 VA. SPORTS &
ENT. L.J. 31, 32 (2003) (citing Charles B. Lipscomb & Peter Titlebaum, Selecting a Sports Agent:
The Inside for Athletes & Parents, 3 VAND. J. ENT. L. & PRAC. 95, 99 (2001)).
4 See, e.g., Mark Doman, Attorneys as Athlete-Agents: Reconciling the ABA Rules of
Professional Conduct with the Practice of Athlete Representation, 5 TEX. REV. ENT. & SPORTS L.
37 (2003); Gary P. Kohn, Sports Agents Representing Professional Athletes: Being Certified
Means Never Having to Say You’re Qualified, 6 ENT. & SPORTS LAW. 1, 15 (1988); Stacey M.
Nahrwold, Are Professional Athletes Better Served By a Lawyer-Representative Than an Agent?
Ask Grant Hill, 9 SETON HALL J. SPORT L. 431, 439-53 (1999).
5 Nahrwold, supra note 4, at 439-53; see also Kohn, supra note 4, at 15.
6 See, Nahrwold, supra note 4, at 439-53.
7 See discussion infra notes 23-27 and accompanying text.
8 See, e.g., Ethan Lock, The Regulatory Scheme for Player Representatives in the National
Football League: The Real Power of Jerry Maguire, 35 AM. BUS. L.J. 319, 319-20 & n.2 (1998)
(giving statistics of the number of agents registered with the National Football League Player’s
Association versus the approximate number of active and inactive players); William Rhoden, A
Message to Agents, 38 S. TEX. L. REV. 1107, 1108-09 (1997):
The enterprise of sport has grown faster than our ability to wrap any kind of morality
around it . . . There has been an escalation in the number of men and women who want
to become part of this sprawling entertainment sports complex. Entertainment law was
the craze of the 70s and 80s; sports law is the hot deal of the 80s and 90s. . . . We have
roughly 10,000 agents vying to represent maybe 2,000 athletes in football, baseball,
basketball, hockey, track and field, boxing, and whatever else you can come up with.
See also Darren Rovell, Agents Predict ‘Free-for-All’, ESPN.com, Feb. 5, 2004,
http://sports.espn.go.com/ncf/news/story?id=1728315 (stating that “[a]pproximately 1,200 agents
are registered with the NFL Players Association, more than half of them without a single client”).
9 See Symposium, The Seventh Annual Symposium on Legal Issues in Professional Sports:
Panel III: Ethics and Sports: Agent Regulation, 14 FORDHAM INTELL. PROP. MEDIA & ENT. L.J.
747, 751 (2004). John Genzale, Editor-in-Chief of Street and Smith’s SportsBusiness Journal,
and a panelist at the Symposium, stated that “the single biggest problem in sports revolves around
agents.” Id. Genzale admitted that agents are necessary in today’s sports world, but commented
that:
[A] young athlete who has the potential to make a great deal of money is a fool if he
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disregard her bar-mandated ethical obligations in order to compete
evenly with the non-attorney agent, then suffers a competitive
This competitive
disadvantage in this race to sign athletes.10
disadvantage creates a problem throughout the sports representation
industry. Unethical non-attorney agents (and attorney-agents who resort
to unethical practices in order to compete)11 inhibit ethical attorneyagents’ ability to win clients, consequently driving down the level of
ethical representation throughout the profession, not to mention the
level of expertise, education, and protection provided to the client. In
response to this problem, commentators and professionals have often
appealed for an increase in standardized regulation of non-attorney
agents in order to narrow the competitive advantage non-attorney agents
wield over attorney-agents.12
Congress has recently become concerned with a related problem—
unethical agent practices in recruiting student athletes. In response to
this dilemma, Congress enacted the Sports Agent Responsibility and
Trust Act (SPARTA).13 SPARTA designates four types of agent
conduct in recruiting student athletes as unfair and deceptive acts or
goes out and tries to negotiate the contract by himself. He needs a professional. He
needs someone, besides his parents, that [sic] he can trust. Therein lies the rub,
because, frankly, pardon me, but it is hard to find people to trust out there.
Id. See also Lock, supra note 8, at 319-20 (“The biggest casualty of this competition has been
ethics. Ethics have been sacrificed in a business that was already on the verge of ethical
bankruptcy.”); Richard M. Nichols, Agent, Lawyer, Agent/Lawyer . . . Who Can Best Represent
Student Athletes?, 14 ENT. & SPORTS LAW. 1, 22 (Fall 1996):
[A]n agent may ply a student-athlete with cash, cars, dinners, clothes, or some other
commodity, in violation of NCAA regulations and thereby jeopardize the eligibility of
an entire athletic department, souring the public image of the institution.
Professional sports teams publicly loathe, yet privately deal with, the agents who bring
them talented student-athlete products, sometimes before those student-athletes are
ready for the marketplace.
10 See Doman, supra note 4, at 38 (stating that “a state bar may hold an attorney accountable
for actions that are unethical under lawyer professional responsibility rules, but are otherwise
unpunished in the sports industry”).
11 This Note assumes throughout that attorney-agents strictly adhere to the ethical mandates
promulgated by their state bar associations (or the American Bar Association’s Model Rules of
Professional Conduct (Model Rules), in general). While it may be unfortunately true that not all
attorney-agents do so, the specific effect on the sports representation industry from unethical
attorney-agents is beyond the scope of this Note. This Note’s argument focuses upon the
difference between non-attorney agents, who may or may not act unscrupulously, and attorneyagents, who this Note assumes to act “ethically,” as defined by the Model Rules.
12 See, e.g., Caudill, supra note 3, at 36 (arguing that “more uniform and effective regulation
of those who represent athletes is necessary but unlikely in the current cultural climate of
professional sports”); Michael A. Weiss, The Regulation of Sports Agents: Fact or Fiction?, 1
SPORTS LAW. J. 329, 356 (1994) (arguing for further regulation of the “incompetent sports agent”
in addition to the “unscrupulous sports agent”). Commentators have also clamored for federal
legislation standardizing the regulation of non-attorney agents. See, e.g., David Lawrence Dunn,
Note, Regulation of Sports Agents: Since At First It Hasn’t Succeeded, Try Federal Legislation,
39 HASTINGS L.J. 1031 (1988).
13 Sports Agent Responsibility and Trust Act, 15 U.S.C.S. § 7801 (LexisNexis 2005).
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practices to be policed under the Federal Trade Commission (FTC) Act:
1) making false promises to student athletes; 2) providing anything of
value to the student athletes to induce signature to an agency contract;
3) failing to disclose to the student athlete that signing an agency
contract will jeopardize the athlete’s collegiate eligibility and
scholarship; and 4) predating or postdating an agency contract.14
SPARTA treats all agents alike; it makes no mention of the
difference between attorney-agents and non-attorney agents, nor does it
address attorney-agents’ competitive disadvantage. This Note will
argue, however, that many of SPARTA’s provisions are strikingly
similar to the rules of ethics that govern attorneys, including those
attorneys joining the fast-paced and competitive world of athleterepresentation. This Note will then propose that SPARTA will not
result solely in a federal crackdown on the four above-mentioned
practices, but that SPARTA will also have an unintended result, a
fortuitous by-product. This Note will contend that, by implementing
attorney-like regulations, SPARTA will present, in practice although
not in intent, a first step in narrowing the competitive advantage held by
non-attorney agents over attorney agents. As a result of SPARTA,
attorney-agents may compete more effectively, and athletes may be
more likely to choose an attorney-agent representative, due to the
attorney-agent’s significant expertise, education, and ethical obligations.
As athletes more frequently choose attorney-agents, attorney-agents will
begin to greatly outnumber unethical non-attorney agents, resulting in
an upward surge in ethical and competent representation throughout the
industry. This Note will conclude that SPARTA unintentionally sets the
stage for this sea of change in the problem-ridden world of sports
agency.
Part I of this Note will describe the unethical agent practices that
gave rise to SPARTA’s eventual enactment. This section will also
discuss the academic response to the sports agency industry and the
various solutions suggested by commentators to facilitate competition
by attorney-agents. Part II will examine SPARTA and its legislative
history, and Part III will draw comparisons to attorney ethical and
practical standards. Finally, Part IV of this Note will suggest how the
student athlete-focused SPARTA, due to its similarity to attorney rules,
will also achieve the unintended result of an initial solution to the
attorney-agents’ competitive disadvantage, thereby preventing
unscrupulous agent conduct in the industry as a whole.
14
See id. § 7802(a).
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I. BACKGROUND
A.
Unethical Agent Practices
Professional sports have developed into multi-billion dollar
businesses15 and salaries for professional athletes have skyrocketed into
the millions of dollars.16 Thus, the sports representation business,
populated by “athlete agents,”17 has become an extremely lucrative
business itself. This profitability has resulted in an influx of agents
rushing to sign athletes to representation contracts.18 The class of viable
sports clients, however, is limited and high-income “marquee” athletes
are scarce. Simply too many agents vie for very few clients,
consequently breeding fierce competition in the ever-increasing agent
pool.19
Commentators argue that the sharp decline of ethics in the sports
representation industry is the chief result of this increased competition
among agents.20 Consequences vary for unethical conduct, however,
because the athlete agent population includes both attorney-agents and
non-attorney agents alike. Attorney-agents must abide by rules of ethics
and professional responsibility enforced by state bar associations.21 If
attorney-agents violate these rules, they are subject to sanctions and the
possible loss of their licenses to practice law.22 Conversely, nonattorney agents are not held to industry-wide rules of professional
responsibility or accountability. Although state legislatures,23 player
15 See Nichols, supra note 9, at 1 (asserting that “[t]he gross national product of the sports
industry totaled $63.1 billion in 1988”); cf. Phillip J. Closius, Hell Hath No Fury Like A Fan
Scorned: State Regulation of Sports Agents, 30 U. TOL. L. REV. 511, 511 (1999) (commenting
that intercollegiate athletics, separate from professional sports, have also become multi-billion
dollar industries, especially because college football and basketball have attracted national media
attention and created millions of dollars in income).
16 Golfer Tiger Woods topped Forbes’ 2004 list of “The Best-Paid Athletes” with an annual
income of $80.3 million. The Best-Paid Athletes, FORBES, June 24, 2004, available at
www.forbes.com/2004/06/23/04athletesland.html.
Peyton Manning, quarterback for the
Indianapolis Colts and a graduate of the University of Tennessee, ranked third with an income of
$42 million. Id. Kevin Garnett and Kobe Bryant, both high-school athletes who turned pro
without going to college, came in sixth and tenth, with incomes of $29.7 million and $26.1
million, respectively. See also Doman, supra note 4, at 37 (commenting that seven-figure
incomes are “commonplace” today).
