Wasserman Media Group, LLC v. Bender
Filing
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MEMORANDUM OPINION AND ORDER: For the reasons set forth above, WMG's petition to confirm the arbitration award is granted. The Clerk of the Court is directed to close this motion [docket #1] and this case. (Signed by Judge Shira A. Scheindlin on 5/13/2011) (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
._--------------------------------------------------
)(
WASSERMAN MEDIA GROUP, LLC,
MEMORANDUM OPINION
AND
ORDER
Petitioner,
- against-
10 Civ. 8783 (SAS)
JONATHAN BENDER,
Respondent .
_--------------------------------------------------
.
)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
Wasserman Media Group, LLC ("WMG") petitions this Court
pursuant to the Federal Arbitration Act ("FAA,,)1 to confirm an arbitration award
issued pursuant to the National Basketball Players Association Regulations
Governing Player Agents ("NBPA Regulations,,)2 against Jonathan Bender, a
former National Basketball Association ("NBA") player. WMG also seeks the
award of attorneys' fees reasonably incurred in bringing this action. Bender has
See 9 U.S.C. § 9.
See NBP A Regulations, Ex. A to the 3/13/11 Declaration of Jason
Ranne, petitioner's counsel ("Ranne Decl.").
2
1
not responded to WMG's petition.
In 1999, Bender and WMG entered into an NBPA Standard Player
Contract pursuant to the rules and regulations of the NBPA Regulations. 3 Under
that agreement, WMG represented Bender throughout his NBA career. 4 On
October 30, 2009, Bender and WMG entered into an agreement whereby Bender
agreed to pay WMG $396,766.60 at scheduled intervals (the "Settlement
Agreement").5 In connection with the Settlement Agreement, Bender also agreed
that if "[WMG] should file a claim against me pursuant to [the NBPA Regulations]
... I acknowledge and agree that [WMG] may execute on a judgment immediately
for such Unpaid Fees, and I will not attempt to attack, vacate, appeal, stay, or
otherwise set aside such judgment against me .... "6 Bender subsequently failed
to comply with the payment schedule pursuant to the Settlement Agreement. 7
On August 10, 2010, WMG filed a grievance pursuant to the NBPA
Regulations, which provided that arbitration be the "exclusive method for
'3.
3
See id.
4
See id.
5
See 10/30109 Settlement Agreement and Release, Ex. B to the Ranne
Decl., at 1.
6
10/29/09 Letter from Bender to Am Tellum, Agent for WMG, Ex. C
to the Ranne Decl.
7
See Ranne Decl. , 6.
2
resolving any and all disputes" arising under the regulations. s The arbitration
agreement further provides that "[the] Award shall constitute full, final and
complete resolution of the grievance, and will be binding upon the player and the
player agent involved.,,9 WMG, the NBPA, and the arbitrator each notified Bender
ofWMG's grievance and upcoming arbitration. 1O None of the notifications elicited
a response from BendeL" On October 14, 2010, the arbitrator proceeded with the
arbitration hearing in Bender's absence. '2 The arbitrator found in favor of WMG
and ordered payment in the amount of$396,766.60 within ten daysY To date,
Bender has not paid any portion of the award despite being notified of the result. 14
8
NBPA Regulations at 21.
9
Id. at 23.
See 8/20/10 Letter from Jason Ranne to Jonathan Bender, Ex. 0 to the
Ranne Decl.; 8/2411 0 Letter from Yared Alula, counsel for NBP A, to Bender, Ex.
E to the Ranne Decl.; Arbitration Opinion and Award, Ex. F to the Ranne Decl., at
1 (noting that arbitrator "advised Player Bender that a response ... had to be filed
no later than September 27, 2010").
10
II
See Ranne Decl.' 10.
The NBPA Regulations provide that "[i]f an Answer is not filed
within [thirty days], the Arbitrator, in his discretion, may issue an order where
appropriate, granting the grievance and the requested relief upon satisfactory proof
of claim." NBP A Regulations at 22.
