This is a recap of the legal battle that ensued between me and Gary Wichard. I recount it not to bury you in legalese, not to be overly defensive on my own behalf, but to shed more light on the justice, or injustice, of big-time football. To borrow a phrase, you be the judge.
Instant replay. In 2004 I left Gary Wichard for Steve Feldman but I fully expected to continue to collect commissions on the players Gary and I had signed together. That’s the way our agreement was structured. But after I resigned, I wasn’t getting payments. I called the Pro Tect office; I spoke to Gary’s assistant, Beth, who was very uncomfortable with my questions; and month after month, well after I knew the players had paid Gary, I still got no payments. Later I found out the trigger for not paying me may have been the conversation Chuck Price had had with Gary when he was competitively shopping Matt Leinart with us, Gary, and who knows who else. Price had repeated Manuel White Jr.’s comment that I had claimed to represent Terrell Suggs, which led to Gary calling and ranting and me trying to explain I never had said that, only that I’d helped recruit players like Suggs—but Gary had been too busy ripping me a new one over the phone to hear me.
I kept calling, kept trying to collect, and I was worried about any statute of limitations. I assumed that if I didn’t file a suit demanding to be paid before the year expired, I might lose my right to collect my money. My brother-in-law hooked me up with an attorney. We sent a demand letter, then filed a breach of contract suit in January 2005. They responded with a letter saying Gary wasn’t paying me because I had opted to compete in the industry, and they filed a counter-suit on that basis. That suit was thrown out of court, because Gary’s corporation technically no longer existed (and besides, the precedent in California courts is that noncompete clauses are essentially unenforceable). The whole David Dunn–Leigh Steinberg case had hinged on a noncompete clause that didn’t hold up. And we didn’t even have a noncompete clause in our deal, only something that said I couldn’t raid Pro Tect clients while working elsewhere—an obligation I had honored.
Throughout the whole process, I was convinced that Gary was stalling so I’d accept a settlement for less than he owed. He had a history of doing that with other young guys who worked for him. For that reason, I didn’t want to work with an attorney on a contingency, a percentage of money collected. I figured this matter was cut and dried, and I was going to get most, if not all, of what I was owed. So I decided to hire a lawyer by the hour and be done with it.
Meantime, Keenan Howry, who had fired Gary and hired me in 2005, received a bill from Pro Tect for more than $9,000, which he didn’t think was right, so he called me. I helped him refigure it, and it was only about $5,300 he actually owed for commissions. My best guess is the error in the bill was due to a human miscalculation. Howry asked me how to make the check out and I said, to Pro Tect. In light of the fact that I was suing Gary for back commissions, the appropriate thing to do, I thought, was to give the check to my lawyer. I explained this all to Keenan and turned the check over to my attorney. The lawyer and I were on a lot of calls together, but it seemed like he was churning hours, and we’re not getting anywhere … at $400 an hour.
So I called another lawyer I knew, my old friend Mike Trope. He was working at a law firm in Brentwood and we had lunch, during which I showed him the complaint. As it turned out, my attorney had referred some past cases to Mike, so he didn’t want to jeopardize that relationship by poaching a client. Instead, he referred me to a female attorney he had sometimes used to do preliminary work, who agreed to work at a discounted rate. She reviewed the complaint and concluded it was drafted incorrectly because Gary’s corporation had been dissolved and could leave me with a judgment against a nonexistent company. I switched over to this woman with the understanding that she would handle the basic pretrial work, and Mike Trope would do the depositions and trial because of his familiarity with the inner workings of the NFL and the agent business. He’s a brilliant lawyer and had represented some high-profile sports characters—such as Lloyd Bloom and Norby Walters, two notorious agents who had been accused of giving gifts to college athletes—so if we went to trial I knew I’d have a big gun.