17 Doman, supra note 4, at 37.
18 See Fraley & Harwell, supra note 1, at 21.
19 See supra note 8 and accompanying text.
20 See supra note 9 and accompanying text.
21 “Every lawyer is responsible for observance of the Rules of Professional Conduct.”
MODEL RULES OF PROF’L CONDUCT pmbl. 12 (2004). “Failure to comply with an obligation or
prohibition imposed by a Rule is a basis for invoking the disciplinary process.” Id. at pmbl. 19.
22 See Nichols, supra note 9, at 24.
23 As of January 23, 2006, thirty-three states plus the District of Columbia and the U.S.
Virgin Islands had enacted the Uniform Athlete Agents Act, either in full or in part. See
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associations,24 and the National Collegiate Athletic Association
(NCAA)25 have repeatedly attempted to implement effective athlete
agent regulations,26 these regulations have been far too varied, too
disparate, and, hence, too easily ignored to present an effective method
of preventing unethical conduct.27
NCAA.org,
Uniform
Athlete
Agents
Act
(UAAA)
History
and
Status,
http://www1.ncaa.org/membership/enforcement/agents/uaaa/history.html (last visited Jan. 23,
2006). This legislation was promulgated by the National Conference of Commissioners on
Uniform State Laws to “establish uniformity and provide for reciprocity among the [s]tates” in
registration, certification, and background checks of sports agents seeking to represent student
athletes who are or may be eligible to participate in intercollegiate sports. Prefatory Note to
UNIF. ATHLETE AGENTS ACT, 7 U.L.A. 771-72 (2005).
24 See, e.g., NFL Players Association, Agent Regulations: NFLPA Regulations Governing
Contract
Advisors
(as
amended
through
November
2003),
available
at
http://www.nflpa.org/Agents/main.asp?subPage=Agent+Regulations.
25 Although the NCAA may not directly regulate athlete agents, as it lacks jurisdiction, it
prohibits student athletes from contracting with or accepting gifts from agents, at the cost of the
students’ eligibility. The National Collegiate Athletic Association, 2005-06 Division I Manual,
Operating Bylaw 12.3.1 states:
12.3.1 General Rule. An individual shall be ineligible for participation in an
intercollegiate sport if he or she ever has agreed (orally or in writing) to be represented
by an agent for the purpose of marketing his or her athletics ability or reputation in that
sport. Further, an agency contract not specifically limited in writing to a sport or
particular sports shall be deemed applicable to all sports, and the individual shall be
ineligible to participate in any sport.
12.3.1.1 Representation for Future Negotiations. An individual shall be
ineligible per Bylaw 12.3.1 if he or she enters into a verbal or written agreement
with an agent for representation in future professional sports negotiations that are
to take place after the individual has completed his or her eligibility in that sport.
12.3.1.2 Benefits from Prospective Agents. An individual shall be ineligible per
Bylaw 12.3.1 if he or she (or his or her relatives or friends) accepts transportation
or other benefits from: (Revised: 1/14/97)
(a) Any person who represents any individual in the marketing of his or her
athletics ability. The receipt of such expenses constitutes compensation
based on athletics skill and is an extra benefit not available to the student
body in general; or
(b) An agent, even if the agent has indicated that he or she has no interest in
representing the student-athlete in the marketing of his or her athletics
ability or reputation and does not represent individuals in the studentathlete’s sport. (Adopted: 1/14/97)
NAT’L COLLEGIATE ATHLETIC ASS’N, 2005-06 DIVISION I MANUAL art. 12.3.1, available at
http://www.ncaa.org/library/membership/division_i_manual/2005-06/2005-06_d1_manual.pdf
[hereinafter NCAA DIVISION I MANUAL].
26 See Diane Sudia & Rob Remis, Athlete Agent Legislation in the New Millennium: State
Statutes and the Uniform Athlete Agents Act, 11 SETON HALL J. SPORT L. 263, 268 (2001)
(explaining that regulation of agent activities has taken the form of twenty-eight athlete agent
state statutes across the country as well as regulation by the NCAA); see also Lock, supra note 8,
at 328 (claiming that the NCAA eligibility rules and the existing state statutes are “designed to
regulate the solicitation by agents of student athletes with remaining collegiate eligibility,” and
that, in addition, “players associations have, since the early 1980’s, attempted to regulate agents
through codes of conduct”).
27 See, e.g., Lock, supra note 8, at 328 (“The current schemes . . . have, because of policing
problems and an unwillingness on the part of regulatory bodies to commit adequate resources to
the enforcement of the rules, been ineffective.”); Nichols, supra note 9, at 24:
Although agent rules and regulatory standards may exist within a particular player
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The lack of effective industry-wide agent regulation has resulted in
several incidences of “agent abuse.”28 Perhaps the most notorious agent
scandal involved agent Norby Walters and his associate, Lloyd Bloom,
both non-attorneys.29 With cash payments, cars, gifts, drugs, and
“sexual companionship,” Walters and Bloom induced undergraduate
football players to sign agency contracts in violation of NCAA rules.30
Consequently, fourteen athletes lost their collegiate eligibility, as
NCAA bylaws prohibit athletes from entering into verbal or written
agreements with agents for future representation in professional
sports.31 Walters and Bloom were convicted of RICO violations, mail
fraud, conspiracy to commit mail fraud, wire fraud, and extortion before
the decision was reversed on procedural grounds.32
Incidences of fraudulent and unethical agent behavior are not
limited to student athlete recruitment. For instance, agent Richard
Sorkin, although he had no prior experience in money management or
contract negotiations, handled all his clients’ financial affairs.33
Sorkin’s stock market losses of $271,000 and gambling losses of
$626,000 included at least $231,000 belonging to his clients.34 Sorkin
was not an attorney-agent, but rather, was a former sports writer.35
In addition to mismanaging athletes’ income, agents also engage in
fraudulent advisement in contract negotiations. In Burrow v. Probus
Management, Inc.36 a district judge determined that an agent’s advice to
a football player to accept a lump sum bonus was not in the best
interests of the player-client, but rather, benefited the agent himself in
his plan to procure immediate funds for his own enrichment.37
Recently, in a stunning breach of fiduciary duty, agent William “Tank”
Black was sentenced to five years in a federal prison for a fraudulent
association’s certification process, the players associations do not have the resources
(like state bar associations) to conduct comprehensive moral character investigations or
background checks. Finally, player associations have very weak grievance procedures
with which a player may seek to discipline a wayward agent.
28 Nahrwold, supra note 4, at 433.
29 Id. at 434-35 (citing The Agents Scandal of 1987: A Chronology, ATLANTA JOURNALCONSTITUTION, Dec. 27, 1987, at D27).
30 Id. at 434 n.19 (citing United States v. Walters, 711 F. Supp. 1435 (N.D. Ill. 1989)).
31 Id.; see also NCAA DIVISION I MANUAL, supra note 25, at art. 12.3.1.
32 See United States v. Walters, 913 F.2d 388 (7th Cir. 1990) (reversing conviction as to one
defendant on the ground that trial court erred in failing to instruct that defendant that he had taken
action on the advice of counsel, and as to other defendant on the ground that trial court erred in
failing to sever the trial).
33 Brian Burke, Negotiations Involving Agents and General Managers in the NHL, 4 MARQ.
SPORTS L.J. 35 app. D at 50. (1993).
34 Id.; see also People v. Sorkin, No. 46429 (N.Y. Crim. Ct. Nov. 28, 1977), sentence aff’d
mem., 407 N.Y.S.2d 772 (N.Y. App. Div. 1978).
35 See Burke, supra note 33, app. D at 50.
36 Civ. No. 16840 (N.D. Ga. Aug. 9, 1973) (unpublished order), cited in Burke, supra note
33, app. D at 50.
37 See Burke, supra note 33, app. D at 50.
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investment scheme that cost his clients, almost all NFL players,
upwards of twelve million dollars.38 Black, a former football coach,
was not an attorney, nor did he have any business investment
experience before becoming an agent.39
B.
The Competitive Advantage and Proposed Solutions
As a result of this ethical divergence in which non-attorney agents
can exploit the lack of standardized ethical regulations for agents,40 a
competitive advantage emerged for non-attorney agents over attorneyagents.41
All attorneys are subject to a code of ethical conduct, based upon
the American Bar Association’s (ABA) Model Rules of Professional
Conduct (Model Rules)42 in most states, which are enforced by state
courts or bar associations that have adopted the Model Rules in whole
or in part.43 Therefore, these rules also bind lawyers who happen to be
acting as sports agents.44 Specifically, the Model Rules include
38 See Mike Fish, A Black Eye: Headed to Prison, Black Should Be a Lesson to Agents,
SPORTSILLUSTRATED.COM, May 7, 2002, http://sportsillustrated.cnn.com/inside_game/
mike_fish/news/2002/05/07/tank_black/index.html. Black received the five-year federal sentence
on top of the seven-year state sentence he owed for money laundering in Michigan. Id.
39 See id.
40 See Doman, supra note 4, at 38 (stating that “a state bar may hold an attorney accountable
for actions that are unethical under lawyer professional responsibility rules, but are otherwise
unpunished in the sports industry”).
41 See id. at 38-39. In addition to ethical rules requiring ethical practices, a competitive
advantage also results from attorneys’ enforced adherence to solicitation and conflict of interest
rules, which “control their business activities and are designed to protect the public from attorney
malfeasance.” Nichols, supra note 9, at 25.
For instance, lawyers, unlike agents, are prohibited from actively soliciting clients.
Solicitation of clients can result in severe monetary and disciplinary sanctions that can
include suspension or loss of the license to practice law. Lawyers cannot charge
excessive fees for service provided. Lawyers must avoid conflicts of interest. In other
words, it is extremely dangerous for lawyers to represent multiple clients that may
engage in the same business. Thus, a lawyer representing two or more professional
athletes competing on the same team for the same job is, as defined by the professional
code of ethics, unable to zealously represent each of those clients in their respective
quests to secure that same job. Absent that lawyer’s full disclosure of this conflict to
each athlete, and the acquisition of an executed express waiver and acknowledgment of
said conflict from each athlete, the representative attorney is subject to severe
discipline by his or her state bar association.
Id. (citations omitted).
42 MODEL RULES OF PROF’L CONDUCT (2004).
43 See Daniel L. Shneidman, Selected Issues of Client Representation by “Sports” Lawyers
Under the Model Rules of Professional Conduct, 4 MARQ. SPORTS L.J. 129, 129 (1993).