12
13
See Arbitration Opinion and A ward.
14
See Ranne Decl. " 12-13.
3
II.
APPLICABLE LAW
A.
Confirmation of Arbitration Awards
Section 9 of the Federal Arbitration Act ("FAA") provides:
If the parties in their agreement have agreed that ajudgment ofthe
court shall be entered upon the award made pursuant to
arbitration, and shall specify the court, then at any time within one
year after the award is made any party to the arbitration may apply
to the court so specified for an order confirming the award, and
thereupon the court must grant such an order unless the award is
vacated, modified, or corrected as prescribed in sections 10 and 11
of this title. 15
Therefore, in addition to subject-matter jurisdiction, the FAA imposes upon courts
an additional jurisdictional requirement that the parties "agree[] that judgment shall
be entered upon the award."16 Such an agreement, however, need not be express
and may be implied from the language of the arbitration agreement and the conduct
of the parties. Where the parties expressly agree that the arbitration will be final or
binding and that federal law should control, the Second Circuit has found an
implied agreement to have an arbitration award submitted to a federal court's
15
9 U.S.C. § 9 (emphasis added).
Varley v. Tarrytown, Inc., 477 F.2d 208,210 (2d Cir. 1973). Accord
Matter ofArbitration Between Kaystar Tarim Urunleri Sanayi Ve Ticaret Ltd. and
Spring Tree COlp., No. 96 Civ. 9392, 1997 WL 160639, at * 1 (S.D.N.Y. Apr. 7,
1997) ("The absence of such a provision can deprive a federal court of the power
to confirm an arbitration award under the federal Arbitration Act. ").
16
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jurisdiction. 17 Where the court has jurisdiction pursuant to diversity of citizenship,
courts have not required that the arbitration be controlled by federal substantive
law in order for a federal court to have the power to confirm an award. 18
The confirmation of an arbitration award is a '''summary proceeding
that merely makes what is already a final arbitration award a judgment of the
court. ",19 Because the court "must grant" the award "unless the award is vacated,
modified, or corrected,,20 the court should do so "if a ground for the arbitrator's
See liS Stavborg v. National Metal Converters, Inc., 500 F.2d 424,
426-27 (2d Cir. 1974) (finding implied agreement where parties agreed that award
"shall be final," dispute was governed by federal maritime law, and party disputing
confirmation had itself invoked the FAA and the aid of the district court); Kallen v.
District 119, Nat'l Union ofHosp. and Health Care Employees, 574 F.2d 723 (2d
Cir. 1978) (finding implied agreement where parties expressly agreed that award
would be final and conclusive and federal law applied to the interpretation of
collective bargaining agreements).
17
See, e.g., Waveform Telemedia, Inc. v. Panorama Weather N. Am.,
No. 06 Civ. 5270,2007 WL 678731, at *4 (S.D.N.Y.Mar. 2, 2007) (noting that
although state law applied, given the diversity of citizenship, parties must have
agreed to entry ofjudgment on the award by a federal court); The Home Ins. Co. v.
RHAIPa. Nursing Homes, 127 F. Supp. 2d 482,485 (S.D.N.Y. 2001) (holding that
diverse parties "must have contracted with reference to the availability of a federal
forum for enforcement of an award").
18
D.JI. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006)
(quoting Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984».
19
20
9 U.S.C. § 9.
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decision can be inferred from the facts of the case."21 "Only 'a barely colorable
justification for the outcome reached' by the arbitrator[] is necessary to confirm
the award."22 Moreover, a notice of a motion to challenge the award must be
served upon the opposing party within three months of the issuance of the award. 23
A failure to do so results in a waiver of the right to oppose the confirmation of an
award. 24
B.
