Show me the . . . ethics?: The implications of the Model Rules of ethics on attorneys in the sports industry

Georgetown Journal of Legal Ethics, The, Summer 2003 by Barner, Tamara L

INTRODUCTION

The Models Rules of Professional Conduct were created as a means to implement standards of conduct for all attorneys across the nation.1 They represent a responsible approach to the ethical practice of law and are consistent with professional obligations imposed by, for example, constitutional, corporate, tort, fiduciary and agency law.2 Application of these rules adds a further measure of protection and enforcement for clients who have sought the counsel of an attorney. The client is afforded the remedy of pursuing a malpractice suit against the attorney which could provide for suspension and disbarment if they show that the attorney has violated any of the required Rules.3 For an attorney, the potential threat of disbarment or a malpractice suit works as a motivation to further ensure that they treat each and every client with fairness and within the auspices of all rules and statutory regulations.4 However, these additional rules that apply only to licensed attorneys may work to the attorneys' and clients' disadvantage in fields where attorneys compete for business with non-attorneys, such as in the sports representation field.

The sports representation field has grown significantly in the past several years due to huge increases in athletes' salaries, the advent of free agency, and the growing number of companies seeking athletes for endorsements.5 States and players' associations have made active attempts to regulate the representatives working in the field to ensure that athletes are adequately protected from unscrupulous agents.6 The state statutes and association regulations place registration requirements on all representatives seeking to have athletes as clients and also offer civil, and sometimes criminal, penalties when the agent is found to have violated any of their rules.7 Athlete representation is currently provided by a mix of both attorney and non-attorney representatives. The state statutes and player association rules apply equally to both to ensure that all athletes, regardless of their representation, are adequately protected. But, the Model Rules only apply to attorneys.

Part I of this Note will assess the differences between agents and lawyers in the sports representation field. Part II of the Note focuses on three of the Model Rules that specifically affect the services provided by sports attorneys: Rule 1.5 (Fees), Rule 1.7 (Conflicts of Interests), and Rule 7.3 (Direct Contact with Prospective Clients). These parts attempt to point out the possible advantages and disadvantages to applying the Model Rules on attorneys in the field of sports in regard to their effect on the attorneys' parity with sports agents as well as their effect on the athlete-clients. Within Part III, Section A assesses the impact recent State Sports Agent Statutes have had on sports representatives, while Section B assesses the developments in Players' Association agent requirements. Finally, Part IV attempts to bring all the current developments into perspective to show whether the application of the Model Rules on sports attorneys is advantageous. The question focused on throughout the Note is whether it is necessary to apply the additional requirements of the Model Rules to the attorneys operating in this field. Or, does this application create disadvantages not only to the attorneys, but also to the athletes seeking reliable and honest counsel?

I. APPLYING THE MODEL RULES TO SPORTS LAWYERS

A. DIFFERENCES BETWEEN AGENTS AND SPORTS LAWYERS

Because both attorneys and non-attorneys populate the sports representation field, it is important to look at the difference between the two. Agency law requirements apply equally to both groups, however, the attorney would have the additional burden of following the Model Rules if they are applied to attorneys in the field. "Agency" has been defined as a fiduciary relationship between two people, where one party is consenting to allow the other to act on its behalf and the other party agrees to do so.8 To become an agent in some states, one is required to register with a state agency by submitting a brief informational request and to pay a fee9; the majority of states have far more minimal requirements.10 For the states requiring registration, the applications do not state a required level of education or training to act as an agent, but some require disclosure of past employment history and experience, prior criminal conduct, and character references.11

Professional players' associations also have separate requirements for those wanting to represent athletes who are members of their unions.12 An agent typically must register and achieve certification from the association, pay a fee, attend mandatory annual seminars, and use required standard contracts.13 The National Football League Players Association (NFLPA) requires the applicant to have a four-year degree and pass a written, though open-book, examination.14 The National Basketball Players Association (NBPA) only requires a four-year degree for certification and the National Hockey League Players Association (NHLPA) and Major League Baseball Players Association (MLBPA) and have no minimum educational requirements.15