44 Shneidman vehemently disputes the argument that the Model Rules can be differentiated
for attorneys acting as sports agents:
The Model Rules of Professional Conduct do separate non-lawyers from lawyers for a
valid purpose. But I do not believe that it is merely academic to be licensed to practice
a profession. That privilege comes with responsibilities. One of these responsibilities
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requirements regarding disclosure,45 prohibitions on dishonest,
fraudulent, deceitful, or misrepresentative conduct,46 and call for a
certain level of professional competence in a lawyer’s representation of
her client.47
Thus, attorneys, rather than non-attorneys, are better suited to the
demands and practice of athlete representation because of their legal
education, drafting and negotiation expertise, ethical guidelines, and
malpractice insurance.48 Therein lies the problem—substantial public
policy reasons support selection of an attorney as an athlete’s first
choice when seeking an athlete agent; however, attorneys are at a
competitive disadvantage to the lesser-equipped non-attorney agents
when it comes to signing athletes. In response, scholars and
practitioners have advanced several proposals to level the playing field
between attorney-agents and non-attorney agents.
1.
Relaxation/Amendment of ABA Rules
One scholar has contended that, in order to remain competitive, the
attorney-agent must technically compromise certain Model Rules.49
Thus, one solution to closing the competitive divide suggests a
relaxation of the Model Rules as applied to attorneys acting as athlete
agents.50
In this vein, another commentator argued for actual
amendment of conflicts of interest rules to accommodate attorneyagents.51 Generally, attorneys may not represent a client if that
is to know the rules of professional conduct.
Furthermore, I respectfully differ with the statement that, “Ethics get in the way of
being a sports agent.” From my experience of being a lawyer and dealing with
professional conduct or misconduct, if being a lawyer is being a sports agent or sports
lawyer, and the focus is exclusively money, you are doomed. Such a lawyer or agent
will get into trouble because he or she will take shortcuts during their representation.
And there will never be enough money to satisfy them.
Id. at 130-31.
45 See MODEL RULES OF PROF’L CONDUCT R. 1.4 (2004).
46 See Id. at 8.4(c).
47 See Id. at 1.1.
48 See, e.g., Caudill, supra note 3, at 37 (citing Kohn, supra note 4, at 15); Doman, supra note
4, at 38 (“Since attorneys have accountability to these ethical guidelines . . . attorneys are more
qualified representatives for professional athletes than a typical layperson.”).
49 See Doman, supra note 4, at 39 (arguing that conflicts of interest and client solicitation are
inherent and integral to an attorney-agent’s practice, although they are technical violations of the
Model Rules); see also MODEL RULES OF PROF’L CONDUCT R. 1.7-1.8, R. 7.1-7.3.
50 See Doman, supra note 4, at 38-39. Because Doman maintains that “the mere practice of
being an athlete agent virtually mandates certain conduct by attorney-agents that is questionably
permissible under the ABA Model Rules,” he advocates that “[t]he ABA and state bar
associations must recognize the differences between the legal practices the rules intend to cover,
versus the realities of the sports business which might seem at odds with their current literal
interpretation.” Id. at 45, 65.
51 See Jamie E. Brown, Note, The Battle the Fans Never See: Conflicts of Interest for Sports
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representation will be directly adverse to another client or if the
attorney’s responsibilities or personal interest will limit effective
representation.52 This rule may create problems for sports agents who
seek to represent multiple clients. An attorney-agent, however, may
avoid this problem by obtaining informed consent from her clients.53
This author proposed a new Comment, applying only to attorney-agents,
to Model Rule 1.7, which governs conflicts of interest.54 He argued that
this would standardize the procedure for obtaining informed, actual
consent when an athlete waives a conflict of interest.55
Lawyers, 7 GEO. J. LEGAL ETHICS 813, 814 (1994). Brown continues:
In light of the facts that the Model Rules are currently inadequate to address the unique
needs of young athlete-clients and that the existing regulatory schemes have failed
miserably to appropriately define forbidden conflicts of interest or provide enforcement
mechanisms within the sports industry, there are two reforms which should be invoked:
greater implementation and standardization of the consent requirement and more
education of athletes. These reforms can be accomplished through expanding the
Model Rules to include some specific guidelines for sports lawyers acting as agents.
Id. at 834. In support of his contention, Brown notes that retired Judge Stanley Sporkin of the
United States District Court for the District of Columbia has argued for the need for provisions
within the Model Rules applying to various legal specialties. Id. at 834 n.119 (“‘These existing
ethics codes merely espouse certain general principles that apply to all lawyers . . . . They do not
provide enough fact-specific provisions that apply directly to many of the various legal
specialties.’”) (quoting Stanley Sporkin, The Need for Separate Codes of Professional Conduct
for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 149 (1993)).
52 Rule 1.7 “Conflict of Interest: Current Clients” states:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph
(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
MODEL RULES OF PROF’L CONDUCT R. 1.7.
53 Id.
54 See Brown, supra note 51, at 835.
55 See id. Brown’s proposed Comment would
require the attorney-agent to obtain a new client’s signature on a letter which contains
the following: 1) enough detailed information of all potential conflicts of interest for
the client to make an informed decision regarding his choice of representation; 2)
acknowledgement of the athlete-client’s consultation with independent counsel in
consenting to the conflict; 3) the procedure to follow if a party later withdraws consent;
4) a statement of the attorney’s loyalty to the client’s interest; 5) and the signature of
the client. This rule also would require an attorney to obtain current clients’ signatures
on similar letters evidencing consent every time the attorney obtains a new athlete-
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However, regardless of the probable benefits of such standardized
procedures within the Model Rules, particularly those governing
attorneys practicing as athlete agents, the ABA is unlikely to implement
such specific amendments to the Model Rules.56 In the scope of all
licensed attorneys, very few attorneys actually practice as athlete agents;
hence, the ABA has little incentive to adjust its rules.57 Furthermore,
because sports representation is a very small practice area, the ABA is,
arguably, less qualified to implement specific and complex attorney
athlete agent regulations than other organizations with more expertise in
the industry.58
2.
The Two-Hat Theory
The “two-hat” theory argues that when an attorney acts as an agent
and not an attorney, she should not be subject to the legal rules of
professional conduct.59 The Model Rules, however, determine that
attorneys who engage in other business practices nevertheless remain
held to the ethical standards promulgated by the associations that police
their bar memberships.60 Licensed members of the bar may not freely
client whose representation presents a potential conflict of interest.
Id.
56 See Doman, supra note 4, at 68 (stating that “[u]nfortunately, we must assume the ABA
will not consider redefining their rules for specifically investigating the actions of attorneyagents”).
57 See id. at 74 (commenting that it is unlikely that “the ABA [will] alter[] its guidelines for
the select few attorney-agents”).
58 See id. at 68 (“The players’ unions . . . are more qualified than the ABA to make such
determinations.”).
59 See Caudill, supra note 3, at 42 (citing Kenneth J. Abdo & Jack P. Sahl, A Professional
Responsibility Primer for Today’s Entertainment Lawyer, 18 ENT. & SPORTS LAW. 3, 6 (2000));
Paul T. Dee, Ethical Aspects of Representing Professional Athletes, 3 MARQ. SPORTS L.J. 111,
112 (1992) (questioning whether the ethical code of the legal profession applies when the
attorney-agent is practicing another profession); Symposium, supra note 9, at 780 (Patrick
Connors, Assistant Professor of Law, Albany Law School, stating that a previous panel in which
he participated included a lawyer, also a sports agent, who argued, “‘I do not follow the Code of
Professional Responsibility because I am not acting as a lawyer’”); see also Brown, supra note
51, at 816, 835 n.120. Brown notes that “[a]ttorneys acting as athlete-agents often claim that they
are not subject to the Model Rules when acting in their capacity of ‘agent.’” Id. at 816. Brown
explains that
[these] attorney-agents defend their deviation from the requirements of the Model
Rules by claiming that they are engaged in a dual professional entity in which their
actions as an agent are not subject to the requirements of the Model Rules. However,
attorneys who are involved in dual professions are still bound by the requirements of
legal ethics.
Id. at 835 n.120 (citing In re Dwight, 573 P.2d 481, 484 (Ariz. 1978) (holding that an attorney is
bound by the ethical requirements of the legal profession even when acting as a financial
advisor)).
60 See Fraley & Harwell, supra note 1, at 38 & n.89 (ABA Comm. on Ethics and Professional
Responsibility, Formal Op. 328 (1972) requires lawyers to comply with all provisions of the Code
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disassociate their ethical duties merely because they happen to be
engaging in a non-legal undertaking.61 Thus, it seems tenuous to
advance that attorneys may “wear different hats” at will, without the
Model Rules governing their activities. Furthermore, many attorneys
acting as attorney-agents most likely do not always take off their
“attorney-hat” when they are holding themselves out as an athlete agent.
Rather, the “attorney-hat” is likely a useful advertisement in the
competition to acquire player-clients.62 Such artificial divisions in
obligations dependent upon what kind of client the attorney represents
are inconsistent with the broad reach of the Model Rules, and do not
easily survive academic or judicial scrutiny.63
For example, the New York State Appellate Division came to this
specific conclusion in In re Horak,64 in which an attorney defaulted on
loans he took out on behalf of his client.65 In representing the
government of St. Vincent, which was bidding for entry into the
Olympics at the time, the attorney argued that he was acting not as an
attorney, but as a sports agent.66 The court disagreed and found that the
attorney held himself out as an “Attorney-at-Law,” and was thus subject
to the corresponding regulations.67
3.
Increased Regulation of Non-Attorney Agents
A third solution, and the most prevalent, suggests stricter
regulations of athlete agents by player associations,68 or standardized
of Professional Responsibility while engaged in a “law related” occupation). Fraley and Harwell
note that, “by retaining his bar membership, the ‘agent’ is engaged in a ‘law related’ occupation.”
Id. at 37-38.
61 See Doman, supra note 4, at 44.
62 See Fraley and Harwell, supra note 1, at 37 (contending that a “sports lawyer may attempt
to avoid violation of . . . rules by segregating his roles as ‘agent’ and ‘lawyer.’ . . . While this may
appear to be acceptable, the ‘agent’ is more likely to discuss openly the general advantages of his
experience and skills as a lawyer.”).
63 See Shneidman, supra note 43, at 129:
An attorney’s obligation under the Model Rules of Professional Conduct do not differ
regardless of the industry or the client with whom you serve. However, some of the
factual situations do require different substantive knowledge and discretion. I will not
accept, nor do I agree with the statement that the relationship between an agent and his
or her client does not fall within the traditional Model Rules. That type of statement
lends itself to the artificial creation of differences between lawyers and a belief that if
there is a proscription in the Model Rules, it does not apply to all of those in the legal
field.
64 647 N.Y.S.2d 20 (App. Div. 1996).
