Players1st Sports Management Group - SMG et al v. National Football League et al

Filing 32

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. The NFLPA's 16 Motion to Compel Arbitration and Dismiss the Complaint or, in the Alternative, to Dismiss the Complaint for Failure to State a Claim is ALLOWED in part, insofar as it requests dismissal of Dickey's Complaint for failure to state a claim, and DENIED in part ,insofar as it requests an order compelling arbitration. The NFL and NFLMCs 23 Motion to Dismiss the Complaint is ALLOWED in its entirety.(DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES DICKEY, also known as
Players1st Sports Management Group - SMG,

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Plaintiff,
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v.
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NATIONAL FOOTBALL LEAGUE,
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NATIONAL FOOTBALL LEAGUE
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MANAGEMENT COUNCIL, and NATIONAL *
FOOTBALL LEAGUE PLAYERS
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ASSOCIATION,
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Defendants.
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Civil Action No. 17-cv-12295-IT

MEMORANDUM AND ORDER
September 26, 2018
Plaintiff 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.

I.

Background
a. Facts Relevant to the Motion to Dismiss 1

The NFL 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.
Pursuant 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. § 3.
Dickey 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
1

A court resolving a motion to dismiss accepts as true all factual allegations in the complaint and
draws all reasonable inferences in favor of the plaintiff. See Airframe Sys., Inc. v. Raytheon Co.,
601 F.3d 9, 11 (1st Cir. 2010).
2

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.
Dickey 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.
b. Additional Facts Relevant to the Motion to Compel Arbitration2
The “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]. 3 The “Three Year Rule” provision of these Regulations provides: “[t]he

2

For purposes of deciding a motion to compel arbitration, the court will consider facts alleged in
the Complaint as well as the documents submitted by the parties in connection with the motion.
See Soto v. State Indus. Prods., Inc., 642 F.3d 67, 72 n.2 (1st Cir. 2011) (court can consider
documents outside scope of complaint in deciding motion to compel arbitration).
3

The NFLPA Contract Advisor Regulations state that the regulations adopted in 2011 were
amended in August 2016. Dickey was certified prior to August 2016. Thus, the 2011 version of
the regulations would have been in effect at the time of his application. No party has raised any
issue, however, as to any differences between the 2011 and 2016 versions. Accordingly, the
3

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).
Appendix 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].
On 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 agents. Id.

court proceeds based on the 2016 version presented to the court.
4

II.

Motion to Compel Arbitration

The 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 omitted).
The 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 A.4 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.
The 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
4

The NFLPA also proffers Dickey’s request for a hearing as support for its motion. Aff. of
Jonathan J. Amoona Ex. C (“September 2016 Emails”) [#18-3]. That request did not invoke any
specific arbitration procedures, and did not separately affirm an agreement to arbitrate.
Accordingly, that request does not itself evidence an agreement to use arbitration as the exclusive
method for resolving his dispute.
5

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 certification.
The 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 individual players.
Id. §1(B). As Dickey highlights, Section 5(A)(4) applies only to disputes over a Contract
6

Advisor’s activities, and not to disputes over the NFLPA’s actions.
Moreover, the arbitration provision in § 5(A)(4), like the provision in §§ 5(A)(2), (3), (5)
and (6), 5 and 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.

5

Sections 5(A)(2)-(6) provide:
This arbitration procedure shall be the exclusive method for
resolving any and all disputes that may arise from the following:
…
(2) Any dispute between an NFL player and a Contract Advisor
with respect to the conduct of individual negotiations by a Contract
Advisor;
(3) The meaning, interpretation or enforcement of a fee agreement;
(4) Any other activities of a Contract Advisor within the scope of
these Regulations;
(5) A dispute between two or more Contract Advisors with respect
to whether or not a Contact Advisor interfered with the contractual
relationship of a Contract Advisor and player . . . ;
(6) A dispute between two or more Contract Advisors with respect
to their individual entitlement to fees owed, whether paid or unpaid,
by a player-client . . . .

