Wichard v. Suggs

Filing 37

MEMORANDUM OPINION - For the foregoing reasons, the Court will confirm the arbitration award and deny the motion to stay claims pending arbitration. An appropriate Order shall issue. Signed by District Judge James C. Cacheris on 03/24/2015. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MAIRE WICHARD, IN HER CAPACITY
AS EXECUTOR OF THE ESTATE OF
GARY WICHARD,
Petitioner,
v.
TERRELL SUGGS,
Respondent.

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M E M O R A N D U M

1:15cv3 (JCC/TCB)
1:15cv83 (consolidated case)

O P I N I O N

This matter is before the Court on a petition to
confirm an arbitration award under the Federal Arbitration Act
(“FAA”).

The underlying arbitration award involved a contract

dispute between Terrell Suggs, a professional football player,
and his former agent, Gary Wichard.

The arbitrator found in

favor of Mr. Wichard’s estate and awarded the estate $172,800.00
in agent fees for the 2013 season.

Two motions are currently

pending before the Court: (1) the estate’s motion to confirm1 the
arbitration award [Dkt. 2]; and (2) the estate’s motion to stay
certain claims raised by Mr. Suggs in his petition to vacate,
pending arbitration of those claims [Dkt. 19].
1

Mr. Suggs filed a petition to vacate the arbitration award,
which was consolidated with this matter. (See Pet. to Vacate
[Dkt. 1 in Case No. 1:15cv84].) The parties agree that the
petition to confirm and the petition to vacate necessarily
involve the same substantive issues of fact and law.
1

For the following reasons, the Court will confirm the
arbitration award and deny the motion to stay certain claims.
I. Background
A. Factual Background
From the 1980s until his untimely death after a
serious illness in March of 2011, Gary Wichard (“Mr. Wichard” or
“the agent”) was a certified National Football League Players
Association (“NFLPA”) Contract Advisor and a principal in the
sports management firm ProTect Management.

(Pet. to Confirm

Arbitration Award (“Pet. to Confirm”) [Dkt. 1]; Arbitrator’s
Opinion & Award (“Op. & Award”) [Dkt. 1-5] Ex. D at 4.)

The

conduct and services of Contract Advisors, colloquially known as
agents, are regulated by the NFLPA Regulations Governing
Contract Advisors (“the Regulations”).
[Dkts. 1-3, 1-4] Reg. § 3.)

(Pet. to Confirm Ex. C

Contract Advisors assist NFL

Players in, inter alia, contract negotiations with NFL teams.
(Reg. § (1)(B).)

Contract Advisors are prohibited from

negotiating on behalf of an NFL player, however, until the agent
and player have entered into a Standard Representation Agreement
(“SRA”).

(Id. at § 3(B)(1).)
On January 3, 2003, Mr. Wichard entered into an SRA

with Respondent Terrell Suggs (“Mr. Suggs” or “the player”), a
defensive end/linebacker from Arizona State University who was
preparing to enter the 2003 NFL Draft.
2

(Pet. to Confirm Ex. B

[Dkt. 1-2] (hereinafter “SRA”).)

SRAs are approved by the

NFLPA; in fact, the NFLPA logo is affixed at the top of the SRA
between Mr. Wichard and Mr. Suggs.

(Id.)

The SRA provided that

Mr. Wichard would “act[] in a fiduciary capacity on behalf of
[Mr. Suggs] . . . [and] represent, advise, counsel, and assist
[Mr. Suggs] in the negotiation, execution, and enforcement of
his playing contract(s) in the National Football League.”
at § 3.)

(Id.

“If [Mr. Wichard] succeed[ed] in negotiating an NFL

Player Contract acceptable to [Mr. Suggs],” Mr. Suggs agreed to
pay Mr. Wichard “a fee of three percent (3%) of the compensation
received by [Mr. Suggs] for each such playing season . . . .”
(Id. at § 4.)

Subsequently, after entering into the SRA, Mr.

Suggs was drafted by the Baltimore Ravens in the first round of
the 2003 NFL Draft.

(Op. & Award at 5.)

After early success in his professional football
career,2 on July 15, 2009, Mr. Suggs signed a five-year NFL
Player Contract with the Baltimore Ravens worth approximately
$62.5 million, which also included an option for the 2014 season
(“the 2009 Contract”).

(Op. & Award at 6; Pet. to Vacate

Arbitration Award [Dkt. 1 in Case No. 1:15cv83] (hereinafter
“Pet. to Vacate”) ¶ 14.)

In 2010, the Baltimore Ravens

2

Mr. Suggs played for the Baltimore Ravens from 2003 to 2009.
The terms of his contract during this time period are unclear
from the record, but not relevant for the disposition of this
matter.
3

exercised the option under Mr. Suggs’ 2009 Contract for the 2014
season, which in effect made the term of the contract six years
instead of five years, for the 2009 through 2014 NFL seasons.
(Pet. to Vacate ¶ 14.) There is no dispute that Mr. Wichard
negotiated the 2009 Contract on Mr. Suggs’ behalf.
On December 3, 2010, the NFLPA Committee on Agent
Regulation and Discipline (“CARD”) suspended Mr. Wichard’s
certification as a Contract Advisor for improper contact with a
prospective NFL player who, at the time, was ineligible to be
drafted.