Now, here’s where the details get a little complicated: 1) I told Trope about the check from Keenan Howry and Trope asked if my first attorney was holding the check or the proceeds from the check. I didn’t know. Trope said, “He must be holding the check itself, because he couldn’t have put it in his trust account.” I had no idea how lawyers’ trust accounts worked, so I figured Mike was right. 2) I left the first attorney but he wanted his final payment of about $6,000 or he would sue me. I told my new attorney and she reached a settlement with the first one, part of which stated that he would forward the Howry commissions he was holding. I later discovered that he had endorsed the check and put it into his own trust account, despite what Trope had originally thought. 3) When he sent a check to my new attorney, she returned it with “Rejected” written on it because she concluded that possession of it would look like improper behavior on her part. She protected herself but breached her fiduciary duty to me as her client by not telling me about the whole incident. 4) I thought the issue with the check had been resolved and that it had eventually gone to Gary Wichard’s attorney. I thought wrong.
In fact, when I was deposed by Gary’s attorney and asked about any checks I had received from players I shared with Pro Tect, I said I had forwarded them to Wichard’s office. Then, in a second deposition, I was asked the same question repeatedly, thought hard about it, and said there was this commission check from Keenan Howry that had been given to my attorney. I didn’t think it would matter because it was in the hands of counsel, and I presumed it would be forwarded to Wichard, but I couldn’t have been more wrong. Once I acknowledged the Howry check in the second deposition, it was interpreted as a contradiction of what I’d said earlier and called into question everything from the first deposition, and Gary even filed a police report on Christmas Eve that the check was “stolen” (at least the DA recognized it was a civil matter and disregarded it). To use a legal term of art, it started a shit storm.
It was an expensive shit storm. The legal bills kept coming like a tidal wave—$6,000, $7,000—to the point where I had to take out a second mortgage. Fortunately, my wife and my in-laws were 100 percent behind me, telling me to get what I was owed. And Steve Feldman agreed with my position that there was no basis for Gary not paying except to try to wear me down to a lower settlement.
The lawsuit drama dragged on from 2005 to early 2008, until we were a couple of months from the trial I’d thought would never happen. I did get a settlement offer from Gary but it was more like attempted blackmail in an extortion letter. He said I should take about $50,000 or he’d go to the NFLPA with a complaint that I’d withheld a player’s commission money from him. I was comparing that “offer” (or threat) to $170,000 owed in commissions to date, plus future commissions for players we shared, including a new deal for Terrell Suggs that had the potential to earn me as much as $700,000 if Suggs played out his contract. All together, it was over $1,000,000 owed vs. $50,000 offered. Gary’s specific threat was that he would file a grievance with the NFLPA against Keenan Howry for nonpayment of the $5,300 fee (even though he’d billed Howry for more than $9,000), which would theoretically trigger a breach of fiduciary duty action by the union against me. My lawyers thought it was a ridiculous threat. It was transparent that Gary knew the money was sitting in trust; and furthermore, they argued the NFLPA would not get involved in a dispute between agents that did not impact any players. Gary just wanted to use the union rules to gain an advantage in the civil proceeding, not really follow through with an NFLPA action against Howry. I didn’t accept his offer and he filed the grievance.
In the end, the case that we never thought would go to trial, went to trial. And in a matter that was supposed to be cut and dried in my favor, the jury ruled against me and found no breach of contract. Plus, whoever lost at trial had to pay the other’s attorney’s fees. Bottom-line: In large part due to the attorney’s mishandling of the $5,300 Howry check, instead of getting $1,000,000 and more in commissions, with the cost of appeal and interest, I now owed $650,000 to Wichard’s lawyers. I ended up suing my attorney for malpractice (Trope had bowed out). The lawyer’s insurance company offered a settlement to pay Wichard and the new lawyer’s contingency. I won, if you can call it that, but it was hardly the end of the bad news. I still had the NFLPA complaint to face.