NFLPA Contract Advisor Regulations § 5(A)(2)-(6).
7

That 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.” 2011 CBA Art. 48, § 1. No provision in either the
CBA or the Regulations provides any avenue for challenging this automatic expiration. As such,
§ 5(A)’s arbitration mandate does not apply to expirations under the Three Year Rule.
For each of these reasons, the NFLPA’s motion is denied insofar as it seeks to compel
arbitration pursuant to the Federal Arbitration Act.
III.

Motions to Dismiss for Failure to State a Claim

All Defendants move to dismiss Dickey’s Complaint in its entirety for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 559 (2007)). A court resolving a motion to dismiss accepts as true all
factual allegations in the complaint and draws all reasonable inferences in favor of the plaintiff.
Id. at 678-79. When, as here, a plaintiff files a complaint pro se, the court reads the allegations in
the complaint more liberally. See Rodi v. Southern New England Sch. Law, 389 F.3d 5, 13 (1st

8

Cir. 2004). While courts are generally limited to the complaint in deciding motions to dismiss, a
narrow exception exists for, inter alia, “documents sufficiently referred to in the complaint.”
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). Because Dickey’s Complaint repeatedly
references the CBA, it will be considered in deciding Defendants’ motions to dismiss.
a. Federal Antitrust Claims
Dickey claims all Defendants are violating federal antitrust laws by “unreasonably
limiting the fair and equitable competition” between Contract Advisors and “weaken[ing] the
basis for a free and competitive economy for true agents.” Compl. ¶¶ 31-32. According to
Dickey, the Three Year Rule is an artificial barrier to entry for new agents seeking to represent
NFL players. Additionally, he claims that all three Defendants selectively enforce the Three Year
Rule in a discriminatory way to the benefit of more established agents. Dickey contends that the
establishment and enforcement of the Three Year Rule undermines free competition of sports
agents in the professional football industry. According to Dickey, this violates the Sherman
Antitrust Act, 15 U.S.C. § 1 et seq., which prohibits any “contract, combination in the form of
trust or otherwise, or conspiracy, in restraint of trade or commerce.” Dickey also contends that
this conduct violates the Clayton Antitrust Act of 1914, 15 U.S.C. § 1 et seq.
Defendants vigorously dispute that Dickey has standing to bring these antitrust claims
and that the facts alleged state claims for antitrust violations absent an exemption. The court need
not address those issues, however, as the anticompetitive activities Dickey alleges fall within the
labor exemptions to the antitrust laws. As the Supreme Court has recognized, “there is an
inherent tension between national antitrust policy, which seeks to maximize competition, and
national labor policy, which encourages cooperation among workers to improve the conditions of
employment.” H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 713 (1981).

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“To balance the competing federal policies supporting organized labor on one hand and business
competition on the other, two labor exemptions from the antitrust laws have been developed, one
statutory and one nonstatutory.” American Steel Erectors, Inc. v. Local Union No. 7, Int’l Ass’n
of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 76 (1st Cir. 2008).
Dickey’s antitrust claims challenge both the NFLPA Contract Advisor Regulations and
the CBA. His challenges to the NFLPA’s unilateral enforcement of its Contract Advisor
Regulations are covered by the statutory labor exemption. His challenges to all Defendants’ joint
enforcement of the CBA are covered by the nonstatutory labor exemption.
i.

Antitrust Challenges to the NFLPA Regulations

Dickey challenges the application of the NFLPA Contract Advisor Regulations insofar as
those Regulations provide for automatic expiration of certification under the Three Year Rule.
This challenge is covered by the statutory labor exemption, which derives from “three interlacing
statutes” – the Sherman Act, the Clayton Act, and the Norris-LaGuardia Act – and insulates
union activity from antitrust challenges “[s]o long as a union acts in its self-interest and does not
combine with non-labor groups.” United States v. Hutcheson, 312 U.S. 219, 232 (1941). There is
no dispute that the NFLPA is a labor union, as Dickey so alleges. See Compl. ¶ 2. The question
is whether it acted in its self-interest and whether it combined with non-labor groups.
By allowing agents to represent individual players, the NFLPA delegates some of its
responsibilities as the exclusive representative of NFL players. Requirements and restrictions
that the NFLPA imposes on its agents are designed to ensure that those to whom the union
delegates these responsibilities meet certain standards. These include, for example, regulations
designed to ensure agents’ knowledge of and ability to faithfully apply the CBA, protect against
misconduct, and prevent the charging of excessive fees. The Regulations expressly state that