(Op. & Award at 6.)

The nine-month suspension

prohibited Mr. Wichard from (1) recruiting and signing NFL
players to SRAs and (2) negotiating NFL Player Contracts with
NFL teams on behalf of NFL players.

(Id.)

The suspension did

not prevent Mr. Wichard from receiving fees or performing under
NFL Player Contracts that he previously negotiated, which
included the 2009 Contract.

(Id. at 6-7.)

to the terms of the suspension.

(Id. at 7.)

Mr. Wichard agreed
The same day, Mr.

Wichard sent a memorandum to all clients of ProTect Management,
advising them of the suspension, stating in part:
Absolutely nothing will change for any
existing clients.
I will still be able to
provide the EXACT same services as an agent
that I always have. I will still be able to
communicate with NFL teams on your behalf.
What I will not be able to do for nine
months is recruit new clients.
Once again,
I just want to stress that this suspension
will not affect existing clients in any way.
4

Please
have.

contact

me

with

any

concerns

you

(Id. at 7 (emphasis in original).)
Approximately four months later, on March 11, 2011,
Mr. Wichard died.

(Op. & Award at 8.)

On March 15, 2011,

ProTect Management sent a memorandum to all clients, which
stated in relevant part:
It was [Mr. Wichard’s] wish to keep ProTect
Management operating even after his [death].
In light of [Mr. Wichard’s] wishes we are
proud to announce that ProTect Management
will be honoring [Mr. Wichard] by continuing
to function as we have for [the] last three
decades.
As a certified NFL Contract
Advisor, Jason Chinn [(“Mr. Chinn”)] will
continue to run the day-to-day operations
for ProTect. As always, please feel free to
contact any of us with any questions or
concerns.
We really appreciate all of your
understanding and support.
(Id.)

On November 15, 2011, Mr. Suggs signed a new SRA with

Contract Advisor Joel Segal, who is not associated with ProTect
Management.3

(Id. at 9.)

Mr. Suggs was named the NFL’s

Defensive Player of the Year for the 2011 NFL season.

(Id. at

10.)
During the period of Mr. Wichard’s illness and/or
following his death, Mr. Suggs received two reprimands from the
Baltimore Ravens on October 8, 2010 and November 16, 2011.

3

(Op.

On February 17, 2014, Mr. Suggs signed a five-year NFL Player
Contract with the Baltimore Ravens that was negotiated by Mr.
Segal on Mr. Suggs’ behalf. (Id.)
5

& Award at 8.)

Mr. Suggs also received several fines totaling

$42,500 from the NFL for violations of the uniform rules, or as
penalties imposed for unnecessary roughness or grabbing the face
mask of an opposing player, in the following amounts on the
following dates: (1) $10,000 on December 7, 2010; (2) $15,000 on
January 4, 2011; (3) $7,500 on September 27, 2011; (4) $5,000 on
October 5, 2011; and (5) $5,000 on November 15, 2011.
8-9.)

Mr. Suggs did not appeal any of these fines.

(Id. at

(Id. at 9.)

It is undisputed that Mr. Suggs paid Mr. Wichard,
ProTect Management, or Mr. Wichard’s Estate the three-percent
fee under the SRA for the 2009, 2010, 2011, and 2012 NFL
Seasons, which was calculated based on the compensation that Mr.
Suggs received from the Baltimore Ravens for each individual
season.

(Op. & Award at 10; Pet. to Vacate at ¶ 23 (“From 2009

to 2012, Mr. Suggs continued to pay fees totaling $1,449,000 to
the Wichard Estate.”).)
On November 12, 2013, ProTect Management sent Mr.
Suggs an invoice for Contract Advisor fees in the amount of
$192,000, which constituted three percent of Mr. Suggs’
$6,400,000 compensation for the 2013 NFL Season.
at 10.)

(Op. & Award

Mr. Suggs played for the Baltimore Ravens during the

2013 NFL Season pursuant to the 2009 Contract negotiated by Mr.
Wichard.
(Id.)

(Id.)

This invoice remains unpaid by Mr. Suggs.

The amount allegedly owed under the unpaid invoice for
6

the 2013 NFL Season subsequently became the subject of the
underlying arbitration proceeding.
B. The Dispute
Under the Regulations, arbitration is the “exclusive
method for resolving any and all disputes” between NFL Players
and Contract Advisors.

(Reg. § 5(A).)

On March 1, 2014, and

pursuant to sections 5(A) and 5(B) of the Regulations,
Petitioner Maire Wichard, in her capacity as Executor of the
Estate of Mr. Wichard (“the Estate”), filed a grievance against
Mr. Suggs with the NFLPA for the amount of the unpaid invoice
from the 2013 NFL Season.

(Op. & Award at 11.)

In the

grievance, the Estate claimed that Mr. Suggs owed $192,000 in
Contract Advisor fees plus interest under the terms of the SRA,
and argued that nothing had occurred to invalidate his
obligation to pay.