Legal Fees and Costs
Generally, in the absence of statutory authority, a party may not
recover attorney's fees in a federal action and the FAA provides no such relief in
an action to confirm an award. However, because the court has the inherent
equitable power to assign attorney's fees where one party acts in bad faith,
"attorney's fees and costs may be proper when a party opposing confirmation of
arbitration award 'refuses to abide by an arbitrator's decision without
21
Barbier v. Shearson Lehman Hutton, Inc., 948 F.2d 117, 121 (2d Cir.
1991 ).
D.H Blair & Co., 462 F .3d at 110 (quoting Landy Michaels Realty
Corp. v. Local 32B-32J, Servo Employees Int'l Union, 954 F.2d 794, 797 (2d Cir.
1992)).
22
23
See 9 U.S.C. § 12.
See Florasynth, Inc., 750 F.2d at 174 ("[D]efendant's failure to move
to vacate the award within the three month time provided precludes him from later
seeking that relief when a motion is made to confirm the award.").
24
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justification. ",25 Where a party fails to both pay the award and challenge its
validity, such conduct may constitute bad faith.26
III.
DISCUSSION
A.
Confirmation of the Arbitration Award
Applying a deferential standard of review, I find clear grounds for
confirming the arbitration award. The parties are properly before this Court under
diversity jurisdiction and the arbitration agreement expressly states that any award
should be "final" and "binding" upon the partiesY Therefore, WMG and Bender
have implicitly agreed that the award be confirmed by a federal court as required
by section 9 of the FAA. Moreover, there is clear justification for the arbitrator's
decision. Bender signed a written agreement acknowledging that he owes WMG
the claimed amount. Nonetheless, he failed to adhere to the payment schedule and
25
New York City Dist. Council ofCarpenters Pension Fund v. Eastern
Millennium Constr., Inc., No. 03 Civ. 5122, 2003 WL22773355, at *2 (S.D.N.Y.
Nov. 21, 2003) (quoting International Chern. Workers Union v. BASF Wyandotte
Corp., 774 F.2d 43, 47 (2d Cir. 1985)).
See In Matter ofArbitration between Soft Drink and Brewery Workers
Union and Ali-Dana Beverages, Inc., No 95 Civ. 8081, 1996 WL 420209
(S.D.N.Y. July 25, 1996).
26
NBPA Regulations at 23. Although the arbitration agreement notes
that "it is the NBPA's intention that an Award issued by the arbitrator not be
subject to judicial review" WMG is not here seeking judicial review. Rather, it is
seeking to have confirmed what is already a final judgment of the arbitrator.
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ignored all notices that the matter was proceeding to arbitration. Finally, Bender
has waived any right to vacate the award by virtue of his failure to challenge the
award within ninety days as required by the FAA. Accordingly, I conclude that the
award should be confirmed.
B.
Legal Fees and Costs
In both the Settlement Agreement and in letters to WMG and the
NBP A, Bender has conceded that he owes WMG the amount claimed.
Nonetheless, he has repeatedly refused to pay. He failed to participate in the
arbitration proceedings despite notifications from WMG, the NBPA and the
arbitrator himself. He now refuses to pay the amount awarded in arbitration.
Consistent with his approach to this matter, Bender also declined to participate in
the instant proceeding. His continued refusal to either pay the amount owed or
challenge the validity of the claim amounts to bad faith. Accordingly, I conclude
that an award of$2,500 in attorney's fees and costs as sought by WMG in its
Petition is appropriate.
IV.
CONCLUSION
For the reasons set forth above, WMG's petition to confirm the
arbitration award is granted. The Clerk of the Court is directed to close this motion
[docket # 1] and this case.
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Dated:
New York, New York
May l3, 2011
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-Appearances-
Counsel for Petitioner:
Thomas James Fleming, Esq.
Christine Wing-Sei Wong, Esq.
Olshan Grundman Frome Rosenweig & Wolosky LLP
65 East 55th Street
New York, New York 10022
(212) 451-2300
(212) 451-2271
Respondent (Pro Se):
Jonathan Bender
3919 Falls Brook Court
Sugar Land, Texas 77479
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