10

their purpose is “to help assure that the Contract Advisor will provide effective representation at
fair, reasonable, and uniformly applicable rates to those individual players the Contract Advisor
represents.” NFLPA Contract Advisor Regulations § 3. The Three Year Rule is an integral part
of these standards, as it requires agents to demonstrate their qualifications to represent NFLPA
members by either (1) successfully negotiating at least one contract or (2) obtaining
recertification. In these ways, the Regulations and Three Year Rule contained therein are “clearly
designed to promote the union’s legitimate self-interest.” H.A. Artists, 451 U.S. at 721; see also
Collins v. Nat’l Basketball Players Ass’n, 850 F. Supp. 1468, 1477 (D. Colo. 1991) (restrictions
governing sports agents in professional basketball furthered union’s self-interest).
Further, insofar as it enforced its own Contract Advisor Regulations, the NFLPA did not
combine with non-labor groups. While Dickey’s claims are based on the alleged joint action of
all Defendants in preventing agents whose certification had expired from representing NFLPA
members, the union exercises exclusive control over how and whether an agent’s certification is
deemed expired. Nowhere in his Complaint does Dickey plausibly allege that the NFL or
NFLMC enacted or implement the NFLPA’s Contract Advisor Regulations. Thus, to the extent
Dickey challenges the NFLPA’s unilaterally implemented regulations, these challenges fall
squarely within the statutory exemption. See H.A. Artists, 451 U.S. at 719-22 (holding similar
claims by theatrical agents challenging restrictions on agents that were unilaterally imposed by
union representing stage actors and actresses fell within statutory exemption).
ii.

Antitrust Challenges to the CBA

Not all of Dickey’s antitrust claims target NFLPA regulations. Some challenge
enforcement of the CBA. Restraints of trade imposed through a collective bargaining agreement
do not qualify for the statutory exemption, because a collective bargaining agreement represents

11

a combination between a labor union and a non-labor group – in this case, the NFLMC. See
American Steel Erectors, 536 F.3d at 77. Yet precisely because so much union activity takes
place through the collective bargaining process, courts developed a nonstatutory exemption to
the antitrust laws. “The nonstatutory exemption shields some restraints on competition imposed
through the bargaining process, where the alleged anticompetitive conduct is anchored in the
collective-bargaining process, concerns only the parties to the collective bargaining relationship,
and relates to wages, hours, conditions of employment, or other mandatory subjects of collective
bargaining.” Id. This exemption governs Dickey’s CBA-based antitrust claims.
Three of these requirements easily apply here. NFLPA certification of players’ agents is
“in accordance with its role as exclusive bargaining agent for NFL players.” 2011 CBA Art. 48,
214. Certification ensures that agents properly apply the CBA’s provisions governing players’
wages and other conditions of employment to NFLPA members’ individual contracts with NFL
clubs. While the CBA requires the NFL Commissioner to disapprove player contracts negotiated
by agents who fail to satisfy the NFLPA’s requirements, it makes clear that it is the NFLPA that
retains “sole and exclusive authority to determine the number of agents to be certified, and the
grounds for withdrawing or denying certification of an agent.” Id. Enforcement of NFLPA
certification requirements, including the Three Year Rule, is therefore a form of restraint
imposed through the bargaining process; anchored in that process; and designed to implement
the union’s bargained-for wages, hours, and other conditions of employment.
As for whether “the alleged anticompetitive conduct . . . concerns only the parties to the
collective bargaining relationship,” Dickey argues that because the conduct he challenges affects
competition among agents, and does not involve a dispute between the NFL and the players, the
conduct is not exempt from antitrust scrutiny. This argument fails, because there is no relevant