65 Id.
66 Doman, supra note 4, at 41-42 (citing Horak, 647 N.Y.S.2d at 24).
67 Id. (citing Horak, 647 N.Y.S.2d at 24).
68 See Symposium, supra note 9, at 754 (maintaining that “the [NFL Players’ Association]
does more than any of the other player associations, to regulate agents, and they do very, very,
very little” (statement of John Genzale)).
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state or federal legislation.69 Certain commentators focus on player
associations and contend that they should revise their rules in order to
more effectively regulate agents and even out the competitive playing
field for attorney-agents.70 This Note proposes that SPARTA responds
effectively, although not explicitly, to this call for equalized regulation
by implementing attorney-like regulations for all agents in recruitment
of student athletes.
II. THE SPORTS AGENT RESPONSIBILITY AND TRUST ACT (SPARTA)
During the past decade, the wide world of sports has expanded to
include players who are far too young to be professionals in any other
occupation. Many of these players even bypass the typical preprofessional arena—college—to enter professional sports leagues and
organizations directly. Those likewise-talented high school athletes
who do attend college, however, face agents fiercely competing to sign
the next Kobe Bryant71 or Maurice Clarett72 to a professional contract.
69 Some commentators argue that, before administrative or legislative regulation, the agent
industry must regulate itself. See id. at 753 (positing that “agents ought to regulate themselves
before the courts do or Congress does” (statement of John Genzale)).
70 See Doman, supra note 4, at 72; see also Nichols, supra note 9, at 26 (arguing for guidance
in sports agency from attorney rules):
The injection of a disinterested, non-discriminating lawyer’s code of professional
ethics to guide those representing professional athletes will, at the very least, create a
cadre of athlete representatives (lawyers) charged with the professional responsibility
of adherence to not only the NCAA regulations governing the conduct of the studentathletes but, more importantly, to the rules of professional conduct by which all
lawyers must abide.
Id.
71 In the spring of his senior year of high school, Kobe Bryant held a press conference in his
high school gymnasium where he publicly declared his intent to bypass college and take his
talents to the NBA. See David Nakamura, Another High School Star Opts for NBA, WASH. POST,
Apr. 30, 1996, at A1; Kris Schwartz, Bryant Makes Transformation from Phenom to Star,
ESPN.com, http://espn.go.com/classic/biography/s/Bryant_Kobe.html (last visited Jan. 15, 2006).
In addition to Kobe Bryant, once the most famous, and now perhaps the most notorious, high
school athlete who skipped college to play professionally, Kevin Garnett, LeBron James, and
numerous lesser-known athletes have taken the same route directly from high school to the
professional leagues.
See, e.g., Amy Shipley, Cavaliers’ James Does His Stuff;
NBA’s No. 1 Pick, at 18, Shows He’s No Ordinary Rookie in Professional Debut, WASH. POST,
July 9, 2003, at D01; Sam Smith, Garnett’s NBA Potential Rates No More Than a Big ?, CHI.
TRIB., Jan. 15, 1995, at C10.
72 As a freshman starting running back at Ohio State University in 2002, Maurice Clarett led
the Buckeyes to an undefeated season, “scoring the winning touchdown in a double-overtime
victory in the 2003 Fiesta Bowl to claim the national championship.” Clarett v. Nat’l Football
League, 369 F.3d 124, 125-26 (2d Cir. 2004). In his sophomore year, Clarett signed with a sports
agent, suffered suspension from the NCAA, and sought eligibility for the NFL draft. Id. at 126.
However, the NFL prohibits players from entering the draft before three full seasons have passed
since that player’s high school graduation, and Clarett was one season short. Id. Clarett sued the
NFL, alleging that the draft eligibility rules violated antitrust laws. Id. The Court of Appeals for
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This competition leads to a free-for-all, which, in turn, can lead to
unscrupulous practices by agents. Unfortunately, these practices can
have disastrous consequences for the athletes and their schools.
After national efforts to enact uniform agent-regulating
legislation,73 the House Committee on Energy and Commerce submitted
a report on a bill regarding sports agents on October 7, 2002.74 The
report stated the pressing need for federal legislation to combat
unscrupulous agents’ unethical practices to obtain the skyrocketing fees
that accompany representation of a professional athlete.75 The report
maintained that some agents are willingly unethical because of the
limited or non-existent consequences agents face for their dishonest
behavior.76 The Committee seemed most concerned with the fact that,
even though agents faced little to no punishment for their actions, a
student athlete who enters into an agency contract generally forfeits
eligibility to play at the collegiate level and loses his scholarship.77
Furthermore, the university may also face sanctions if ineligible athletes
play in university contests.78
In the Senate, Senator Ron Wyden of Oregon urged consideration
of the bill that would become SPARTA to address the loopholes created
for unscrupulous sports agents by the extreme lack of uniformity among
the states regarding regulation of agent behavior.79 Senator Wyden
explained that the necessity for a baseline of uniform federal legislation
arose from the practice of agents targeting traveling student athletes,
the Second Circuit disagreed, reversing a district court judgment that ordered Clarett eligible to
enter the draft. Id. at 125.
73 The National Conference of Commissioners on Uniform State Laws promulgated the
Uniform Athlete Agents Act (UAAA) in 2000, providing for uniformity and reciprocity among
the states in registration of athlete agents, certification of athlete agents, specific contract terms
which must be included in agency contracts, requirements of notice to educational institutions,
criminal and administrative penalties for violations by athlete agents, and a civil cause of action
for a damaged educational institution. Prefatory Note to UNIF. ATHLETE AGENTS ACT, 7 U.L.A.
771 (2005). The UAAA is not federal legislation, however. Thus, the states could choose
whether to enact it at their discretion. As of January 23, 2006, thirty-three states plus the District
of Columbia and the U.S. Virgin Islands had enacted the Uniform Athlete Agents Act, either in
full or in part. See NCAA.org, supra note 23.
74 H.R. REP. NO. 107-725 (2002).
75 See id. at 4.
This potentially turns the agent business into the Wild Wild West . . . . There are so
many people in the business that just want to get in that they’re going to give kids bad
information in order to sign them. Every year, 300 players are told they are going in
the first round of the NBA draft and there are only [twenty-nine] picks.
Rovell, supra note 8 (quoting agent Mark Bartelstein, who claims to never have signed an
underclassman in basketball).
76 H.R. REP. NO. 107-725, at 4 (2002).
77 See id. See also NCAA DIVISION I MANUAL, supra note 25, art. 12.3.1.
78 See H.R. REP. NO. 107-725, at 4; see also NCAA DIVISION I MANUAL, supra note 25, art.
14.11.1 (discussing ineligibility and the obligation of NCAA member institutions to withhold
ineligible student athletes from all intercollegiate competition).
79 149 CONG. REC. S7237-01, 7244 (statement of Sen. Ron Wyden of Oregon).
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which had been facilitated by highly inconsistent state laws and
disparate legal protections for student athletes across the country.80
A month earlier, in a May 15, 2003, hearing before the House
Subcommittee on Commercial and Administrative Law, Congressman
Tom Osborne of Nebraska, along with Congressman Bart Gordon of
Tennessee, the author of House Bill 361, sponsored the bill to become
SPARTA before the House.81 Congressman Osborne82 detailed several
reasons why the federal government should adopt such legislation
regulating sports agents.83 First, Osborne emphasized the huge financial
incentives for athletes and agents in the pursuit of professional sports.84
Second, Osborne, using the NFL as an example, detailed the cutthroat
competition among agents for athletes. Osborne explained that
although the NFL certifies about 1,200 agents a year, certification is
only required to represent a player already in the NFL.85 For agents
looking to represent an athlete coming out of college, there is no
certification process.86 Competition arises because, of the 1,200 agents
certified, about three-fourths do not represent any player in the NFL.87
Therefore, as Osborne explained, the competition for access to athletes
80
Id.
81
82
Id. Senator Wyden explained the problem:
[T]raveling student athletes may be big targets for opportunistic sports agents—and
due to highly inconsistent state laws on the subject, the legal protections that an athlete
might enjoy in the state where the college is located don’t necessarily apply
elsewhere. . . . A majority of States have enacted statutes to address unprincipled
behavior by sports agents, but the standards vary from State to State and some states
don’t have any at all. . . . Every time that [an] athlete crosses into another State a
different set of rules apply. And if one State’s laws on the subject are particularly
weak, that is where shady sports agents will try to contact their targets.
That is why there ought to be a single, nationwide standard. The bill I am introducing
today would establish a uniform baseline, enforceable by the Federal Trade
Commission, that would supplement but not replace existing state laws.
House SPARTA Hearing (2003), supra note 2.
Chris Cannon, Chairman of the Subcommittee, introduced Congressman Osborne as
follows:
From 1972 until 1997, Representative Osborne served as the head football coach of the
University of Nebraska Cornhuskers. [He] retired as the most winning active football
coach in the NCAA Division 1-A. Prior to retiring, Congressman Osborne led the
Huskers to three national championships in 1994, 1995, and 1997, thereby becoming a
household name. . . . Following graduation [from college], he played three seasons in
the National Football League.
Id. at 3 (statement of Chris Cannon, Chairman, House Subcomm. on Commercial and
Administrative Law).
83 See id. at 4-7.
84 See id. at 4; see also supra note 2 and accompanying text.
85 House SPARTA Hearing (2003), supra note 2, at 4.
86 See id. (Osborne stated, “[a]ll you have to do is say you are an agent, and if you say you are
one, you are one.”).
87 See id. At the beginning of the 2003 season, there were 1,696 active players in the NFL.
Pat Kirwan, Class of 2003 Off to Strong Start, NFL.com, Sept. 16, 2003,
http://www.nfl.com/news/story/6645400.
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is tremendous.88 The lack of a certification process coupled with the
intense competition for burgeoning athletes, Osborne stated, results in
the least experienced and most unscrupulous agents vying for these
student athletes, often employing extremely unethical strategies to sign
the players before their competitors do.89
Osborne detailed many of the practices agents exploit, including
the completely false promise that the athlete will be a higher draft pick
if he signs with the agent.90 Another problem, Osborne reported, is that
many agents promise to handle the athlete’s contracts, taxes, and
endorsements, but, unfortunately, many athletes are one career-ending
injury away from retirement. If an athlete has signed with an
incompetent or unscrupulous agent, he may retire at a young age and
find that he has very little actual money to show for the millions that he
has earned in salary.91 In SPARTA, Osborne advocated a “minimum
federal backstop” for regulating agent conduct, which would
simultaneously respect and supplement existing state laws.92
President George W. Bush signed SPARTA into law on September
24, 2004.93 SPARTA defines the term “athlete agent” as a person who
contracts with a student athlete, or who recruits a student athlete to enter
into a contract with the agent.94 For the purposes of the statute,
however, an agent does not include family members or legal counsel
acting for purposes other than sports representation.95
SPARTA prohibits unfair and deceptive agent acts and practices,
88
89
House SPARTA Hearing (2003), supra note 2, at 4.