(Id.)

On March 14, 2014, Mr. Suggs rejected the Estate’s
grievance in full and denied that the Estate was entitled to the
fee it claimed.

(Op. & Award at 11.)

Mr. Suggs filed a cross-

grievance against the Estate and ProTect Management.

(Id.)

Mr.

Suggs claimed that after Mr. Wichard’s death, he was left
without representation and without a fiduciary, which he had
bargained for in exchange for fee payments under the SRA.

(Id.)

Specifically, in his grievance, Mr. Suggs claimed he was harmed
in the following ways: (1) he was unable to reap any monetary
7

benefits from being named 2011 NFL Defensive Player of the Year
in the form of marketing or endorsement deals; (2) he did not
have a Contract Advisor to represent him and advise him
regarding the various fines he received; (3) he could not pursue
any possible marketing opportunities; and (4) he did not
renegotiate his contract with the Baltimore Ravens during the
peak of his performance in 2011.

(Id. at 10-12.)

On April 2, 2014, the Estate answered Mr. Suggs’
grievance, arguing (1) Mr. Suggs retained a new Contract Advisor
approximately three months before he was named 2011 Defensive
Player of the Year, and (2) any harm Mr. Suggs incurred between
Mr. Wichard’s death in March of 2011 and the hiring of a new
Contract Advisor in November of 2011 was attributable only to
Mr. Suggs’ failure to hire new representation.

(Id. at 12.)

Based on the inability of the parties to resolve the dispute,
the matter proceeded to arbitration to determine “[w]hat monies,
if any, does Terrell Suggs owe the Estate of Gary Wichard for
services rendered as his Contract Advisor during the 2013 NFL
Season?”

(Id. at 2.)
C. The Arbitration Proceeding
On September 23, 2014, the parties appeared before an

NFLPA-appointed arbitrator in Alexandria, Virginia to present
evidence in support of their grievances.

(Pet’r Reply in Supp.

of Pet. to Confirm Ex. H [Dkt. 25-1] (hereinafter “Hr’g Tr.”).)
8

The arbitrator received seventeen documentary exhibits and heard
oral testimony through direct and cross-examination of Ms.
Wichard and Mr. Suggs.
hearing briefs.

(Id.)

The parties also filed post-

On December 4, 2014, the arbitrator issued an

Opinion and Award sustaining the Estate’s grievance and denying
Mr. Suggs’ grievance.

(Op. & Award at 18-19.)

(Id. at 13-17.)

The arbitrator found that under the SRA, Mr. Wichard
was required to represent, advise, counsel, and assist Mr. Suggs
in the negotiation, execution, and enforcement of his NFL Player
Contract with the Baltimore Ravens.

(Op. & Award at 14.)

Mr.

Wichard fulfilled one of these functions by negotiating the 2009
Contract with the Ravens on Mr. Suggs’ behalf.

(Id. at 13-14.)

Otherwise, the arbitrator found Mr. Wichard failed to fulfill
his enforcement function, because he did not represent Mr. Suggs
in the negotiation or reduction of any of the fines he received
in 2010 and 2011.

(Id. at 14-15.)

Thus, the arbitrator

concluded that Mr. Suggs owed Contract Advisor Fees in the
amount of $172,800, which was the full amount of the unpaid
invoice for the 2013 NFL Season ($192,000), less ten percent
($1,920) attributable to possible fine reduction.

(Id. at 18.)

Under the Regulations, this decision constituted the
“full, final and complete disposition of the grievance, and [is]
binding upon the player and Contract Advisor involved[.]”
§ 5(E).)
9

(Reg.

D. Procedural Background
On January 2, 2015, after not receiving payment from
Mr. Suggs within ten days of the award, the Estate filed the
instant Petition to Confirm the Arbitration Award against Mr.
Suggs.

Pursuant to 9 U.S.C. § 9, the Estate asks the Court to

confirm the arbitration award as valid and final, and for entry
of judgment against Mr. Suggs in the amount of $172,800 plus
interest from December 4, 2014, the date of the initial award.
(Pet. to Confirm at 4-5.)

A short time thereafter, on January

22, 2015, Mr. Suggs filed a Petition to Vacate the Arbitration
Award, claiming it violates the essence of the SRA and ignores
Mr. Wichard’s obligations to Mr. Suggs.
14.)

(Pet. to Vacate at 13-

After consolidation of the two cases, the Estate also

filed a Motion to Stay and Sever Certain Claims Pending
Arbitration and to Strike Certain Allegations from the Petition
filed by Mr. Suggs (Mot. to Stay [Dkt. 19].)

The Estate’s

Petition to Confirm the Award, Mr. Suggs’ Petition to Vacate the
Award, and the Estate’s Motion for a Stay on Certain Claims have
all been extensively briefed by the parties.
argument of counsel on March 19, 2015.

The Court heard

Thus, the matter is ripe

for disposition.
II. Legal Standard
Federal courts favor arbitration agreements and awards
stemming from such agreements.