12

anticompetitive activity absent an alleged restraint within the business market in which the NFL
operates. As the Second Circuit stated in Clarett v. National Football League, 369 F.3d 124, 143
(2d Cir. 2004), where it held that the nonstatutory exemption governed an antitrust challenge to
eligibility rules for the NFL’s player draft, “[t]his is simply not a case in which the NFL is
alleged to have conspired with its players union to drive its competitors out of the market for
professional football.” Instead, “the only alleged anticompetitive effect of the challenged
restraint is on a labor market organized around a collective bargaining relationship.” Id. at 134.
To the extent Dickey’s allegations regarding anticompetitive conduct concern any market
beyond the market for NFL players’ agents, such allegations are too vague to support a plausible
claim for relief. See Compl. ¶ 31(a) (Defendants’ conduct gives unfair advantage to the
“competitors in the business industry of the NFL”); id. ¶ 31(d) (“Defendants are violating the
basic rules of anti-competitive conduct in the business activities of the NFL in a discriminatory
manner . . . .”); id. ¶ 31(e) (Defendants are violating their duty to “honor the integrity of a free
enterprise system and not allow for artificial barriers to exist to thwart competition in the
industry and business of NFL activities.”). These “wholly conclusory” allegations are
insufficient to survive Defendants’ motions to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 561 (2007).
This leaves Dickey’s numerous allegations regarding Defendants’ anticompetitive
conduct within the market for those seeking to represent NFLPA members. These include, for
example, the allegations that Defendants’ conduct is preventing “fair and equitable competition
of all Certified Agent[s] in the NFL’s market economy,” Compl. ¶ 31(a) (emphasis added),
“unreasonably limiting the fair and equitable competition between Certified Agent[s] in the
industry,” id. ¶ 31(b) (emphasis added), and creating “an artificial ‘three-year rule’ barrier to the

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qualifications and continual certifications of true agents,” id. ¶ 31(c) (emphasis added).
Application of the nonstatutory labor exemption to the anticompetitive conduct alleged
here fits squarely within the goals of federal labor law. The CBA Preamble confirms that the
NFLPA is “the sole and exclusive bargaining representative of present and future employee
players in the NFL.” Section 9(a) of the National Labor Relations Act (“NLRA”) states:
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other
conditions of employment.
29 U.S.C. §159(a). As the exclusive representative of NFL players, the NFLPA has the statutory
authority to limit the ability of its members to negotiate with their employers – here, the clubs –
through representatives other than the NFLPA or those the NFLPA approves.
The entire “market” in which Dickey seeks to compete, and within which Defendants’
alleged anticompetitive conduct occurs, exists solely by virtue of the NFLPA’s § 9(a) status. This
market is not intended to be a competitive one, at least not outside the context of a representation
or decertification election under the NLRA. Because the NFLPA is the majority-elected
exclusive representative of all NFL players, labor law does not provide Dickey with any
authority to represent those players except that which the NFLPA – in its sole discretion –
delegates to him. See, e.g., Clarett, 369 F.3d at 139 n.16 (ability of unionized players to negotiate
individually with teams is “not an exercise of a right to free competition under the antitrust laws;
rather, it is an exercise of a right derived from collective bargaining itself” (quoting Caldwell v.
Am. Basketball Ass’n, Inc., 66 F.3d 523, 528 (2d Cir. 1995))); White v. Nat’l Football League,
92 F. Supp. 2d 918, 924 (D. Minn. 2000) (“Player agents are permitted to negotiate player
contracts in the NFL only because the NFLPA has delegated a portion of its exclusive
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representational authority to them.”). Labor law explicitly confers on the NFLPA the
“representational monopoly” that Dickey challenges as anticompetitive.
Thus, while the Three Year Rule and other restrictions are imposed on NFLPA agents
who are not parties to the CBA, those restrictions affect only those who seek to act within the
space statutorily designated to the NFLPA as the exclusive representative of all NFL players.
Application of the antitrust laws to prevent the NFLPA from regulating its own members’ agents
would conflict with the system of exclusive representation established in § 9(a), while producing
no direct competitive benefit in the relevant business market for professional football. This is
precisely the type of labor market activity that the nonstatutory labor exemption shields from
antitrust liability. See American Steel Erectors, 536 F.3d at 79 (“The case for the applicability of
the nonstatutory exemption is strongest where the alleged restraint operates primarily in the labor
market and has only tangential effects on the business market.”). Accordingly, Dickey’s antitrust
challenges to the enforcement of the CBA fall within the nonstatutory labor exemption. 6
b. State-Law Claims
Dickey’s Complaint also asserts state-law claims for breach of contract, breach of the
implied covenant of good faith and fair dealing, and breach of fiduciary duty against the NFLPA,
NFLMC, and NFL. Dickey’s state-law claims are based on the CBA, the NFLPA Contract
Advisor Regulations, and an implied contract and duty of good faith and fair dealing that
allegedly arose when Dickey paid an initial certification fee to the NFLPA.