Id. Osborne claimed that the “illegal inducements” offered range from money, cars,
clothes, and vacations to even drugs, women, “and the whole nine yards.” Id. Often, agents will
offer the student a contract which obligates the athlete, but the agent will claim to “post date” it so
that it “doesn’t mean anything, [and] it is not going to affect your eligibility.” Id. But, as
Osborne pointed out, “when you sign that contract, even when it is post dated, your eligibility is
gone.” Id.
90 See id. at 4-5.
91 See id at 5. For an acute example of athletes’ loss of millions of dollars to an unscrupulous
agent, see discussion of William “Tank” Black, supra note 38 and accompanying text.
92 House SPARTA Hearing (2003), supra note 2, at 7.
93 Sports Agent Responsibility and Trust Act, 15 U.S.C.S. §§ 7801-7807 (LexisNexis 2005).
Before it was codified, the statute stated that it was “[a]n Act [t]o designate certain conduct by
sports agents relating to the signing of contracts with student athletes as unfair and deceptive acts
or practices to be regulated by the Federal Trade Commission.” Pub. L. No. 108-304, 118 Stat.
1125 (2004).
94 15 U.S.C.S. § 7801(2). The definition of “athlete agent” reads:
An individual who enters into an agency contract with a student athlete, or directly or
indirectly recruits or solicits a student athlete to enter into an agency contract, and does
not include a spouse, parent, sibling, grandparent, or guardian of such student athlete,
any legal counsel for purposes other than that of representative agency, or an
individual acting solely on behalf of a professional sports team or professional sports
organization.
Id. (emphasis added).
95 Id.
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and authorizes the FTC to regulate this conduct.96 SPARTA makes it
unlawful for agents to directly or indirectly recruit a student athlete by
giving false or misleading information or promises, or by giving the
athlete gifts or monetary compensation.97 The statute also mandates
certain disclosure requirements for athlete-agents when signing student
athletes.98 The disclosure must contain a warning to the student athlete
that signing a representation contract, even a post-dated contract,99 with
the agent may compromise his or her eligibility.100 Furthermore,
SPARTA requires both the student and the agent to inform the athletic
director at the student’s school within seventy-two hours after entering
into the contract.101 Finally, this disclosure requirement is separate from
and in addition to any disclosure that may be required under state law,
96
97
Id. § 7803(a).
Id. § 7802(a). Section 7802(a) outlines the prohibited conduct, making it “unlawful for an
athlete agent to—”
(1) directly or indirectly recruit or solicit a student athlete to enter into an agency
contract, by—
(A) giving any false or misleading information or making a false promise or
representation; or
(B) providing anything of value to a student athlete or anyone associated with the
student athlete before the student athlete enters into an agency contract, including
any consideration in the form of a loan, or acting in the capacity of a guarantor or
co-guarantor for any debt;
(2) enter into an agency contract with a student athlete without providing the student
athlete with the disclosure document described in subsection (b) of this section; or
(3) predate or postdate an agency contract.
Id.
98 Section 7802(b) requires disclosure by athlete agents to student athletes:
(1) In general.—In conjunction with the entering into of an agency contract, an athlete
agent shall provide to the student athlete . . . a disclosure document that meets the
requirements of the subsection. Such disclosure document is separate from and in
addition to any disclosure which may be required under State law.
(2) Signature of student athlete.—The disclosure document must be signed by the
student athlete . . . prior to entering into the agency contract.
(3) Required language.—The disclosure document must contain, in close proximity to
the signature of the student athlete, or . . . the signature of such student athlete’s parent
or legal guardian, a conspicuous notice in boldface type stating: “Warning to Student
Athlete: If you agree orally or in writing to be represented by an agent now or in the
future you may lose your eligibility to compete as a student athlete in your sport.
Within 72 hours after entering into this contract or before the next athletic even in
which you are eligible to participate, whichever occurs first, both you and the agent by
whom you are agreeing to be represented must notify the athletic director of the
educational institution at which you are enrolled . . . that you have entered into an
agency contract.”
Id. § 7802(b).
99 See Symposium, supra note 9, at 757 (Rachel Newman-Baker, Assistant Director of Agent,
Gambling and Amateurism Activities, National Collegiate Athletic Association, stating that,
under the NCAA eligibility rules, “you cannot be a freshman in college and say, ‘Hey, I can’t
have an agent right now because I am just a freshman—I still have three years of eligibility left—
but you are my guy when I get done.’”).
100 15 U.S.C.S. § 7802(b)(3).
101 Id.
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and the student, or the student’s parent or legal guardian, must sign the
separate disclosure document prior to entering into the agency contract
that may compromise his or her eligibility.102
The remainder of the statute imposes regulations governing
enforcement of the Act and remedies for its violation. A violation
amounts to an unfair or deceptive act or practice proscribed by the FTC
Act, and is subject to enforcement by the Commission.103 The statute
also gives the states jurisdiction to bring a civil action in federal district
court, on behalf of the residents of the state, to obtain an injunction,
enforce compliance with the statute, or obtain damages, restitution, or
other compensation for its residents, subject to the right of the
Commission to intervene.104 Educational institutions also have a right
of action against athlete agents for damages caused to them by the
agent’s violation.105 In the final section of the Act, SPARTA advocates
102 Id. § 7802(b)(1)-(2). Scott Boras, President and Owner of the Scott Boras Corporation and
Impact Sports Marketing and Agency, also testified on behalf of the bill and regarding its
disclosure provisions. House SPARTA Hearing (2003), supra note 2, at 10-13. Congressman
Chris Cannon, Chairman of the Subcommittee, noted that Boras counts among his clients “Greg
Maddox, Kevin Brown, Barry Bonds, Alex Rodriguez, and Kevin Millwood.” Id. at 3 (statement
of Chris Cannon, Chairman, House Subcomm. on Commercial and Admin. Law). Cannon stated
that Boras is a leader in the sports representation field, “negotiating the first [fifty] million, 100
million, and $200 million [sic] contracts in major league baseball history.” Id. Boras’s firm
“provides legal counseling to amateur athletes . . . [and] legal athlete representation and contract
negotiations services for numerous professional baseball players.” Id. Boras asserted the
importance of informed student athlete decisions, with enough information about the risks and
realities of professional sports and sports agency. Id. at 10 (statement of Scott Boras). Boras
suggested that, once an athlete is informed, he will be less likely to believe and sign with an agent
who is making false promises, and who might lead the student to educational, professional, and
financial ruin. Id.
103 See 15 U.S.C.S. § 7803(a). Section 7803(a) states that “[a] violation of this Act shall be
treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under
section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).” Id. §
7803(a).
104 Section 7804(a)(1) states:
In any case in which the attorney general of a State has reason to believe that an
interest of the residents of that State has been or is threatened or adversely affected by
the engagement of any athlete agent in a practice that violates section [7802] of this
Act, the State may bring a civil action on behalf of the residents of the State in a
district court of the United States of appropriate jurisdiction to—
(A) enjoin that practice;
(B) enforce compliance with this Act; or
(C) obtain damage, restitution, or other compensation on behalf of residents of the
State.
Id. § 7804(a)(1).
105 Section 7805 governs the protection afforded an educational institution by the act and the
civil remedy granted:
(a) Notice required.—Within 72 hours after entering into an agency contract or before
the next athletic event in which the student athlete may participate, whichever occurs
first, the athlete agent and the student athlete shall each inform the athletic director of
the educational institution at which the student athlete is enrolled, or other individual
responsible for athletic programs at such educational institution, that the student athlete
has entered into an agency contract, and the athlete agent shall provide the athletic
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Congress’s position that the states should enact the Uniform Athlete
Agents Act, particularly its provisions relating to registration,
contractual forms, cancellation rights, disclosure requirements, and
reciprocity among the states.106
III. COMPARISON BETWEEN SPARTA AND THE MODEL RULES OF
PROFESSIONAL CONDUCT
A.
The Model Rules of Professional Conduct
The American Bar Association has promulgated the Model
Rules,107 an ethical code enforced by state courts or bar associations that
have adopted the Model Rules in whole or part.108 Although the states
have each customized the Model Rules with their own additions and
restrictions,109 the basic standards to which lawyers are held remain
fairly constant. From the ABA’s adoption of the original Canons of
Ethics on August 27, 1908, to the most recent amendments to the Model
Rules, adopted in 2003, the ABA has strived to ensure high standards of
professional competence and ethical conduct.110
These rules also bind lawyers who happen to be acting as sports
director with notice in writing of such a contract.
(b) Civil remedy.—
(1) In general.—An educational institution has a right of action against an athlete
agent for damages caused by a violation of this Act.
(2) Damages.—Damages of an educational institution may include and are
limited to actual losses and expenses incurred because, as a result of the conduct
of the athlete agent, the educational institution was injured by a violation of this
Act or was penalized, disqualified, or suspended from participation in athletics by
a national association for the promotion and regulation of athletics, by an athletic
conference, or by reasonable self-imposed disciplinary action taken to mitigate
actions likely to be imposed by such an association or conference.
Id. § 7805(a), (b)(1)-(2).
106 Section 7807 states the “sense of Congress”:
It is the sense of Congress that States should enact the Uniform Athlete Agents Act of
2000 drafted by the National Conference of Commissioners on Uniform State Laws, to
protect student athletes and the integrity of amateur sports from unscrupulous sports
agents. In particular, it is the sense of Congress that States should enact the provisions
relating to the registration of sports agents, the required form of contract, the right of
the student athlete to cancel an agency contract, the disclosure requirements relating to
record maintenance, reporting, renewal, notice, warning, and security, and the
provisions for reciprocity among the States.
Id. § 7807. For a detailed discussion of the UAAA and its provisions regarding regulation of
agents, see discussion infra Part III.B.
107 MODEL RULES OF PROF’L CONDUCT (2004).
108 See Shneidman, supra note 43, at 129.
109 Id. (explaining that “[t]here are significant differences from state to state as to what [the
Model] rules are”).