Arrowhead Global Solutions, Inc.
10

v. Datapath, Inc., 166 F. App’x 39, 43 (4th Cir. Feb. 3, 2006)
(unpublished per curiam).

To further this policy in favor of

arbitration, “[j]udicial review of an arbitration award in
federal court is severely circumscribed.”

Wachovia Sec., LLC v.

Brand, 671 F.3d 472, 478 (4th Cir. 2012) (quoting Apex Plumbing
Supply, Inc. v. U.S. Supply Co., Inc., 142 F.3d 188, 193 (4th
Cir. 1998)) (internal quotations omitted).

Limited judicial

review effectuates the very purpose of arbitration.

See, e.g.,

Apex Plumbing, 142 F.3d at 193 (“[T]o allow full scrutiny of
such awards would frustrate the purpose of having arbitration at
all--the quick resolution of disputes and the avoidance of the
expense and delay associated with litigation.”) (citation
omitted); Brand, 671 F.3d at 478 (“A court sits to determine
only whether the arbitrator did his job--not whether he did it
well, correctly, or reasonably, but simply whether he did it.”)
(internal quotation marks and citations omitted).

Indeed, the

Court’s function here “is intended to be summary: confirmation
can only be denied if an award has been corrected, vacated, or
modified in accordance with the Federal Arbitration Act.”
Taylor v. Nelson, 788 F.2d 220, 225 (4th Cir. 1986).

Thus,

federal courts must confirm an arbitration award absent “a
showing of one of the grounds listed in the Federal Arbitration
Act, or if the arbitrator acted in manifest disregard of law.”

11

Apex Plumbing, 142 F.3d at 193 (citation omitted); see also 9
U.S.C. § 9.
Stated differently, “to prevent arbitration from
becoming a preliminary step to judicial resolution . . . [a]n
arbitration award will not be set aside unless it is irrational
or evidences manifest disregard for law.”

Apex Plumbing, 142

F.3d at 193 n.5 (citing Eljer Mfg., Inc. v. Kowin Dev. Corp., 14
F.3d 1250 (7th Cir. 1994), cert. denied, 512 U.S. 1205 (1994);
Upshur Coals Corp. v. United Mine Workers of Am., Dist. 31, 933
F.2d 225, 229 (4th Cir. 1991)).

The statutory justifications

for vacating, modifying, or correcting an award as prescribed in
9 U.S.C. § 10(a) are inapplicable to the facts of this case;
indeed, Mr. Suggs does not ask the Court to vacate the award on
this basis.

Instead, Mr. Suggs relies on common law grounds,

which “include those circumstances where an award fails to draw
its essence from the contract, or the award evidences a manifest
disregard of the law.”

Patten v. Signator Ins. Agency, Inc.,

441 F.3d 230, 234 (4th Cir. 2006) (citing Apex Plumbing, 142
F.3d at 193 n.5).
An arbitration award fails to draw its essence from
the contract “when an arbitrator has disregarded or modified
unambiguous contract provisions or based an award upon his own
personal notions of right and wrong.”

Choice Hotels Int’l, Inc.

v. SM Prop. Mgmt., LLC, 519 F.3d 200, 207 (4th Cir. 2008)
12

(quotation marks omitted).

Notably, “as long as the arbitrator

is even arguably construing or applying the contract and acting
within the scope of his authority, that a court is convinced he
committed serious error does not suffice to overturn his
decision.”

Id. (quotation marks omitted and emphasis added).

In this regard, a court’s conclusion that “an arbitrator has
misread the contract” is simply not sufficient to vacate the
arbitration award.

Id. (quotation marks omitted).

An arbitration award evidences a manifest disregard of
the law “where the arbitrator understands and correctly states
the law, but proceeds to disregard the same.”

Patten, 441 F.3d

at 235 (citing Upshur Coals Corp., 933 F.2d at 229) (internal
alterations omitted).

Such manifest disregard for the law

necessarily results in an award that is “not rationally
inferable from the contract,” but instead a product of the
arbitrator’s amendment or alteration of the contract at issue.
Id. at 236-37 (quoting Mo. River Serv., Inc. v. Omaha Tribe of
Neb., 267 F.3d 848, 855 (8th Cir. 2001) (internal quotation
marks omitted); Apex Plumbing, 142 F.3d at 193 n.5).
In short, by seeking to vacate the arbitration award,
Mr. Suggs “shoulders a heavy burden.”

Patten, 441 F.3d at 235

(quoting Remmey v. PaineWebber, Inc., 32 F.3d 143, 149 (4th Cir.
1994)).

With this standard in mind, the Court now turns to the

merits of the parties’ arguments.
13

III. Analysis
Contract interpretation “is a question for the
arbitrator.

It is the arbitrator’s construction which was

bargained for; and so far as the arbitrator’s decision concerns
construction of the contract, the courts have no business
overruling him because their interpretation of the contract is
different from his.”

United Steelworks of Am. v. Enter. Wheel &

Car Corp., 363 U.S. 593, 599 (1960) (citing United Steelworkers
of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960)).

