Employment & Labor Insider

In an August 2022 decision, the U.S. 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.

Then, in a December 2023 decision, in a partial redo of that arbitration, Arbitrator Roger Kaplan ordered Mr. France to pay Mr. Bernstein $810,846.67, including $450,000 in punitive damages. Despite these rulings, the Players Association has not yet taken any action against Mr. France, to the consternation of his competitors. That is expected to change after an upcoming trial between Mr. Bernstein and the Creative Artists Agency, Mr. France’s former agency, according to a spokesperson for the Players Association.

Unions and agent regulation

Under the National Labor Relations Act, both employees and employers are prohibited from negotiating terms of employment without the union’s involvement or permission.

In sports, this means, for example, that the Players Association has the right to negotiate all of the contracts of the approximately 1,700 players on National Football League rosters. This is impractical, so the Players Association and other unions in professional sports delegate some of that authority to agents.

The NFL-Players Association collective bargaining agreement contains many terms around player employment, including minimum salaries, the terms of the standard player contract, dispute resolution, benefits, work schedules, and more. But there is still a considerable amount of room left to individual negotiation between the player and his agent, on the one hand, and the team, on the other – most notably, the annual salary and length of the contract.

The union process for certifying an agent varies but generally requires an extensive background check, sometimes an exam, and the agent’s agreement to abide by the union’s agent regulations.

First down: Bernstein-France arbitration

Among the rules contained in the unions’ agent regulations is a 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). 

In July 2019, Mr. Bernstein filed a grievance with the Players Association against Mr. France, alleging that Mr. France had violated Players Association regulations by initiating conversations with Mr. Bernstein’s client, then-Detroit Lions wide receiver Kenny Golladay. Mr. Bernstein alleged that Mr. France assisted Mr. Golladay in a card signing, and then ultimately signed him on as a client.

It is not uncommon for agents to bring cases against each other when they perceive that a client was stolen, but there has never been a decision finding that this violated the regulations (cases frequently settle).

In March 2020, Arbitrator Kaplan found in favor of Mr. France. The agents then filed competing actions to vacate or confirm the award. During discovery, it came to light that Mr. France had been untruthful during the arbitration. Specifically, Mr. France had denied both in a pre-hearing deposition and again at the hearing that he had any involvement with Mr. Golladay’s January 2019 card-signing event. But emails produced in those cases showed that Mr. France and his team had arranged and negotiated the contract for the event.

Despite these revelations, a federal district court declined to vacate the arbitration decision.

But the Third Circuit felt differently – and strongly. It found that Mr. France was involved in the card signing and that he had “committed fraud” in the arbitration process. It therefore ordered the March 2020 arbitration decision to be vacated.

Second down: Bernstein-France arbitration revisited

With the prior decision vacated, Mr. Bernstein initiated a new action against Mr. France in March 2023.

In September 2023, Arbitrator Kaplan ruled that the question of whether Mr. France had improperly induced Mr. 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. The new arbitration was limited solely to determining the amount of damages that Mr. France owed to Mr. Bernstein.

On December 28, 2023, Arbitrator Kaplan ordered Mr. France to pay Mr. Bernstein $810,846.67 in damages, including $450,000 in punitive damages. This is the first time punitive damages have ever been awarded in a Players Association arbitration.

Arbitrator Kaplan, the keeper of the Players Association arbitration process, was clearly offended by Mr. France’s conduct. His decision repeatedly referenced Mr. France as having lied or committed fraud, described “lying under oath [as] an abominable offense,” and possibly “also a crime.” He described “Mr. France’s conduct during the 2019 arbitration hearing [as] an affront to good order” and 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.”

Players Association punts

Mr. France is now trying to get a federal court to vacate Arbitrator Kaplan’s decision, and he is seeking to obtain communications between the Players Association and Mr. Kaplan.

All the while, Mr. 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 Mr. France should be drawing the scrutiny of the Players Association’s Committee on Agent Regulation and Discipline (known as “CARD”), a panel of active or former NFL players which has the authority to discipline agents, including by potentially revoking their certification. The Players Association’s 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 [the agent]’s fitness as a Contract Advisor.” In 2016, the Players Association revoked the certification of Ben Dogra, at the time one of the most successful agents in the business, for a variety of infractions.

To date, CARD has not fully investigated the matter. During a session for agents at the NFL Combine in February 2025, Players Association officials referenced the controversy but did take it up or provide any further details. A union spokesperson said that CARD (whose members he declined to identify) would “decide on whether to issue a disciplinary complaint against Mr. France after a decision is issued in the federal case that Mr. France filed seeking to vacate Arbitrator Kaplan’s decision.”

That waiting, however, does not seem necessary. Even if a court were to find that Arbitrator Kaplan’s 2023 decision on damages should be vacated or amended in some way, it would not – or should not – change the findings that Mr. France engaged in fraudulent conduct.

Either way, the stage is set for the Players Association and CARD to act on Mr. France’s status. His competitor agents will no doubt want a speedy and forceful sanction.