Suge Knight’s “Stepson”: The Last Player We Recruited Together
The legal mess with Gary Wichard was a major distraction, but I still had a business to run—in fact, with the prospect of losing money, I needed to be more effective than ever. So I kept on recruiting. As it turns out, the last player Steve and I would recruit together was Chauncey Washington from USC. (In fact, by the time Chauncey was ready to officially sign with us, the NFLPA had already dropped its final hammer on my head.) Steve called and asked me to meet Chauncey at a rental car place in Los Angeles. I was thinking Budget or Avis for a nice midsize to get him back and forth to workouts. Instead, I met Chauncey at Black and White Rental Cars in Beverly Hills, an outfit that specializes in luxury vehicles. Chauncey explained that his “step-dad” wanted him to “roll in style” but due to his step-dad’s “current situation,” they needed me to put it on my credit card.
Chauncey promised me that we’d go right over to the Peninsula Hotel in Beverly Hills, where his step-dad would give me the cash to cover a one-week rental. This plan had all the makings of a disaster, and I felt a sense of déjà disaster: I’d lived this b.s. before. At least I had the good sense to increase the insurance limits on my American Express card before Chauncey got behind the wheel of his $100,000 Mercedes. He drove me over to the hotel, where we met the step-dad he kept talking about, a man who turned out to be none other than the notorious rap mogul (and ex-convict) Marion “Suge” Knight.
Ensconced in a massive hotel suite, the infamous rap impresario Suge came to the door wrapped in a white terry-cloth robe, then perched on a chair in the middle of the room, flanked by Asian girls performing manicures and pedicures on his digits. My déjà disaster alarms were going nonstop. I jokingly asked if he’d mind closing the French doors to his balcony, a reference to the crazy story of Suge hanging rapper Vanilla Ice off a balcony over the rights to the hit song “Ice Ice Baby.” Suge laughed and then we traded a few old war stories; Doc Daniels had actually represented Suge when he was a replacement player for the Rams during the 1987 strike. He even remembered that I was Doc’s “Jew-boy.”
The whole time I was waiting for Chauncey to bring up the cash for the rental car, but it wasn’t happening. Suge said he was heading to Las Vegas for the weekend and I should go along for some fun. Maybe when I was single and fifteen years younger and dumber, I would’ve gone, but not now with a wife and two daughters. I could just imagine that call to my wife: “Jen, honey, I’m gonna skip dinner tonight and in fact I’ll be gone all weekend so could you do me a favor and fill in for me as a coach for our daughter’s soccer team cuz I’m gonna hop a private jet to Vegas and whoop it up with Suge Knight? Okay, honey?” Not okay. Chauncey never did ask his step-dad for the money, and I sure as hell wasn’t going to ask Suge for it. I left empty-handed and financially responsible for a $2,500-per-week rental car. Sunday morning, I read in the paper that Suge had been arrested that weekend in Vegas on a domestic violence charge. At least I’d made one good call.
An entire week went by and as I’d feared, Chauncey didn’t return the car. I started fielding daily calls from Black and White Rental Car. Then another week, and another $2,500 on my AmEx card, went by. (Hey, at least I was earning a lot of reward points.) The next week Chauncey was leaving for the Combine in Indianapolis so I figured/hoped he would return the car at that time. Chauncey did leave for the Combine, but he drove himself to the airport and parked the car at some obscure lot while he was in Indianapolis for the week. Another $2,500 in rewards points. All told, Chauncey burned around $20,000 on the rental car, all on my card. Lucky for us he earned almost twice that in rookie football card deals with Topps, Upper Deck, and others, so he’d have little trouble paying it back … if I could get him to sign the deals before the predraft deadline, which I did but it was no small task.
We got out without too much personal damage. Chauncey was a seventh-round pick of the Jacksonville Jaguars and received a modest signing bonus. But dealing with Chauncey was yet another reminder of how ugly the business can be—an unfortunate end to my work with Steve Feldman.
Justice NFLPA-style
Just before the trial, I received a letter from the NFLPA informing me that they had begun their own inquiry for breach of fiduciary duty—Gary’s wild threat—citing my having made inaccurate statements in my depositions. I hired another lawyer, this time David Cornwell, one of the nation’s leading sports attorneys (along with his associate, Brandon Witkow), as Cornwell had represented NFL athletes, agents, and even the league itself. Cornwell contended that the fiduciary duty breach claim would normally come from the one owed the duty, which would’ve meant Keenan Howry. But the union, by way of an organization called CARD (Committee on Agent Representation and Discipline), took the position that they were acting on behalf of all players in the union, that the damage was to their overall membership and marketplace. I never spoke to CARD and nobody from the NFLPA ever contacted me or Keenan Howry. But they were supposedly weighing the facts of the case.