Moreover, in

addition to the deference afforded to the arbitrator’s legal
conclusions and contract interpretation, the Court must also
defer to the arbitrator’s findings of fact.
F.2d at 229.

Upshur Coals, 933

Under this extremely deferential standard and

limited review of the arbitration award,4 the Court will confirm
the award in the Estate’s favor.
A. Petitions to Confirm and Vacate Arbitration Award
The analysis begins with the presumption that the
Court should confirm the arbitration award.

Apex Plumbing, 142

F.3d at 193 (citation omitted); see also 9 U.S.C. § 9.

To

overcome this presumption, Mr. Suggs argues the arbitration
award should be vacated because (1) the arbitrator acted in
4

The Court has jurisdiction over this matter
arbitration award was rendered in Alexandria,
U.S.C. § 9 (stating an application to confirm
award “may be made to the United States court
district within which such award was made.”).
14

because the
Virginia. See 9
an arbitration
in and for the

manifest disregard of the law, (2) the award does not draw its
essence from the SRA, and (3) the award violates public policy.
(See generally Resp’t Opp’n to Pet. to Confirm [Dkt. 24]; Resp’t
Reply in Supp. of Pet. to Vacate [Dkt. 29].)

The Court is not

persuaded by any of these arguments.
First, Mr. Suggs claims that the arbitrator recognized
the plain language of the SRA when he identified the three
duties Mr. Wichard owed to Mr. Suggs under the SRA--negotiation,
execution, and enforcement of the 2009 Contract--but disregarded
those provisions when issuing the award.

(Resp’t Reply at 3-4.)

The Court would overstep the bounds of limited judicial review
if it accepted this argument.
at 599.

See United Steelworks, 363 U.S.

The arbitrator interpreted the SRA and ultimately

determined the Estate was entitled to the fee from the 2013 NFL
Season, less ten percent for the possibility of any fine
reduction, had Mr. Wichard acted to reduce those fines.

This

interpretation is entitled to deference and is rationally
inferable from the SRA.

Cf. Patten, 441 F.3d at 236-37 (finding

the arbitrator amended or altered the agreement and thus, the
arbitration award was not rationally inferable from the
contract) (citation omitted).

There is nothing in the record to

suggest that the arbitrator amended or altered the terms of the
SRA, which is necessary for a finding of manifest disregard.
Id.

Instead, the arbitrator took into account Mr. Suggs’
15

contentions and factored them into his decision when he awarded
the Estate $172,800.

The arbitrator’s legal conclusions are

supported by law and a plain reading of the SRA.

Mr. Suggs’

arguments in this regard are nothing more than dissatisfaction
with the outcome of arbitration, which is not a sufficient basis
to vacate the award.

See Remmey, 32 F.3d at 146 (“[P]arties may

not seek a ‘second bite at the apple’ simply because they desire
a different outcome.”).

Thus, the Court will not vacate the

award on this basis.
Second, Mr. Suggs claims the award does not draw its
essence from the SRA, because Mr. Wichard was required to act as
Mr. Suggs’ fiduciary at all relevant times.
6.)

(Resp’t Reply at 4-

This second argument is a variation of Mr. Suggs’s first

argument, and it too must fail.

The arbitrator’s award is based

on a rather simple rule pursuant to the terms of the SRA: once a
Contract Advisor negotiates a contract with an NFL team on
behalf of an NFL player, under the SRA, the Contract Advisor is
entitled to his fee after the NFL player receives compensation
for a season under that negotiated contract.

Here, it is

undisputed Mr. Wichard negotiated the 2009 Contract for Mr.
Suggs.

It is also undisputed that Mr. Suggs played the 2013 NFL

Season and was compensated as a result.

The arbitrator thus

concluded the Estate was entitled to the fee from the 2013 NFL
Season.

The arbitrator also noted that Mr. Suggs complied with
16

his contractual obligations under the SRA by paying Mr. Wichard,
or his Estate, the fee for 2009, 2010, 2011, and 2012, even
after Mr. Wichard had died.5
In short, the arbitrator’s conclusion is the essence
of Standard Representation Agreements between Contract Advisors
and NFL Players.

The explicit language of the fee provision in

the SRA is predicated on compensation received by the player for
a season that was played under a contract negotiated by the
agent.

(See SRA § 4 (“If Contract Advisor succeeds in

negotiating an NFL Player Contract . . . Contract Advisor shall
receive a fee of three percent (3%) of the compensation received
by Player for each such playing season[.]”) (emphasis added).)
The arbitrator concluded that receipt of the three-percent fee
is not contingent upon Mr. Wichard’s performance as a fiduciary
or through his enforcement of the 2009 Contract.