110 Preface to MODEL RULES OF PROF’L CONDUCT.
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agents.111 Specifically, the Model Rules regarding disclosure require an
attorney to sufficiently communicate to her client so that the client may
make informed decisions.112 In the case of attorney-agents, false
promises regarding a student athlete’s draft prospects or misleading
facts regarding eligibility would be prohibited by this rule. Similarly,
Model Rule 8.4(c) prohibits a lawyer’s dishonest, fraudulent, deceitful,
or misrepresentative conduct.113 Furthermore, the Model Rules require
a certain level of professional competence in a lawyer’s representation
of her client.114 Therefore, an attorney-agent must meet significant
standards of education, training, and experience in her practice of law
that are not required in her practice as an agent. These standards,
however, although required for the attorney’s practice of law, still
benefit her practice as an agent, giving the attorney-agent a level of
competence not necessarily matched by non-attorney agents.
B.
Similarities Between SPARTA and the Model Rules
This Note argues that SPARTA strikingly echoes several of the
provisions of the Model Rules. First, Model Rule 1.4 requires that an
attorney explain any matter upon which she is consulting her client fully
enough so that the client may make an informed decision regarding the
matter, or regarding representation in general by that attorney.115 The
Model Rules require such disclosure in the belief that reasonable
communication between an attorney and her client is essential for the
client’s meaningful participation in the representation.116 SPARTA’s
rule requiring the agent to disclose that a contract will jeopardize the
111
112
113
114
115
See Shneidman, supra note 43, at 130-31.
MODEL RULES OF PROF’L CONDUCT R. 1.4.
Id. at 8.4(c).
Id. at 1.1.
Id. at 1.4. This Rule regarding Communication states:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to
which the client’s informed consent, as defined in Rule 1.0(e), is required by
these Rules;
(2) reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct
when the lawyer knows that the client expects assistance not permitted by the
Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
Id.
116
Id. at 1.4 cmt.
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SPORTS AGENT RESPONSIBILITY
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student athlete’s eligibility117 is merely a particularized version of the
Model Rule. Model Rules 1.4(a)(1) and (4) require that the lawyer
promptly inform her client of decisions that require the client’s
informed consent, and require that the lawyer promptly respond to
requests for information regarding the matter.118 Not only does
SPARTA require prompt disclosure, but it also takes the requirement
further, mandating a separate disclosure document to be signed by the
student athlete prior to any discussions regarding commitment to an
agency contract.119 Furthermore, just as the Model Rules add to any
requirements of fair business practices that may be mandated by state or
federal law,120 SPARTA’s disclosure requirement also supplements any
other disclosures required under state law.121 Thus, the disclosure
mandated by SPARTA brings the requirements for non-attorney agents
more up to speed with those for attorney-agents, at least with respect to
the provision of information to clients.
Second, SPARTA’s primary purpose is to facilitate the prosecution
of agents who recruit student athletes by giving false or misleading
information or promises, or by giving the athlete gifts or monetary
compensation.122 Rule 8.4(c) of the Model Rules similarly defines
provision of false or misleading information as a violation of
professional conduct.123
Before SPARTA, attorney-agents were
uniformly held to the Model Rules (or state versions thereof) and
prevented from making false promises to recruit a student athlete, but
non-attorney agents were not universally prevented from such conduct
in all states.124 Conversely, now that SPARTA implements nationwide
rules policing deceitful practices,125 non-attorney agents are held to the
same standard to which attorney-agents are held in making promises to
student athletes.
Next, SPARTA confers jurisdiction on the states to bring a civil
action, on behalf of the state’s residents, against an agent in federal
district court to obtain an injunction, enforce compliance with the
statute, or obtain damages, restitution, or other compensation.126
117
118
119
120
121
122
123
15 U.S.C.S. § 7802(b) (LexisNexis 2005).
MODEL RULES OF PROF’L CONDUCT R. 1.4(a)(1), (4).
15 U.S.C.S. § 7802(a)(2), (b).
MODEL RULES OF PROF’L CONDUCT pmbl. 7.
15 U.S.C.S. § 7802(b)(1).
Id. § 7802(a)(1).
MODEL RULES OF PROF’L CONDUCT R. 8.4(c) (stating “[i]t is professional misconduct for a
lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation”).
“Offenses involving violence, dishonesty, breach of trust, or serious interference with the
administration of justice are [offenses that indicate lack of those characteristics relevant to law
practice]. A pattern of repeated offenses, even ones of minor significance when considered
separately, can indicate indifference to legal obligation.” Id. at 8.4 cmt..
124 See discussion supra note 23, regarding disparate state legislation regulating agents.
125 Sports Agent Responsibility and Trust Act, 15 U.S.C.S. §§ 7801-7807 (LexisNexis 2005).
126 Id. § 7804(a)(1).
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SPARTA also grants a right of action to damaged educational
institutions.127 Similarly, the Model Rules provide that a client may
report violations of professional conduct to state bar associations in
order to hold his attorney accountable to the Model Rules.128 The client
may also file suit for legal malpractice, as the attorney is held to
practice competently and ethically as a licensed professional.129
Although SPARTA does not currently provide a private right of action
for the injured student athlete, a flaw which the FTC vigorously pointed
out,130 it does provide some recourse in the courts against agents who
resort to unethical and deceitful practices, even if only for state
attorneys general and educational institutions.131 Hence, non-attorney
agents are subject to lawsuits and criminal prosecution for violating
SPARTA’s ethical provisions just as attorney-agents are subject to
lawsuits and disciplinary sanction for violating the Model Rules.
Finally, SPARTA entreats the states to adopt and enact the
Uniform Athlete Agents Act (UAAA),132 particularly its provisions
relating to registration, contractual forms, cancellation rights, disclosure
requirements, and reciprocity among the states.133 These sections of the
UAAA: 1) require registration,134 certification, and background
checks135 of sports agents seeking to represent student athletes; 2)
impose specific contractual terms136 on representation agreements; 3)
allow cancellation of an agency contract by the student athlete within
fourteen days after signature;137 4) require agents applying for
registration to disclose their training, experience, education, felony or
criminal convictions, administrative or judicial sanctions, and any
127
128
129
130
Id. § 7805(b).
See Nichols, supra note 9, at 25.
Id.
Howard Beales, Director of the Bureau of Consumer Protection of the FTC, testified before
the House Subcommittee on Commerce, Trade and Consumer Protection of the Committee on
Energy and Commerce on June 5, 2002—over two years before the bill was passed. Sports Agent
Responsibility and Trust Act: Hearing on H.R. 4701 Before the Subcomm. on Commerce, Trade
and Consumer Protection of the H. Comm. on Energy and Commerce, 107th Cong. 19-24 (2002)
[hereinafter House SPARTA Hearing (2002)] (statement of Howard Beales, Director, Bureau of
Consumer Protection, Federal Trade Commission). Beales explained that the FTC was primarily
concerned that SPARTA strengthened and endorsed already-existing NCAA rules governing
agent and student athlete practices, and questioned whether such endorsement of existent private
regulations served to protect the industry itself rather than consumers. Id. at 20. Beales stated
that the FTC was not persuaded that SPARTA furthered consumer interests because it seemed to
endorse NCAA eligibility rules, which divert college sports revenue away from even inadvertent
student athlete violators. Id.
131 15 U.S.C.S. §§ 7804(a)(1), 7805(b).
132 For a discussion of the history of the UAAA, see supra notes 23, 73 and accompanying
text.
133 15 U.S.C.S. § 7807.
134 UNIF. ATHLETE AGENTS ACT § 5, 7 U.L.A. 789 (2005).
135 Id. § 6, 7 U.L.A. 796.
136 Id. § 10, 7 U.L.A. 811.
137 Id. § 12, 7 U.L.A. 817.
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license suspensions;138 and 5) allow agents who have a valid certificate
of registration in one state to cross-file that application in all other
UAAA states.139 Although SPARTA does not have such extensive
138
139
Id. § 5, 7 U.L.A. 789.
Id. § 6(e), 7 U.L.A. 797. The relevant sections of the UAAA provide:
§ 5. Registration as Athlete Agent; Form; Requirements.
(a) An applicant for registration shall submit an application for registration to the
[Secretary of State] in a form prescribed by the [Secretary of State]. [An application
filed under this section is a public record.] The application must be in the name of an
individual and, except as otherwise provided in subsection (b), signed or otherwise
authenticated by the applicant under penalty of perjury and state or contain:
(1) the name of the applicant and the address of the applicant’s principal place of
business;
(2) the name of the applicant’s business or employer, if applicable;
(3) any business or occupation engaged in by the applicant for the five years next
preceding the date of submission of the application;
(4) a description of the applicant’s:
(A) formal training as an athlete agent;
(B) practical experience as an athlete agent; and
(C) educational background relating to the applicant’s activities as an athlete
agent;
(5) the names and addresses of three individuals not related to the applicant who
are willing to serve as references;
(6) the name, sport, and last known team for each individual for whom the
applicant acted as an athlete agent during the five years next preceding the date of
submission of the application;
(7) the names and addresses of all persons who are:
(A) with respect to the athlete agent’s business if it is not a corporation, the
partners, members, officers, managers, associates, or profit-sharers of the
business; and
(B) with respect to a corporation employing the athlete agent, the officers,
directors, and any shareholder of the corporation having an interest of five
percent or greater;
(8) whether the applicant or any person named pursuant to paragraph (7) has been
convicted of a crime that, if committed in this State, would be a crime involving
moral turpitude or a felony, and identify the crime;
(9) whether there has been any administrative or judicial determination that the
applicant or any person named pursuant to paragraph (7) has made a false,
misleading, deceptive, or fraudulent representation;
(10) any instance in which the conduct of the applicant or any person named
pursuant to paragraph (7) resulted in the imposition of a sanction, suspension, or
declaration of ineligibility to participate in an interscholastic or intercollegiate
athletic event on a student-athlete or educational institution;
(11) any sanction, suspension, or disciplinary action taken against the applicant or
any person named pursuant to paragraph (7) arising out of occupational or
professional conduct; and
(12) whether there has been any denial of an application for, suspension or
revocation of, or refusal to renew, the registration or licensure of the applicant or
any person named pursuant to paragraph (7) as an athlete agent in any State.
§ 6. Certificate of Registration; Issuance or Denial; Renewal.
(a) Except as otherwise provided in subsection (b), the [Secretary of State] shall issue a
certificate of registration to an individual who complies with Section 5(a) or whose
application has been accepted under Section 5(b).
(b) The [Secretary of State] may refuse to issue a certificate of registration if the
[Secretary of State] determines that the applicant has engaged in conduct that has a
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significant adverse effect on the applicant's fitness to act as an athlete agent. In making
the determination, the [Secretary of State] may consider whether the applicant has:
(1) been convicted of a crime that, if committed in this State, would be a crime
involving moral turpitude or a felony;
(2) made a materially false, misleading, deceptive, or fraudulent representation in
the application or as an athlete agent;
(3) engaged in conduct that would disqualify the applicant from serving in a
fiduciary capacity;
(4) engaged in conduct prohibited by Section 14;
(5) had a registration or licensure as an athlete agent suspended, revoked, or
denied or been refused renewal of registration or licensure as an athlete agent in
any State;
(6) engaged in conduct the consequence of which was that a sanction, suspension,
or declaration of ineligibility to participate in an interscholastic or intercollegiate
athletic event was imposed on a student-athlete or educational institution; or
(7) engaged in conduct that significantly adversely reflects on the applicant's
credibility, honesty, or integrity.
