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In an August 2022 decision, the United States Court of Appeals for the Third Circuit found that prominent NFL player agent Todd France had “committed fraud” in securing a victory against rival agent Jason Bernstein in a March 2020 arbitration overseen by the NFL Players Association (NFLPA). Then, in a December 2023 decision, in a partial redo of that arbitration, Arbitrator Roger Kaplan ordered France to pay Bernstein $810,846.67, including $450,000 in punitive damages for his conduct. Despite these rulings, the NFLPA has not yet taken any action against France, to the consternation of his competitors. That is anticipated to change after an upcoming trial between Bernstein and CAA, France’s former agency.
Unions and Agent Regulation
Under the National Labor Relations Act (NLRA), a union is “the exclusive representatives of all of the employees in [the employee] unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” In other words, both employees and employers are prohibited from negotiating the terms of an employee’s employment without the union’s involvement or permission.
In sports, the union’s exclusive authority under the NLRA means, for example, that the NFLPA has the right to negotiate all of the contracts of the approximate 1,700 players on NFL rosters. Such a workload is impractical. Consequently, the NFLPA and the other unions in professional sports effectively delegate some of that negotiating authority to agents pursuant to a certification process.
In their collective bargaining agreement, the NFL and NFLPA negotiate numerous parameters around player employment, including minimum salaries, the terms of the standard player contract, dispute resolution, benefits, work schedules, and more. Nevertheless, there is still a considerable amount of room left to individual negotiation between the player and his agent and the team, notably the annual salary and length of the contract.
The union certification process varies across the unions but generally requires an extensive background check, sometimes an exam, and the agreement to abide by the union’s agent regulations. The regulations are extensive and intended to ensure that agents represent players competently, zealously, and ethically. The unions’ authority is further cemented as part of the collective bargaining agreements, in which the teams agree not to negotiate player contracts with agents not certified by the relevant union.
First Down: The Bernstein-France Arbitration
Among the rules contained in the unions’ agent regulations is a general requirement that any dispute over the regulations, between agents, or between a player and an agent be resolved exclusively through a union-administered arbitration process (which NBA player agent Daniel Hazan is seeking to evade in an unrelated matter).
Pursuant to those rules, in July 2019, Bernstein filed a grievance with the NFLPA against France alleging that he had violated the NFLPA’s regulations by initiating conversations with Bernstein’s client, then-Detroit Lions wide receiver Kenny Golladay, including assisting him in a card signing, and then ultimately signing Golladay as a client. It is not uncommon for agents to bring such cases when they perceive a client to have been stolen, but there has never been a decision finding that an agent violated the regulations (cases frequently settle).
In March 2020, Kaplan issued a decision in France’s favor, finding that Bernstein had failed to prove that France engaged in the alleged wrongful conduct. The parties then filed competing actions to vacate or confirm the award. The document discovery in those cases revealed that France had been untruthful during the NFLPA arbitration process. Specifically, France had denied both in a pre-hearing deposition and again at the hearing that he had any involvement with Golladay’s January 2019 autograph event. In fact, emails produced in those cases showed that France and his team had arranged the event and negotiated the contract for the event. Yet, during the arbitration process, France had denied having any documents related to the signing event.
Despite these revelations, a district court declined to vacate the arbitration decision, a high burden under any circumstances.
The Third Circuit felt differently – and strongly. It found that France was involved in the autograph signing and that he had “committed fraud” in the arbitration process. It therefore ordered the March 2020 arbitration decision to be vacated.
Second Down: The Bernstein-France Arbitration Revisited
With the prior decision vacated, Bernstein initiated a new action against France in March 2023.
In a September 2023 decision, Kaplan ruled that the question of whether France had improperly induced Golladay to sign with him and whether he had committed fraud had been fully and fairly decided by the Third Circuit and would not be relitigated. Consequently, the new arbitration was limited solely to the amount of damages France owed Bernstein.
On December 28, 2023, Kaplan issued a decision ordering France to pay Bernstein $810,846.67 in damages, including $450,000 in punitive damages.
Kaplan, the keeper of the NFLPA arbitration process, was clearly offended by France’s conduct. His decision repeatedly referenced France as having lied or committed fraud, described “lying under oath [as] an abominable offense,” and possibly “also a crime.” Kaplan described “France’s conduct during the 2019 arbitration hearing [as] an affront to good order.” Consequently, Kaplan determined that a “significant response” was “warranted so as to protect the integrity and functionality of the arbitration system and to deter similar misconduct in the future.” For these reasons, Kaplan issued the first ever punitive damages award in an NFLPA arbitration.
The NFLPA Punts
France is pursuing an action in federal court to vacate Kaplan’s decision. That action is ongoing, including an effort by France to obtain discovery concerning communications between the NFLPA and Kaplan.
All the while, France has continued his career as one of the leading agents in the business. Indeed, he represents Walter Nolen, the 16th overall pick in the 2025 NFL Draft by the Arizona Cardinals.
The findings against France should be drawing the scrutiny of the NFLPA’s Committee on Agent Regulation and Discipline (CARD), a panel of active or former NFL players which has the authority to discipline agents, including by potentially revoking their certification. Of relevance here, the NFLPA Regulations Governing Contract Advisors prohibit “[e]ngaging in unlawful conduct and/or conduct involving dishonesty, fraud, deceit, misrepresentation, or other activity which reflects adversely on his/her fitness as a Contract Advisor.” Indeed, in 2016, the NFLPA revoked the certification of Ben Dogra, at the time one of the most successful agents in the business, for a variety of infractions.
Yet, to date, there is no known CARD investigation against France. During a session for agents at the NFL Combine in February 2025, NFLPA officials referenced but did not discuss the action and seemed to indicate that CARD would take it up but did not provide any further details.
On June 16, 2025, a trial is set to start in the United States District Court for the Middle District of Pennsylvania in a suit by Bernstein and his agency, Clarity Sports International, LLC, versus CAA, Redland Sports (a company involved in the Galloway signing) and related individuals (but not France) for tortious interference. Of note in that case, in a March 8, 2024 order, the Court granted Bernstein’s motion for sanctions arising out of CAA’s conduct during discovery. Specifically, the Court ordered that Bernstein may “present evidence of [the defendants’] discovery defaults and delays at trial in support of a claim that this alleged concealment constitutes evidence of consciousness of guilt.”
A determination on France’s motion to vacate Kaplan’s 2023 decision may help clarify some issues prior to the trial and thus may be forthcoming. It consequently appears that there will soon be the decisive litigation results upon which the NFLPA and CARD seem to be waiting before acting.
That waiting, however, does not seem necessary. Even if a court were to find that Kaplan’s arbitration decision on damages should be vacated or amended in some way, it would (or should) not change the fundamental factual findings of the Third Circuit and Kaplan that France engaged in fraudulent conduct.
Either way, the stage is set for the NFLPA and CARD to act on France’s status. His competing agents will want and expect a speedy and forceful sanction.
Neither the NFLPA nor France’s attorney responded to a request for comment.
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