Instead, the

receipt of the fee is only contingent upon (1) the successful
negotiation of the 2009 Contract and (2) compensation received
by Mr. Suggs from the Baltimore Ravens for playing in an NFL
season under the negotiated contract.
5

This interpretation of

The arbitrator concluded that these payments until 2013 were
the “best evidence” that Mr. Suggs “understood his continued
obligation to pay Wichard or the Estate the Contract Advisor
fees.” (Op. & Award at 16-17.) It is also undisputed that Mr.
Suggs was fiercely loyal to Mr. Wichard, even after his illness
and death, which illustrates the regrettable and unfortunate
nature of this litigation. (Hr’g Tr. at 79 (“Q: I think the
answer is pretty obvious but I have to ask you anyhow, Terrell.
Why did you stay with Gary? A: Because I loved him.”).)
17

the SRA properly “constru[es] and appl[ies] the contract” and is
thus drawn from the essence of the SRA.

Choice Hotels, 519 F.3d

at 207 (quotation marks omitted).
Stated differently, Mr. Wichard’s fee vested the
moment he negotiated the 2009 Contract on Mr. Suggs’ behalf, and
the amount of that fee was finalized once Mr. Suggs received
compensation for playing an NFL season negotiated under the 2009
Contract.6

Negotiation of the contract and receipt of payment

under the contract are necessary and sufficient conditions,
which have been satisfied here, and thus require the payment of
the fee.

And even if the Court concluded that the arbitrator

misread the SRA--to be clear, it does not--this would still not
be an appropriate basis to vacate the award.

See Three S

Delaware, Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 528
(4th Cir. 2007) (“An arbitration award, however, does not fail
to draw its essence from the agreement merely because a court
concluded that an arbitrator has misread the contract.”)
6

The plain language of section 12 of the SRA also supports this
conclusion. Under the SRA, either party may terminate the
relationship through written notice. If such termination
“occurs after Player has signed an NFL player contract
negotiated by Contract Advisor, Contract Advisor shall be
entitled to the fee prescribed in Section 4 above for
negotiation of such contract(s).” (SRA § 12.) Thus, even if
Mr. Suggs had terminated the SRA with Mr. Wichard, it appears he
would still be liable to pay a fee to Mr. Wichard “for
negotiation of such contract(s).” This provision lends support
to the Court’s conclusion, and shows that SRAs are drafted in a
Contract Advisor’s favor, especially after successful
negotiation of an NFL contract for the player.
18

(citations omitted).

Accordingly, the Court will also not

vacate the award on this basis.

See Poston v. NFLPA, No.

02CV871 (JCC), 2002 WL 31190142, at *5 (E.D. Va. Aug. 26, 2002)
(“[T]he use of [the] concept of manifest disregard to vacate an
arbitration award was upheld by a federal court of appeals in
only two instances during the forty-seven years between its
first clear articulation [by the Supreme Court in 1953] . . .
and the Sixth Circuit’s examination of the issue in 2000.”)
(citing Wilko v. Swan, 346 U.S. 427, 436 (1953); Dawahare v.
Spencer, 210 F.3d 666, 670 (6th Cir. 2000) (citations omitted)).
Finally, Mr. Suggs contends that the award violates
public policy because it relieves Mr. Wichard of his fiduciary
duties while allowing the Estate to reap the rewards under the
SRA.

(Resp’t Reply at 6-7.)

For support, Mr. Suggs cites a

bankruptcy case from the Western District of Kentucky that
states: “Under the law, a contract containing such a clause
which prevents a party from fulfilling his or her fiduciary duty
is void as a violation of public policy.”

(Id. (citing In re

Big Rivers Elec. Corp., 233 B.R. 739, 753 (W.D. Ky. 1998)
(citation omitted)).

This final argument also fails.

Rooted in the “general doctrine . . . that a
court may refuse to enforce contracts that
violate law or public policy,” [United
Paperworkers Int'l Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29, 42 (1987),] a court may
vacate an arbitration award only when (1)
the public policy is “well defined and
19

dominant, as ascertained by references to
the laws and legal precedents and not from
general considerations of supposed public
interests,” and (2) the award itself is a
clear violation of public policy.
Octagon, Inc. v. Richards, No. 1:10-CV-652, 2010 WL 3932272, at
*7 (E.D. Va. Oct. 5, 2010) (citing W.R. Grace & Co. v. Local
Union 759, Int’l Union of the United Rubber, Cork, Linoleum &
Plastic Workers, 461 U.S. 757, 766 (1983); Misco, 484 U.S. at
43).

Unlike Mr. Suggs suggests, the arbitrator did not allow

Mr. Wichard to disregard all of his duties under the SRA.

And

there is no provision in the SRA that “prevents a party from
fulfilling his” fiduciary duty.

Instead, the arbitrator’s final

award reflected Mr. Wichard’s failure to perform his enforcement
function under the SRA.

Yet, at the same time, Mr. Wichard is

still entitled to his fee for negotiating the 2009 Contract for
the reasons discussed above under a plain reading of the SRA.
When one steps back from the minutiae of this case, the result
could be perceived as unfair: indeed, an NFL Player is obligated
to pay a commission to his agent who was deceased for the
majority of the six-year contract.

But Mr. Suggs expressly

bargained for this outcome when he entered the SRA with Mr.
Wichard.

The SRA is not only approved by the NFLPA, it is

required by the NFLPA, the labor association concerned with
protecting the rights of NFL players.