(c) In making a determination under subsection (b), the [Secretary of State] shall
consider:
(1) how recently the conduct occurred;
(2) the nature of the conduct and the context in which it occurred; and
(3) any other relevant conduct of the applicant.
(d) An athlete agent may apply to renew a registration by submitting an application for
renewal in a form prescribed by the [Secretary of State]. [An application filed under
this section is a public record.] The application for renewal must be signed by the
applicant under penalty of perjury and must contain current information on all matters
required in an original registration.
(e) An individual who has submitted an application for renewal of registration or
licensure in another State, in lieu of submitting an application for renewal in the form
prescribed pursuant to subsection (d), may file a copy of the application for renewal
and a valid certificate of registration or licensure from the other State. The [Secretary
of State] shall accept the application for renewal from the other State as an application
for renewal in this State if the application to the other State:
(1) was submitted in the other State within six months next preceding the filing in
this State and the applicant certifies the information contained in the application
for renewal is current;
(2) contains information substantially similar to or more comprehensive than that
required in an application for renewal submitted in this State; and
(3) was signed by the applicant under penalty of perjury.
(f) A certificate of registration or a renewal of a registration is valid for [two] years.
§ 10. Required Form of Contract.
(a) An agency contract must be in a record, signed or otherwise authenticated by the
parties.
(b) An agency contract must state or contain:
(1) the amount and method of calculating the consideration to be paid by the
student-athlete for services to be provided by the athlete agent under the contract
and any other consideration the athlete agent has received or will receive from
any other source for entering into the contract or for providing the services;
(2) the name of any person not listed in the application for registration or renewal
of registration who will be compensated because the student-athlete signed the
agency contract;
(3) a description of any expenses that the student-athlete agrees to reimburse;
(4) a description of the services to be provided to the student-athlete;
(5) the duration of the contract; and
(6) the date of execution.
(c) An agency contract must contain, in close proximity to the signature of the student-
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SPORTS AGENT RESPONSIBILITY
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requirements, it amounts to federal endorsement of the restrictions
included in the UAAA. This federal endorsement may encourage the
remaining states that have not yet adopted the UAAA140 to do so,
especially since SPARTA contains an express directive from Congress
that the states should enact the UAAA.141
Furthermore, some of the UAAA’s requirements for agents align
with the Model Rules’ requirements for attorneys. For instance, Section
5(a)(4) of the UAAA requires an agent applying for certification to
provide her formal training, practical experience, and educational
background.142 Similarly, Rule 1.1 of the Model Rules requires that an
attorney provide competent representation to her client, which requires
the necessary legal knowledge, skill, and preparation.143 Although the
athlete, a conspicuous notice in boldface type in capital letters stating:
WARNING TO STUDENT-ATHLETE
IF YOU SIGN THIS CONTRACT:
(1) YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENTATHLETE IN YOUR SPORT;
(2) IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER
ENTERING INTO THIS CONTRACT, BOTH YOU AND YOUR ATHLETE
AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR; AND
(3) YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER
SIGNING IT. CANCELLATION OF THIS CONTRACT MAY NOT
REINSTATE YOUR ELIGIBILITY.
(d) An agency contract that does not conform to this section is voidable by the studentathlete. If a student-athlete voids an agency contract, the student-athlete is not required
to pay any consideration under the contract or to return any consideration received
from the athlete agent to induce the student-athlete to enter into the contract.
(e) The athlete agent shall give a record of the signed or otherwise authenticated
agency contract to the student-athlete at the time of execution.
§ 12. Student-Athlete’s Right to Cancel.
(a) A student-athlete may cancel an agency contract by giving notice of the
cancellation to the athlete agent in a record within 14 days after the contract is signed.
(b) A student-athlete may not waive the right to cancel an agency contract.
(c) If a student-athlete cancels an agency contract, the student-athlete is not required to
pay any consideration under the contract or to return any consideration received from
the athlete agent to induce the student-athlete to enter into the contract.
§ 18. Uniformity of Application and Construction. In applying and construing this
Uniform Act, consideration must be given to the need to promote uniformity of the law
with respect to its subject matter among States that enact it.
Id. §§ 5(a), 6, 10, 12, 18, 7 U.L.A. 789, 796, 811, 817, 832.
140 As of January 23, 2006, thirty-three states, as well as the District of Columbia and the U.S.
Virgin Islands had adopted the UAAA. See NCAA.org, supra note 23. Three states had active
UAAA bills in their state legislatures (Hawaii, New Jersey, and New Mexico). Id. In addition to
those three, fourteen other states and Puerto Rico still have not yet adopted the UAAA (Alaska,
California, Colorado, Illinois, Iowa, Maine, Massachusetts, Michigan, Nebraska, New Mexico,
Ohio, South Dakota, Vermont, and Virginia). Id. Five of those states, however, have existing
non-UAAA laws designed to regulate athlete agents (California, Colorado, Iowa, Michigan,
Ohio). Id.
141 Sports Agent Responsibility and Trust Act, 15 U.S.C. § 7807 (LexisNexis 2005).
142 UNIF. ATHLETE AGENTS ACT § 5(a)(4), 7 U.L.A. 789-90.
143 MODEL RULES OF PROF’L CONDUCT R. 1.1 (2004). “A lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.” Id.
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UAAA (and SPARTA, by extension) does not require a certain
competency level, as do the Model Rules, and requires only that the
agent report the qualifications that she does possess, the requirement
still serves to theoretically raise the bar for entry into the agent
profession. Presumably, if education and experience must be reported,
they may become significant indices of competency for agents, as
clients may naturally prefer agents with more experience and expertise.
Thus, this requirement may serve to lessen the competition that occurs
on less beneficial characteristics, such as unethical recruitment practices
and financial inducements. If competition then occurs more frequently
on experience, expertise, and education, more athletes may choose
attorney-agents as their representatives.
IV. SPARTA, THE COMPETITIVE DISADVANTAGE, AND A
RISE IN ETHICS
SPARTA designates certain conduct by sports agents in recruiting
student athletes as unfair and deceptive trade practices,144 thus
protecting the athletes’ collegiate eligibility, ensuring compliance with
NCAA rules, and preserving the integrity of college sports by regulating
agents’ unethical conduct. SPARTA will achieve its intended purpose
by prohibiting unethical agent conduct, subject to enforcement by the
FTC, state civil actions, and a private right of action granted to
educational institutions.145 This Note proposes that SPARTA will also
achieve an unintended, yet beneficial, result of initiating a rise in ethics
for the entire sports agency industry.
Prior to SPARTA, many attorney-agents faced a competitive
disadvantage in comparison to non-attorney agents, both in recruiting
student athletes and representing professional athletes, due to the
attorney-agent’s mandated adherence to rules of professional
responsibility.146 Before SPARTA was enacted, agents were not
federally regulated in their unethical recruiting practices.147 Attorneyagents, then, had two choices. They could either: 1) disregard their
ABA ethical obligations and sink to the level of unethical agents in
order to compete; or 2) endeavor to attract clients on their expertise,
experience, and ethical standards—concededly not big selling points
when agents were free to make grandiose false promises in attracting
clients. Thus, the level of ethical representation in the entire agent
144
145
146
147
15 U.S.C.S. §§ 7801-7807.
Id. §§ 7803, 7804, 7805(b).
See discussion supra Part I.B.
See supra notes 23-27 and accompanying text.
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SPORTS AGENT RESPONSIBILITY
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industry was driven downward.148
After SPARTA, however, unethical agents are theoretically
without their arsenal of cash inducements, fancy cars, and sugarplum
dreams of being signed in the first round to a multi-million-dollar
contract.149 SPARTA aims to eliminate these unethical practices,
assuming, of course, that agents’ behavior is affected by the threat of
prosecution. But, SPARTA will also trip forward in the act of
preventing unethical agent representation, albeit accidentally. Since
SPARTA enacts several provisions that mirror the Model Rules for
attorneys,150 attorney-agents will be placed on more equal footing with
non-attorney agents, which will foster competition among all agents on
more proper indices, such as education, expertise, and ethical standards,
rather than money, cars, and false promises.151 SPARTA now makes it
possible for education, expertise, and ethical standards to be big sellers
in client recruitment, as shady inducements will be restricted.
Furthermore, better-informed athletes, having no other inducements to
contract, will now give weighty credit to superior education, expertise,
and ethical principles.152 Therefore, the average sports agent will more
likely be an attorney than a non-attorney, as attorney-agents will have
the lion’s share of attributes appealing to prospective clients. In turn,
ethical representation in the industry will rise, due to the increased
number of attorney-agents, beyond even SPARTA’s requirements, as
attorneys must abide by rules that regulate and protect above and
beyond SPARTA’s regulations.
In consequence, not only will more agents be lawyers, thus raising
the ethical bar by their sheer numbers, but non-attorney agents will also
be forced to compete with the increased number of attorney-agents by
raising their own level of ethical representation. Non-attorney agents
may even have to strive for the super-SPARTA level of representation
just to compete with attorney-agents. This is the direct converse of the
present status of the industry, where attorney-agents are forced to
compete with non-attorney agents by lowering their level of ethical
representation.153
In contrast to other commentator’s proposals to narrow the
competitive advantage,154 this Note proposes that SPARTA, in practice,
will address that paradox, if given time to play out. Admittedly, this
148
149
150
151
152
See discussion supra Part I.A.
See discussion supra Part II.
See discussion supra Part III.
See supra note 89 and accompanying text.
See Nichols, supra note 9, at 25 (stating that “[m]any collegiate and professional sports
practitioners believe that lawyers, and only lawyers, should be allowed to represent professional
athletes”).
153 See supra note 48 and accompanying text.
154 See discussion supra Part I.B.
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theory assumes that non-attorney agents will be dissuaded from
unethical practices by the regulations implemented in SPARTA. One
might argue that an agent may be willing to face costly litigation if he or
she may still be able to sign athletes to multi-million-dollar contracts. It
is also important to note that now, over a year after SPARTA’s
enactment, it does not seem that any state or educational institution has
commenced litigation against an athlete-agent under the right of action
conferred by SPARTA. It also appears that the FTC has yet to use this
significant tool.
