United States District Court, D. Massachusetts
JAMES DICKEY, also known as Players1st Sports Management Group - SMG, Plaintiff,
NATIONAL FOOTBALL LEAGUE, NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL, and NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, Defendants.
MEMORANDUM AND ORDER
Talwani United States District Judge.
James Dickey, proceeding pro se, has filed a
Complaint [#1] alleging claims for breach of
contract, breach of the implied covenant of good faith and
fair dealing, breach of fiduciary duty, antitrust violations,
and wrongful collusion against Defendants the National
Football League (“NFL”), the National Football
League Management Council (“NFLMC”), and the
National Football League Players Association
(“NFLPA”). The NFLPA has filed a Motion to
Compel Arbitration and Dismiss the Complaint or, in the
Alternative, to Dismiss the Complaint for Failure to State a
Claim [#16]. The NFL and NFLMC have filed a Motion
to Dismiss the Complaint [#23]. For the reasons that
follow, the NFLPA's motion to compel arbitration is
DENIED. The NFLPA's alternative motion to dismiss for
failure to state a claim and the NFL and NFLMC's motion
to dismiss are ALLOWED.
Facts Relevant to the Motion to
is a professional football league that consists of member
teams known as “clubs.” Compl. ¶ 4 [#1]. The
NFLPA is the labor union representing NFL players.
Id. ¶ 2; see also Aff. of Jonathan J.
Amoona Ex. B (“2011 Collective Bargaining
Agreement”) xv [#18-2]. Owners of individual NFL clubs
negotiate collectively with the NFLPA through the NFLMC, a
professional management group that serves as the sole and
exclusive bargaining representative of NFL club owners.
Compl. ¶ 3. Over time, the NFLPA and NFLMC have entered
into various iterations of a Collective Bargaining Agreement
(“CBA”), including in 2011. Id.
¶¶ 6, 9-11.
to the CBA and its guidelines, agents seeking to represent
players in individual contract negotiations must be certified
by the NFLPA. Compl. ¶ 6. The CBA provides that
“[t]he NFL and the Clubs recognize that, pursuant to
federal labor law, the NFLPA will regulate the conduct of
agents who represent players in individual contract
negotiations with Clubs.” 2011 CBA Art. 48, § 1.
The CBA prohibits clubs “from engaging in individual
contract negotiations with any agent who is not listed by the
NFLPA as being duly certified by the NFLPA in accordance with
its role as exclusive bargaining agent for NFL
players.” Id. The CBA further provides that
the NFL Commissioner must disapprove any contract between an
individual player and NFL club in which the player is
represented by an agent who is not NFLPA-certified.
Id. § 2. Clubs that knowingly enter into such
prohibited contracts are subject to fines. Id.
successfully applied for certification in 2007 and 2008.
Compl. ¶ 6. Under the CBA guidelines, he was required to
abide by the “Three Year Rule.” Id.
¶ 7. This rule provides for automatic expiration of an
agent's certification if the agent is unable to negotiate
an individual contract on behalf of a football player to an
NFL club's active fifty-three-man roster within three
years. Id. Because Dickey was unable to meet this
requirement, his certification expired in 2011. Id.
¶ 8. Dickey alleges that he filed a notice of appeal,
but was not granted an appeal hearing because of ongoing
collective bargaining negotiations. Id. ¶ 9.
successfully applied for recertification sometime after the
NFLPA and NFLMC entered into a new CBA in 2011. Compl. ¶
11. Dickey alleges that he observed disparity in treatment of
new and “minority” agents, secret meetings and
agreements between established agents and the NFLPA, and
practices that permitted established agents to avoid
decertification despite violating NFLPA rules and
regulations. Id. ¶¶ 12-15. With respect to
the Three Year Rule, Dickey alleges that the NFLPA and NFL
allowed several agents to “act as one” by signing
off on the same individual player's contract to an active
roster, thereby allowing some agents to avoid decertification
despite minimal involvement in negotiating contracts.
Id. ¶ 21. Dickey was again decertified pursuant
to the Three Year Rule, effective October 1, 2016.
Id. ¶¶ 16, 18.
Additional Facts Relevant to the Motion to Compel
“guidelines” referenced in Dickey's Complaint
are regulations adopted by the NFLPA. See Aff. of
Jonathan J. Amoona Ex. A (“NFLPA Contract Advisor
Regulations”) Introduction [#18-1]. The “Three
Year Rule” provision of these Regulations provides:
“[t]he Certification of any Contract Advisor who has
failed to negotiate and sign a player to an NFL Player
Contract (excluding Practice Squad Contracts) for at least
one NFL player during any three-year period shall
automatically expire at the end of such three-year
period.” Id. § 2(G). The Regulations also
include provisions for arbitration, including arbitration in
connection with disciplinary action. Id.
§§ 5, 6(E).
A to the NFLPA Contract Advisor Regulations is the
Application for Certification, which provides that the
applicant “agree[s] to comply with and be bound by
these Regulations . . . and any subsequent amendments
thereto, ” and that the applicant agrees that if he or
she is “denied certification, or if subsequent to
obtaining certification it is revoked or suspended pursuant
to the Regulations, the exclusive method for challenging any
such action is through the arbitration procedure set forth in
the Regulations.” Id. App. A [#18-1].
September 30, 2016, Dickey wrote the NFLPA stating his
objection “to the provision under section 2G of the
NFLPA's Regulations Governing Contract Advisors (aka 3yr
Rule) as an improper condition for continued certification
and restraint on competition among agents duly qualified to
represent the players of the NFL, and as under the guidance
of the NFLPA.” Aff. of Jonathan J. Amoona Ex. C
(“September 2016 Email”) [#18-3]. He requested
“a fair and impartial hearing on all relevant issues to
this matter prior to the automatic decertification and/or
removal from the certified list of agents as submitted to the
NFL & NFLMC.” Id. The NFLPA notified him
that it had scheduled a hearing before the NFLPA's
special arbitrator in Washington, D.C., on November 22, 2016.