By requiring the use of

the SRA, the NFLPA implicitly certifies the obligations therein,
20

which clearly favor Contract Advisors who successfully negotiate
contracts on the player’s behalf.

This Court will not re-write

the terms of the SRA; that can only be done by the NFLPA,
Contract Advisors, and the NFL.
Regardless, the Court finds that Mr. Suggs has failed
to show how the award violates public policy, especially given
the arbitrator’s consideration of Mr. Suggs’ arguments regarding
his fine exposure.

This conclusion and outcome does not violate

any public policy, but instead incorporates the agent’s
contractual obligations under the SRA.

Therefore, the petition

to vacate the award is denied on this basis as well.

See

Octagon, 2010 WL 3932272, at *8 (“Defendant has not met the
heavy burden required to vacate an arbitration award on these
grounds.

This is not one of the rare instances where this Court

will vacate an arbitration award based on public policy.”).
Ultimately, the arbitration award is entitled to
deference.

Apex Plumbing, 142 F.3d at 193 (“[T]o allow full

scrutiny of such awards would frustrate the purpose of having
arbitration at all--the quick resolution of disputes and the
avoidance of the expense and delay associated with litigation.”)
(citation omitted).

The arbitration award draws its essence

from the SRA and does not manifestly disregard the law.
Therefore, the Court will confirm the arbitration award and deny
and dismiss Mr. Suggs’ petition to vacate the award.
21

B. The Estate’s Request for Prejudgment Interest
The Estate also asks for prejudgment interest at a
rate of ten percent under California law from December 4, 2014,
the date the arbitration award was rendered.
at 5.)

(Pet. to Confirm

Mr. Suggs does not address or expressly oppose this

request in his opposition brief.

(See Resp’t Opp’n [Dkt. 24].)

The Court will award prejudgment interest from December 4, 2014
to the date of this opinion and accompanying Order.
“Post-award, prejudgment interest is generally awarded
at the discretion of the district court, and there is a
presumption in favor of awarding such interest.”

In re

Arbitration Between Westchester Fire Ins. Co. v. Massamont Ins.
Agency, Inc., 420 F. Supp. 2d 223, 226-27 (S.D.N.Y. 2005)
(citing In re Waterside Ocean Navigation Co. v. Int’l
Navigation, Ltd., 737 F.2d 150, 153-54 (2d Cir. 1984))
(additional citation omitted); see also Elevation Franchise
Ventures, LLC v. Rosario, No. 1:13-cv-719 (AJT/JFA), 2013 WL
5962984, at *1 (E.D. Va. Nov. 6, 2013) (awarding interest by
summary order on the arbitration award from the date of the
award to the date of entry of default judgment).

To determine

the applicable interest rate, the Court must first determine
what law applies.

Regardless of whether the Court has

jurisdiction by diversity of citizenship or under the FAA, state
law controls the applicable prejudgment interest rate.
22

See

Massamont Ins. Agency, Inc., 420 F. Supp. 2d at 226-27 (“The
state statutory rate is to be applied even where, as here,
federal law governs enforcement of the arbitration award.”); see
also Thornhill v. Donnkenny, Inc., 823 F.2d 782, 787 (4th Cir.
1987) (finding that Virginia’s conflict of law rules, which are
used in diversity actions, generally honor contractual choice of
law provisions) (citing Bryant Elec. Co., Inc. v. City of
Fredericksburg, 762 F.2d 1192, 1196 n.8 (4th Cir. 1985).
Here, the SRA, the underlying contract at issue, is
“construed, interpreted and enforced according to the laws of
the State of California.”

(SRA § 13.)

Under California law,

interest accrues at a rate of ten percent from the date of the
arbitration award resolving the contractual dispute, to the date
of judgment in this Court affirming the arbitration award.

See

Britz, Inc. v. Alfa-Laval Food & Dairy Co., 40 Cal. Rptr. 2d
700, 713-14 (Cal Ct. App. 1995); see also SCIE LLC v. XL
Reinsurance Am., Inc., 397 F. App’x 348, 352-53 (9th Cir. Sept.
27, 2010); Cal. Civ. Code § 3289(b).

Accordingly, the Court

will award $5,702.40 in prejudgment interest, which is
calculated at ten percent per annum on the principal amount
owed, $172,800.00, from December 4, 2014 to the date of this
opinion and accompanying Order confirming the arbitration award.

23

C. Mr. Suggs’ Alternative Request for Discovery
In the alternative to his request that the Court
vacate the award, Mr. Suggs asks that this matter be stayed
pending a limited period of discovery.

“The district court has

discretion to deny discovery in a proceeding to confirm an
arbitral award.”

Lyeth v. Chrysler Corp., 929 F.2d 891, 898 (2d

Cir. 1991) (citing Imperial Ethiopian Gov’t v. Baruch-Foster
Corp., 535 F.2d 334, 337 (5th Cir. 1976) (“The loser in
arbitration cannot freeze the confirmation proceedings in their
tracks and indefinitely postpone judgment by merely requesting
discovery.”)).

In some instances, a district court may permit

discovery in a post-arbitration proceeding when such discovery
is “relevant and necessary to the determination of an issue
raised by such an application.”