6

Count Three of the Complaint also purports to assert a claim for “wrongful collusion.” Compl.
¶ 32. It is unclear what Dickey meant by this allegation, and whether he intended to assert a
federal or state-law claim for wrongful collusion. The only legal citations in Count Three are to
the Sherman Antitrust Act and the Clayton Antitrust Act, and the factual allegations in Count
Three are the same as those used to support the federal antitrust claims. Therefore, the court
construes Dickey’s wrongful collusion claim as a reiteration of his federal antitrust claims.
15

Nearly all of Dickey’s state-law claims are based on the CBA. See, e.g., Compl. ¶ 30(a)
(“Defendants are acting in concert to violate its [sic] own CBA.”); id. ¶ 30(f) (Defendants are
“allowing various agents and sports agency firms to violate the rules and regulations of the CBA
and NFLPA.”); id. ¶ 30(k) (“Defendants have violated their agreement, expectations and
fiduciary duty to the Plaintiff(s) to operate in good faith and honor the same rules and regulations
as promulgated in the CBA.”). Dickey’s contractual claims based on violations of the CBA are
preempted by § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185. As the Supreme
Court has held, “the pre-emptive force of § 301 is so powerful as to displace entirely any state
cause of action for violation of contracts between an employer and a labor organization.”
Caterpiller, Inc. v. Williams, 482 U.S. 386, 394 (1987) (quotations omitted). Section 301
preempts Dickey’s claims to the extent they “necessitate[] analysis of, or substantially depend[]
on the meaning of, a collective bargaining agreement.” Quesnel v. Prudential Ins. Co., 66 F.3d 8,
10 (1st Cir. 1995). 7 Each of his CBA-based claims falls into this category.
To the extent Dickey’s claims are based on other agreements he may have had with
Defendants, such as the NFLPA Regulations and his payment of a fee upon initial certification,
these claims appear to be based on alleged individual contracts between Dickey and the NFLPA
that are not preempted by § 301. See Williams, 482 U.S. at 394 (“Section 301 says nothing about

7

Even if Dickey’s claims based on the CBA were not preempted, he has failed to state a claim
upon which relief may be granted as to the CBA. According to Dickey’s own allegations, the
CBA is an agreement “between the NFL and NFLPA.” Compl. ¶ 6. Dickey writes in his
opposition to Defendants’ motions to dismiss that “the matter before this court simply stems
from whatever authority that has been agreed upon between the NFL and NFLPA under the
CBA.” See Return to NFLPA Mots. to Compel & Dismiss Compl. 3 [#28]. Dickey has not
alleged that he is a party to the CBA, and has not pleaded any facts showing that he is otherwise
entitled to enforce the terms of that contract as an intended beneficiary. Thus, he has not shown
that the CBA was a valid contract between him and any of the three Defendants.
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the content or validity of individual employment contracts.”). So long as any of these claims
based on the Regulations and fee payment “can be resolved without interpreting the [collective
bargaining] agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption
purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410 (1988).
Insofar as Dickey’s non-CBA state-law claims target the NFLPA’s representational
structure, however, those claims are preempted by § 9(a) of the NLRA. State law “causes of
action are presumptively preempted if they concern conduct that is actually or arguably either
prohibited or protected by the [NLRA].” Belknap, Inc. v. Hale, 463 U.S. 491, 498 (1983). Claims
between two competing unions seeking to represent a bargaining unit involve conduct governed
by the NLRA’s system of exclusive representation, and are thus preempted by § 9(a). See, e.g.,
Pennsylvania Nurses Ass’n v. Pennsylvania State Educ. Ass’n, 90 F.3d 797, 802 (3d Cir. 1996).
As discussed supra, the NFLPA is the exclusive representative of all NFL players. Certified
agents’ authority to represent NFL players in negotiating with NFL clubs exists solely by virtue
of the NFLPA’s discretionary decision to delegate some of its § 9(a) authority to those agents.
Section 9(a) thus preempts Dickey’s challenges to the methods by which the NFLPA delegates
this authority, which are governed by the NLRA’s system of exclusive representation.
To the extent Dickey’s claims are akin to those brought by an agent (as in an agent of the
NFLPA, rather than a player’s “certified agent”) against the NFLPA in the role principal (as
opposed to in its role as a labor union), those claims fail on the merits. To succeed on a breach of
contract claim, Dickey must “show that (1) a valid contract between the parties existed, (2) the
plaintiff was ready, willing, and able to perform, (3) the defendant was in breach of the contract,
and (4) the plaintiff sustained damages as a result.” Bose Corp. v. Ejaz, 732 F.3d 17, 21 (1st Cir.
2013). Drawing all reasonable inferences in Dickey’s favor, the Complaint alleges the existence

