One of the NFL’s top agents lied under oath during an NFL Players Association arbitration hearing about allegations he poached a rival’s client, a federal appeals court ruled last month.
Now, the talk of the football agent world is whether Athletes First’s Todd France actually perjured himself and what the NFLPA intends to do about it. France ranks in the top 10 among football agents with nearly four dozen NFL players as clients, including Cowboys quarterback Dak Prescott.
Offering clients financial inducements to leave their current agent — poaching — is against NFLPA rules. But it is hard to prove and the bane of smaller agencies like Jason Bernstein’s, who has litigated against France since the 2019 defection of then-Lions wide receiver Kenny Golladay.
“Bernstein’s become like the superhero in the business because I think it kind of puts fear in other agents. The industry wants to see something done,” said one agent who requested anonymity to speak candidly about the situation. “That’s going to be the biggest thing with the NFLPA, because they can’t set the precedent that you just come in front of us and lie and you get a fine. If you’re here to regulate agents and protect players and do what’s right, then you have to kind of hand out something that’s going to be kind of aggressive.”
The NFLPA did not respond to that The Athletic‘s request for comments.
The details of the case against France read like something out of a movie. In fact, the Third Circuit’s three-judge panel, whose members were appointed by Presidents George W. Bush, Obama and Trump, compared the case to the movie “Jerry Maguire” in the opening of its unanimous 29-page decision.
Kenny Golladay signed a four-year, $72 million contract with the Giants before the 2021 season. (Evan Pinkus/Associated Press)
The story begins three years ago with Bernstein, who operates Clarity Sports International out of his home with his father, Bruce. Clarity signed Golladay out of Northern Illinois, and the Lions selected him in the third round of the 2017 draft. Unknown to Bernstein, France and Golladay talked about an agency switch in 2018, as Golladay was emerging as a star player.
Bernstein claimed France, who at the time worked for mega-agency CAA Sports, poached Golladay by arranging an autograph signing at a memorabilia show as a financial inducement. The day after the January 2019 memorabilia show, Golladay terminated Bernstein and would later sign a $72 million deal with the New York Giants, with commissions flowing to France. Agent commissions in the NFL are typically three percent of a contract.
Later that year, Bernstein brought a grievance through the NFLPA, but France claimed he had nothing to do with the autograph signing and had no relevant documents to hand over on the issue and argued that Golladay had approached him about leaving Clarity. Without any evidence supporting Bernstein’s claims, arbitrator Roger Kaplan found for France in March 2020.
Meanwhile, Bernstein sued CAA Sports and the memorabilia dealers in federal court. During that case, which is still ongoing, evidence emerged of an email between France and the dealers arranging the autograph signing. The new detail came after both Kaplan’s decision and a federal court’s confirmation of the arbitration award. When Bernstein went back to the federal court with the evidence, US District Court Judge Yvette Kane of the Middle District of Pennsylvania rebuffed him for failing to obtain the information earlier.
Federal courts are very hesitant to overturn arbitration awards, setting three standards for doing so: the winning party committed fraud during the hearing, the fraud could not have been detected through due diligence, and the fraud was directly connected to the outcome of the case. The lower district court ruled against Bernstein, finding he failed the second plank because he should have enforced a subpoena that arbitrator Kaplan agreed to issue against CAA.
The three-judge panel disagreed, ruling Bernstein had done enough discovery to satisfy the standard, and accused France of fraud.
“Perhaps the easiest conclusion in this case, even under a clear-and-convincing-evidence standard, is that France committed fraud,” the panel wrote. “On the record before us, it is plain that France both lied under oath and withheld important information demanded in discovery.
“The newly revealed evidence showed that France was in fact involved with the autograph-signing event.”
France submitted an affidavit from junior colleague Jake Silver arguing that Silver had sent the email to the memorabilia dealers from France’s account and that France did not know about the autograph signing. But the three judges clearly did not believe him, writing, “If there were any evidence that other people were sneaking onto France’s computer and sending and receiving emails in his name, we would have expected to hear about it.” And in a footnote, the judges added, “This leaves aside the possible subornation of perjury by France in obtaining an affidavit from Silver claiming France knew nothing of the signing event.”
France has since asked for a rehearing of his case before the entire Third Circuit, essentially contending that it was Bernstein’s fault that he did not uncover the alleged fraud because he failed to enforce the subpoenas against CAA. Even if the Third Circuit rejects France, the case returns to arbitrator Kaplan. And France has contended all along that Golladay sought him out, which is allowable under NFLPA rules, not the other way around.
In deposition testimony from the CAA lawsuit brought by Bernstein, Golladay described himself as insulted at the argument that he would switch agents over the money earned from signing items over three hours (he cites the figure of $7,000 but the actual payment according to the judge’s decision was $7,750).
“You can’t bribe me with 7,000 bucks,” Golladay said at his Aug. 30, 2021, deposition, excerpts of which were included in court filings. “Yeah, that’s kind of disrespectful.”
The wide receiver testified he switched agents because he felt he needed a big agency.
“I knew I wanted the total package, and that comes with everything, and I wanted a monster deal,” he said in the filings. “I felt like I was worthy for a monster deal, and to be honest — no hard feelings to Jason — I didn’t feel like he would be able to do that for me, and I found an agent that was able to do that and I thought would be able to do it, and Todd France was the guy. And, I mean, $72 million later, here we are.”
France, who joined Athletes First in 2020, declined to comment. Bernstein and his lawyer declined to comment. But agents not involved in the legal morass hope the episode sends a message.
“This will be a deterrent for future agents dealing with tortiously interfering with existing contracts with other agents,” said longtime NFL agent Peter Schaffer. “That’s my hope. … We need to have sanity, the business will need to have high-level morals and ethics. And so I hope these types of situations are a deterrent to agents poaching other agents, and players. That’s what I hope for.”
(Photo of France, middle, with former Broncos receivers Eric Decker and Demaryius Thomas in 2015: Rick Diamond / Getty Images)
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