See, e.g., ARMA, S.R.O. v. BAE

Sys. Overseas, Inc., 961 F. Supp. 2d 245, 261 (D.D.C. 2013).
However, the Court has broad discretion to control discovery.
Flame S.A. v. Indus. Carriers, Inc., No. 2:13-cv-658, 2014 WL
3895933, at *14 (E.D. Va. Oct. 8, 2014) (citing cases).
Generally, discovery in post-arbitration review proceedings is
typically limited, or not necessary at all, given the deference
this Court owes the arbitrator’s findings of fact and
conclusions of law.

See Lyeth, 929 F.2d at 898; see also Upshur

Coals, 933 F.2d at 229.

24

Here, Mr. Suggs notes that the parties did not engage
in discovery during arbitration, and asks for limited discovery
in this matter, claiming discovery is relevant and necessary to
determine whether Mr. Wichard and/or ProTect Management
fulfilled its contractual and fiduciary obligations to Mr. Suggs
under the SRA.

(Resp’t Opp’n at 19.)

Specifically, Mr. Suggs

requests discovery concerning any effort by ProTect Management
or Mr. Chinn to contact and provide advice or services to Mr.
Suggs after Mr. Wichard’s death, which would necessitate, at the
very least, deposing Ms. Wichard in order to explore these
alleged efforts.

(Id.)

Having already determined that the arbitration award
will be confirmed for the reasons discussed above, the Court
finds that discovery is not relevant nor is it necessary.
Rather, any discovery would needlessly protract a proceeding
that is intended to be summary in nature, and thus defeat the
purpose of the binding arbitration provision in the Regulations.
See Apex Plumbing, 142 F.3d at 193; see also Taylor, 788 F.2d at
225 (holding post-arbitration judicial review “is intended to be
summary”).

Therefore, the Court will also deny Mr. Suggs’

request for discovery.

See Lyeth, 929 F.2d at 898.

D. Claims Regarding the 2014 NFL Season
Lastly, in his petition to vacate the arbitration
award, Mr. Suggs raises claims related to Mr. Wichard’s fee for
25

the 2014 NFL season.

(Pet. to Vacate at 8, 14 (“Mr. Suggs

respectfully requests that this Court enter an Order . . .
declaring that neither the Wichard Estate nor Pro Tect [sic] is
entitled to receive any further fees under the 2009 Contract,
including fees for the 2014 NFL season.”).)

It is undisputed

that the arbitration award at issue in this litigation involved
only the 2013 NFL Season.

The parties have not yet arbitrated

claims related to the 2014 NFL season, the final season under
the 2009 Contract.
Under section five of the Regulations, arbitration is
the exclusive method for disputes between player and agent, and
Mr. Suggs cannot present claims to this Court without first
proceeding through arbitration.

See Reg. § 5(A); see also

Blount v. Northrup Grumman Info. Tech. Overseas, No. 1:14cv919
(JCC/TCB), 2014 WL 5149704, at *3 (E.D. Va. Oct. 14, 2014) (“If
there is a failure or refusal to arbitrate under a written
agreement, an aggrieved party may petition the court ‘for an
order directing that such arbitration proceed in the manner
provided for in such agreement.’”) (quoting 9 U.S.C. § 4).

But

the Estate is not asking that this Court compel Mr. Suggs’
participation in arbitration.

Instead, the Estate asks only for

a stay of these claims pending arbitration.

This request for a

stay is premature because the parties have not even attempted to
arbitrate any issues regarding the 2014 NFL Season--in fact,
26

there may be no issue that requires arbitration at all.7

The

only issue before the Court at this time is whether the
arbitration award regarding the 2013 NFL Season should be
confirmed.

The Court has answered this question in the

affirmative and will confirm the award.

Any issues regarding

the 2014 NFL Season are not properly before the Court for
adjudication.

Accordingly, the Estate’s motion to stay will be

denied and Mr. Suggs’ petition to vacate the award will be
denied and dismissed in its entirety.
IV. Conclusion
For the foregoing reasons, the Court will confirm the
arbitration award and deny the motion to stay claims pending
arbitration.

An appropriate Order shall issue.

March 24, 2015
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

7

Stated differently, after the issuance of this opinion and
accompanying Order confirming the arbitration award regarding
the 2013 NFL Season, there may be no need to arbitrate claims
regarding the 2014 NFL Season--the parties could agree that Mr.
Suggs is required to pay the fee. (See Resp’t Mem. in Opp’n to
Pet’r Mot. to Stay [Dkt. 28] at 8-9 (“Any future arbitration
regarding the Wichard Estate’s right to the 2014 Fees
necessarily will involve the same parties and the same issues
that have already been arbitrated and decided by Mr. Kaplan and
that are now before this Court. . . . [S]hould this Court
confirm Mr. Kaplan’s decision, Mr. Suggs would be precluded from
litigating that he is not required to pay the 2014 Fees to the
Wichard Estate.”).) Or there could still be a dispute that
requires additional arbitration or judicial intervention.
However, this is not for the Court to decide.
27