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of the following contract between the NFLPA and Dickey: Dickey paid to become certified as a
Contract Advisor, and in exchange, the NFLPA agreed to abide by its Contract Advisor
Regulations. 8 Dickey, however, has not alleged a breach of any obligation in those Regulations.
Had Dickey challenged a denial or revocation of certification, which he has not done, that might
constitute a breach, but such a challenge would be subject to the arbitration agreement. Instead,
Dickey’s alleged breach is the expiration of his certification. Application of the Three Year Rule
represented the fulfillment, rather than a breach, of the NFLPA Contract Advisor Regulations.
Dickey has not alleged any facts showing that he was able to perform his side of this contractual
bargain by negotiating a contract to an NFL club’s active roster during his first three years of
certification. Instead, Dickey complains that the NFLPA enforced its regulations against him
while permitting other agents to satisfy the Three Year Rule by jointly negotiating individual
player contracts with more established agents. Dickey does not allege that the NFLPA failed to
do something it agreed to do. As such, Dickey’s contractual claims fail on the merits.
Finally, all of Dickey’s claims for breach of fiduciary duty must be dismissed because he
has not alleged the existence of any fiduciary relationship between himself and any Defendant.
To state a claim for breach of fiduciary duty, a plaintiff must first allege the “existence of a
fiduciary duty arising from a relationship between the parties.” De Prins v. Michaeles, 189 F.
Supp. 3d 209, 214 (D. Mass. 2016). “A fiduciary duty exists when one reposes faith, confidence,
and trust in another’s judgment and advice.” Doe v. Harbor Sch., Inc., 843 N.E.2d 1058, 1064

8

To the extent Dickey asserts that his payment of a fee obligated Defendants to abide by any
obligations beyond the NFLPA Contract Advisor Regulations, his Complaint fails to sufficiently
allege such an agreement. Further, to the extent that this contract based on the payment of a fee
obligated any of the Defendants to comply with the NFLPA Contract Advisor Regulations, it
obligated only the NFLPA. Dickey fails to offer any plausible factual allegation supporting his
assertion that he had an agreement with the NFL or NFLMC.
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(Mass. 2006) (internal quotations omitted). Dickey’s conclusory allegation that Defendants
breached their fiduciary duty is insufficient to survive a motion to dismiss. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Beyond that assertion, Dickey fails to allege any facts showing that he
had a relationship with any of the three Defendants giving rise to fiduciary duties.
IV.

Conclusion

For the foregoing reasons, the NFLPA’s Motion to Compel Arbitration and Dismiss the
Complaint or, in the Alternative, to Dismiss the Complaint for Failure to State a Claim [#16] is
ALLOWED in part, insofar as it requests dismissal of Dickey’s Complaint for failure to state a
claim, and DENIED in part, insofar as it requests an order compelling arbitration. The NFL and
NFLMC’s Motion to Dismiss the Complaint [#23] is ALLOWED in its entirety.
IT IS SO ORDERED.
Date: September 26, 2018

/s/ Indira Talwani
United States District Judge

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