However, even if SPARTA falls on the deaf ears of agents, or
worse, the deaf ears of potential plaintiffs such as the states,
universities, and the FTC, it will not be silent to student athletes. Even
if an agent may still offer a student athlete cash or false promises, the
athlete’s eligibility will immediately be compromised upon signature,
forcing SPARTA’s disclosure provision.155 At the very least, SPARTA
will result in better-informed student athletes. Thus, even if SPARTA
completely fails in preventing most of the unethical practices it aims to
curb, student athletes will still have more information available to them
about the risks and consequences of signing with an agent. Thus, this
information will lead to a more considered decision, and if the student
athlete still chooses an agent at all, the agent now may more likely be an
attorney-agent, as an attorney-agent offers more protection and
insulation from those risks and consequences. In contrast, if SPARTA
succeeds in preventing unethical practices, even if only to a certain
extent, it will only augment the consequent rise in ethical practice in the
industry, thus giving attorney-agents even more of a chance of winning
a client.
SPARTA, admittedly, is directed solely toward agent practices in
recruiting and signing student athletes.156 Therefore, if it does begin to
solve the attorney-agent’s competitive disadvantage, it presents a mere
first step, since it omits sanctions for agent conduct during the course of
representing a professional athlete.157 A closer examination of
SPARTA’s legislative history, however, exposes the possibility that
SPARTA is indeed the all-important first of many steps toward agent
regulation, and that further Congressional attention to “agent abuse”
may be forthcoming. For instance, the October 7, 2002, House Report
maintained that federal legislation was necessary to address sports
agents’ unscrupulous practices, motivated by the multimillion-dollar
155
156
157
See discussion supra Part II.
15 U.S.C.S. § 7802 (LexisNexis 2005).
See Philip N. Fluhr, Jr., The Regulation of Sports Agents and the Quest for Uniformity, 6
SPORTS LAW. J. 1, 21 (1999). Fluhr criticizes the UAAA for much the same reason, claiming that
it “may be too narrow for a law that purports to be ‘uniform.’ This shortcoming . . . renders the
Act powerless to sanction sports agents who engage in unscrupulous conduct during the course of
representing a professional athlete.” Id.
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value of a professional athlete’s salary, in unethically recruiting
promising student athletes.158 Although the report focused on this
particular unscrupulous practice, it stated that the financial value of
representing a professional athlete has resulted in a “proliferation of
unscrupulous practices,”159 intimating that this legislation may be
directed toward multiple unwelcome practices.
Furthermore, in his testimony before the House Subcommittee on
Commercial and Administrative Law in advocating SPARTA,
Congressman Osborne included agent mismanagement of athletes’
finances as another reason to enact federal legislation.160 Although
Osborne made this point while pushing for legislation to curb agent
recruitment of student athletes, who may find their finances in ruin due
to signing with an unscrupulous agent while in college, such practices
are not confined to agents who sign student athletes.161
Additionally, Scott Boras, President and Owner of the Scott Boras
Corporation and Impact Sports Marketing and Agency, testified in the
same Subcommittee Hearing that he considered SPARTA “a wonderful
first step” toward injecting ethical credence into the process of athleterepresentation.162 Boras emphasized that a more informed student
athlete will be less likely to sign with an unscrupulous agent who might
compromise his collegiate, professional, and financial standing.163 In
that vein, if student athletes have an interest in avoiding unscrupulous
agents, and the federal government seeks to protect that interest due to
the harm it causes the educational institutions and the public, it is
difficult to understand why Congress would not also have an interest in
harm caused by unscrupulous agents who represent professional
athletes.
Still, even if a general agent statute is not in Congress’s ultimate
plan, SPARTA will ignite a chain reaction that will equalize
opportunities for attorney-agents and non-attorney agents, irrespective
of their conduct with student athletes. Under SPARTA, the promising
student-athlete is afforded more information, more warnings, and more
protection against unscrupulous agents. Thus, the number of athletes
entering the draft who are represented by an unscrupulous agent will
decrease significantly. Agents will then be forced to compete, not upon
unethical practices and shady dealings, but upon their attractiveness to
the athlete-client, whom they may no longer woo with cash payments or
158
159
160
161
162
163
H.R. REP. NO. 107-725 (2002), at 4.
Id.
See House SPARTA Hearing (2003), supra note 2, at 7.
See supra notes 33-39 and accompanying text.
House SPARTA Hearing (2003), supra note 2, at 12.
Id. at 10. Boras cited research performed by his company that found that “less than [one]
percent of . . . student-athletes go on to have a [six]-year pro career.” Id. at 12.
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fancy cars.164 Ultimately, because an attorney-agent has significant
principles and expertise that are appealing to the athlete-client,165 the
athlete will more frequently choose the attorney-agent over the nonattorney agent, thus narrowing the competitive disadvantage and
signaling improvement in the ethics-challenged industry of sports
representation.
CONCLUSION
Sports agents are permanently entrenched in the world of
professional sports, in part for good reasons.166 It is to an athlete’s
advantage to have a representative managing his career and financial
opportunities.167 However, the competition inherent among agents to
represent such lucrative clients increases the potential for unethical
behavior,168 placing attorney-agents, who must adhere to strict rules of
professional responsibility, at a competitive disadvantage.169 SPARTA,
with its attorney-like rules for sports agents, will serve to narrow that
competitive disadvantage in its pursuit of regulating agent recruitment
of student-athletes, resulting in greater ethics in the entire sports agency
industry.
Still, SPARTA does not address, nor does it solve, all of the
problems inherent in the agent industry.170 First, SPARTA, does not
require any particular level of competence for agents. An “athlete
164 See Nichols, supra note 9, at 22 (“Athletic directors and university presidents shiver with
the thought that an agent may ply a student-athlete with cash, cars, dinners, clothes, or some other
commodity . . . .”).
165 See supra note 5 and accompanying text.
166 See, e.g., supra note 9 and accompanying text; Bryan Couch, Comment, How Agent
Competition and Corruption Affects Sports and the Athlete-Agent Relationship and What Can Be
Done to Control It, 10 SETON HALL J. SPORT L. 111, 112, 136 (2000) (arguing that “[s]ports
agents are now permanent fixtures in the sports world” who are incredibly important because they
provide financial management, accounting, public relations, investment, tax and estate planning,
and legal counseling).
167 See supra note 9 and accompanying text.
168 See supra note 2 and accompanying text.
169 See discussion supra Part I.B.
170 One recent student Note argues that SPARTA will be ineffective because it is no stronger
than regulations already in effect. See Eric Willenbacher, Note, Regulating Sports Agents: Why
Current Federal and State Efforts Do Not Deter the Unscrupulous Athlete-Agent and How a
National Licensing System May Cure the Problem, 78 ST. JOHN’S L. REV. 1225, 1226 (2004).
The commentator, however, does not address the important difference that SPARTA is novel,
standardized federal legislation. Furthermore, Willenbacher states that the only deterrent that
may be effective in making agents conform to the law is the possibility that the agent would be
“stripped of his ability to work in his chosen profession and, consequently, frozen out of a billion
dollar industry.” Id. at 1250. Willenbacher fails to note, however, that a crucial competitor—the
attorney-agent—might be the one effectively freezing the non-attorney agent out, thus forcing
compliance with the law and self-policing of the industry.
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agent” is defined as someone who contracts with a student athlete to
represent the athlete,171 not as someone who possesses any kind of
specialized skill or knowledge. Conversely, the Model Rules require an
attorney to provide competent counsel, based upon the particular skill
and education mandated for professional licensing.172
Second, SPARTA does not include a private right of action for the
student athlete.173 Both the FTC and the House Subcommittee
expressed concern over the absence of this remedy in the statute.174
This is a marked difference from attorney-client relationships, in which
the injured client may report an attorney to her state or local bar
association, or may bring a malpractice action against the attorney.175
Particularly, the FTC argued that in the absence of this private right of
action, SPARTA will benefit the industry and the NCAA, rather than
consumers or student-athletes.176 It is quite possible that this lack of a
private right of action may explain the dearth of litigation instituted thus
far under SPARTA—it sits presently as a sharpened sword, but without
a plaintiff to wield it.
Without the private right of action, akin in some ways to a
malpractice suit, it does seem that SPARTA may critically ignore the
object of its protection—the student athlete. Still, as argued above,
SPARTA will protect the student athlete, perhaps not by providing a
171
172
173
15 U.S.C.S. § 7801 (LexisNexis 2005).
See MODEL RULES OF PROF’L CONDUCT R. 1.1 (2004).
See House SPARTA Hearing (2003), supra note 2, at 12. In response to the
Subcommittee’s questioning on why there isn’t a private right of action for the student athlete,
Congressman Gordon stated that because the individuals “wouldn’t be familiar and may be even
uncomfortable with this type of action,” it would be better left to the State Attorneys General. Id.
at 15. Gordon also commented that the States themselves would be able to extend private rights
of action to the student athletes. Id.
174 See House SPARTA Hearing (2002), supra note 130, at 23 (prepared statement of the
FTC):
[D]eceptive statements . . . already are prohibited by Section 5 of the FTC Act and
numerous state “Little FTC” Acts. If Congress sees a need for additional avenues to
challenge such practices, we believe that the most appropriate avenue would be a
private right of action rather than additional public enforcement provisions. A private
right of action would enable individuals to vindicate their rights in specific cases that
might not be appropriate for Commission action taken in the public interest. We note,
however, that although Section 6 of H.R. 4701 provides for a private right of action to
universities injured as a result of an agent’s conduct, there is no similar private right of
action provided to injured individual student athletes. Adding such a cause of action
would further the proposed legislation’s purpose to protect student athletes.
Scott Boras also expressed concern over the absence of a private right of action. House SPARTA
Hearing (2003), supra note 2, at 13. Boras also argued that the statute
should promote the use of legal counsel to assist the student-athlete in making a fully
informed decision. In its present state, the bill does not distinguish between a sports
agent whose relationship has one intended direction for the student-athlete and that of
an attorney, who is mandated to serve the best interest of the student-athlete.
Id.
175 See supra notes 128-29 and accompanying text.
176 See House SPARTA Hearing (2002), supra note 130, at 22.
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private right of action, but, rather, by implicating a rise in ethics for the
entire agent industry due to more equal opportunities for attorney-agents
in seeking and retaining clients. Since attorney-agents are subject to
more stringent regulations than even those in SPARTA and may be the
more attractive choice for the player-client, the unscrupulous nonattorney agent will be significantly disadvantaged in recruitment of the
student athlete who is signing with the agent to leave college and “go
pro.” Thus, SPARTA will spark a natural balancing in the entire
industry by enacting attorney-like rules in its regulation of agent
conduct in recruiting superstar collegiate athletes.