Selecting an Agent, Using Personal Counsel and Agent Regulation

I recently had the opportunity to speak with Connecticut Sports Law guest columnist Rob Romano for an interview for his new website “Romano on Sports” concerning sports agents.  In particular, we discussed the athlete’s process of selecting an agent, the role that personal counsel can play for an athlete, and the regulation of agents.

Rob Romano:  What advice do you have for athletes when it comes time to choose an agent?

Dan Fitzgerald:  Similar to the college recruiting process, I think an athlete needs to assemble a team of people to assist in the process of retaining an agent.  Trusted advisors such as family members, an old coach or athletic director can be helpful.  Beyond the basics of finding agent who is trustworthy and a good fit for the athlete, I’d recommend that athletes look for an agent with their long-term interests in mind, as well as an agent who is open to involving other professionals such as lawyers, accountants, financial planners, etc.  Not only can the use of other professionals help provide the best possible representation, but also can provide the necessary checks and balances.

RR:  Do athletes need an attorney if they have an agent?

DF:  Typically, yes.  An athlete should have an attorney review any legal document that he or she considers signing, including a contract for representation by an agent.  Also, athletes must consider how agents are paid – by commission, taking a percentage of the athlete’s earnings.  Agents may have a vested interest in a player signing a deal for not only the commission, but to maintain a positive working relationship with a particular team or sponsor for the agent’s other clients.  This doesn’t diminish what agents do, but it may present conflicts of interest.  Attorneys are held to a different ethical standard than agents, especially with respect to such conflicts.  Accordingly, an attorney should be able to provide a different perspective to an athlete than that of his or her agent.

RR:  Some states have passed laws, or are considering laws, that criminalize inappropriate agent behavior.  Do you think this is a positive development?

DF:  In Alabama, failing to register as an agent and having illegal contact with an athlete can result in a felony. Arkansas is also considering such legislation. Personally, I don’t think that agents should be charged with felonies for contacting a player at the wrong time or even providing improper payments. It goes too far in preservation of the ideal of amateurism, which just isn’t the reality at the highest level of collegiate athletics.  The commercialization doesn’t condone cheating – but it also shouldn’t result in felony charges for agent-specific behavior.  Of course, if an agent commits an act that violates some other state or federal law, the agent should be held accountable.

RR:  Who should regulate agents?

DF:   The Players’ Associations should regulate agents.  Players’ Associations already regulate agent certification, how much an agent can be paid, and how fee disputes between players and agents should be handled. These entities should be regulating agent activity as well.  I compare it to lawyers being regulated by their state bar associations. These groups have the power to take away an agent, or a lawyer’s, livelihood. I think that is a powerful tool and sufficient to regulate the profession.

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