Meantime, Hugh Dodson, COO of the Gersh Agency, who had become licensed as an agent, was at the NFLPA meeting in northern California. On a huge screen, in front of a large group of other agents, the union officials projected a notice that I had been suspended for twelve months and fined $25,000 for misappropriating funds and lying in depositions. They posted it before I’d even responded to their letter and before informing me of their decision. A mad agent scramble for the phones ensued, people trying to pick off my clients. The body wasn’t even cold and already the vultures were circling. Within minutes I was getting calls from my clients, who’d been getting calls from agents. Eventually I received a letter notifying me of what everyone else already knew. That’s the due process of the NFLPA. You can appeal, but you’re neutered in terms of recruitment while you’re appealing. No one wants to sign with a guy who might be suspended.
Naturally, we exercised my right for an appeal. Cornwell made my case to the arbitrator, Roger Kaplan, who’d handled almost every case for the NFLPA for the past twenty-five years. Kaplan was hired by the union and paid by the union and, not surprisingly, he rarely disagreed with the union. He extended the hearing from one day to two because he said he had a hot date lined up while he was in town. The first hearing was in L.A., the second at his office outside of Washington, D.C., which cost me about $10,000 in additional legal fees and travel. A few months later he rendered his decision. No shock: He upheld the suspension, and even the full amount of the fine. So now I owed a $25,000 fine; I’d lost my job at Gersh; and I had almost no clients. It hurt Steve, too. He lost most of the clients he had with me; he hung on to his older ones, but a lot of those were close to retirement. I paid $12,500 to the Players’ Trust and the other $12,500 to another NFLPA charity. I was broke, with no college degree, and I had a wife and two little kids, ages four and six. Besides the death of my parents, it was the lowest moment of my life.
Here I was, a guy who had done all kinds of things wrong in the football agent business. I’d paid college players, given them loans they’d never repay, paid money to runners to get me to players; I’d cooked up information for Game Plan and Playbook sales materials, I’d gotten questions and answers to Wonderlic tests, I’d picked up the tab on debauched trips to Las Vegas. All that and I wound up getting suspended for giving a small check to my attorney to hold—not for cashing it or spending it, just for having him hold it! The string of lawyers I’d hired made My Cousin Vinny look like Clarence Darrow. One bumble after another, and finally a kangaroo court controlled by the NFLPA. It was a travesty of justice. Or … it was my comeuppance. I didn’t get nailed for what I had done. I got nailed for something else. In the symmetry of life, maybe I got what I deserved.
I was suspended for twelve months but it might as well have been a career death sentence. Twelve months of not being able to recruit players or negotiate on behalf of current players is a lifetime. Other agents recruiting against me in the future would’ve used the arbitrator’s decision as a reason players shouldn’t sign with me. That guy stole a player’s check—ask the NFLPA. I was done at Gersh; and I was done with Steve Feldman, despite his personal loyalty. The day I received the decision on my appeal—an unequivocal “no”—my wife walked into our den and said to me, “Josh, there’s a career open house at Marcus and Millichap, the commercial real estate company, right down the street from us. You should go check it out. You like real estate, you like people, you know how to sell.” Despite all I’d been through, at my lowest moment, my wife, my partner, my moral compass had total faith in me. She didn’t need to read the NFLPA decision. She said she didn’t want to waste another minute of our lives on it. I followed her gentle nudge. That same day I walked into the real estate office, signed up for training, and started over—clean. End of my life as a football agent, start of my new life as a commercial real estate agent.
Postscript: Twelve months later, having paid my fines, I was reinstated as an NFLPA agent and had to decide if I’d stick with selling commercial properties or dive back into the cesspool. For once, I stayed on the shore.