Wannabe NBA Agent’s Suit Stiff-Armed by Union in Appeals Court

Ever thought about becoming a sports agent? A new federal appeals court ruling makes clear that players’ unions are the ultimate gatekeepers of the profession.

On Dec. 30, the U.S. Court of Appeals for the Sixth Circuit rejected aspiring NBA player agent Rosel Hurley’s federal antitrust lawsuit against the National Basketball Players’ Association and the NBA. Two years ago the NBPA, which oversees the certification of NBA agents, denied Hurley a chance to take its agent certification online exam. In court documents the NBPA says Hurley “is a convicted felon who had his law license repeatedly suspended,” including for an alleged “attempt to mislead and intimidate small businesses into paying him money.”

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But Hurley argued he had disclosed to the NBPA that his law license had been suspended and an NBPA employee seemed unconcerned by it, instead asking him about it about a past bankruptcy that had been discovered in a background check. As Hurley tells it, NBPA staff assured him in December 2020 that he would be able to take the exam, which is offered only once a year and was to be administered a few months later. Hurley was surprised when, two days before the test date, the NBPA denied him eligibility on account of his law license suspension.

Hurley then sued the NBPA and the NBA, claiming they had unlawfully conspired to exclude him. The union and league flatly disputed the allegations. The NBPA also maintained that any disagreement over a denied agent application must be heard by an arbitrator, while the NBA stressed that Hurley’s complaint curiously “does not allege that anyone at the NBA had any role at all in the Players Association’s decision” and “does not allege a single act at all taken by anyone at the NBA.” A federal judge dismissed Hurley’s lawsuit, and he appealed.

Writing for a three-judge appellate panel, Judge Chad Readler found “basic principles of antitrust law foreclose Hurley’s claims.” One principle, Readler wrote, is that labor unions are “broadly exempted” from antitrust scrutiny. For that reason, there was “no basis for imposing antitrust liability against the NBPA alone.”

Readler also deemed an alleged conspiracy between the NBPA and NBA to lack merit. Hurley maintained that shifting reasons for the rejection “would cause a reasonable person to believe that [the] NBPA was acting in concert with a non-union member to boycott” him. Readler wasn’t persuaded. He wrote that the court “need not credit this conclusory statement as true,” since there’s no known reason to believe the NBPA and NBA “impermissibly conspired” to deny Hurley’s application.

The judge added that the NBA and NBPA’s collective bargaining is guided by “the purpose of protecting players from unscrupulous agent behavior.” The NBPA has the authority to decide who can negotiate contracts on behalf of players and who can be entrusted with those players’ professional well-being. Moreover, under labor law, NBA teams can only negotiate contracts with player agents who are NBPA-certified.

Hurley, Readler noted, might still pursue “whatever arbitration rights he previously possessed.” However, that pursuit would be up to Hurley, not the court.

Hurley may never live out his dream of representing NBA players, but he will remain an important figure in the law. Hurley v. NBA & NBPA sets precedent: Antitrust law doesn’t protect would-be agents from unions and player’s associations.

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