Aff. of Jonathan J. Amoona Ex. D (“October and November
2016 Emails”) [#18-4]. Dickey objected to the date
based on his schedule and noted that he had learned that the
NFLPA had already removed him from the official list of
Motion to Compel Arbitration
NFLPA has moved pursuant to the Federal Arbitration Act, 9
U.S.C. § 1 et seq., to compel arbitration of
all of Dickey's claims and to dismiss the Complaint on
that basis. As the party seeking to compel arbitration, the
NFLPA must show “that a valid agreement to arbitrate
exists, that the movant is entitled to invoke the arbitration
clause, that the other party is bound by that clause, and
that the claim asserted comes within the clause's
scope.” Dialysis Access Ctr., LLC v. RMS Lifeline,
Inc., 638 F.3d 367, 375 (1st Cir. 2011) (quotation
NFLPA argues that Dickey “agreed to ‘comply with
and be bound by' the NFLPA Regulations, including the
arbitration procedure thereunder.” Mem. in Supp. of
NFLPA's Mot. 8 [#17]. In support it proffers the NFLPA
Contract Advisor Regulations and the blank Application for
Certification form attached thereto as Appendix
The NFLPA has not provided the court with a signed copy of
that form, but as Dickey does not dispute that he signed such
an agreement, the court assumes that there is an agreement to
arbitrate to the extent set forth in the Application for
Certification form and NFLPA Contract Advisor Regulations.
more difficult issue for the NFLPA is establishing that the
claims asserted here come within the scope of that agreement.
Had Dickey challenged the denial of a certification, that
claim would fall squarely within the arbitration agreement.
See NFLPA Contract Advisor Regulations, App. A,
Application for Certification (agreeing that the exclusive
method for challenging the denial of a certification is
through the arbitration procedure set forth in the
Regulations); id. § 5(A)(1) (“This
arbitration procedure shall be the exclusive method for
resolving any and all disputes that may arise from the . . .
[d]enial by the NFLPA of an applicant's Application for
Certification”); id. §§ 2(D), 5
(setting forth the procedure for filing an appeal from denial
of certification and invoking arbitration). Similarly, if
after becoming certified, Dickey had challenged the
revocation or suspension of his certification, that claim
also would fall squarely within the arbitration agreement.
See NFLPA Contract Advisor Regulations, App. A,
Application for Certification (agreeing that the exclusive
method for challenging the revocation or suspension of a
certification is through the arbitration procedure set forth
in the NFLPA Contract Advisor Regulations); id.
§ 6(E) (setting forth the procedure for filing an appeal
and invoking arbitration challenging revocation or suspension
of certification). But Dickey's Complaint does not
challenge the denial of or any revocation or suspension of a
certification. Instead, it challenges the NFLPA, NFL, and
NFLMC's enforcement (or selective enforcement) of the
Three Year Rule and the expiration of Dickey's
NFLPA argues that these challenges fall within § 5(A)(4)
of the NFLPA Contract Advisor Regulations. That section
provides that the arbitration procedure set forth in the
Regulations “shall be the exclusive method for
resolving any and all disputes that may arise from . . .
[a]ny other activities of a Contract Advisor within
the scope of these Regulations . . . .” (Emphasis
added). The Regulations define Contract Advisor
“activities” to include:
the providing of advice, counsel, information or assistance
to players with respect to negotiating their individual
contracts with Clubs and/or thereafter in enforcing those
contracts; the conduct of individual compensation
negotiations with the Clubs on behalf of players; and any
other activity or conduct which directly bears upon the
Contract Advisor's integrity, competence or ability to
properly represent NFL players and the NFLPA in individual
contract negotiations, including the handling of player
funds, providing tax counseling and preparation services, and
providing financial advice and investment services to
Id. §1(B). As Dickey highlights, Section
5(A)(4) applies only to disputes over a Contract
Advisor's activities, and not to disputes over the
the arbitration provision in § 5(A)(4), like the
provision in §§ 5(A)(2), (3), (5) and (6),
unlike the provisions concerning the denial of a
certification or imposition of discipline and discharge
discussed above, can only be invoked in disputes between a
Contract Advisor and an NFL player, or between multiple
Contract Advisors, and not in disputes between Contract
Advisors and the NFLPA. Section 5(B) explains that “a
dispute under Section 5(A)(2)-(6) shall be initiated by the
filing of a written grievance either by the player or
Contract Advisor.” For grievances initiated by a
Contract Advisor, Section 5(B) then details the steps that
must be followed with regard to a grievance against a player
or another Contract Advisor. Section 5(B) does not
contemplate any grievances against the NFLPA.
the § 5(A) mandatory arbitration provision does not
apply to the Three Year Rule is confirmed by the absence of
any apparent means to challenge the application of the Three
Year Rule. Section 2(G) of the NFLPA Contract Advisor
Regulations provides that “[t]he Certification of any
Contract Advisor who has failed to negotiate and sign a
player to an NFL Player Contract (excluding Practice Squad
Contracts) for at least one NFL player during any three-year
period shall automatically expire at the end of such
three-year period.” Further, the CBA provides that
“[t]he NFLPA agrees that it shall not delete any agent
from its list until that agent has exhausted the opportunity
to appeal the deletion pursuant to the NFLPA's agent
regulation system, except: . . . (v) where the agent's
certification has expired due to the agent's inactivity
in individual contract negotiations.” ...