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Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC

United States District Court, M.D. North Carolina

July 15, 2015

CHAMPION PRO CONSULTING GROUP, LLC, and CARL E. CAREY, JR. Ph.D., Plaintiffs,
v.
IMPACT SPORTS FOOTBALL, LLC, MITCHELL FRANKEL, TONY FLEMING, and MARVIN AUSTIN, Defendants

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For CHAMPION PRO CONSULTING GROUP, INC., CARL E. CAREY, JR., PH.D., Plaintiffs: KAREN MCKEITHEN SCHAEDE, LEAD ATTORNEY, W. HOLMES LILLEY, III, KAREN MCKEITHEN SCHAEDE, PLLC, GREENSBORO, NC; KEVIN J. DOLLEY, LEAD ATTORNEY, LAW OFFICES OF KEVIN J. DOLLEY, LLC, ST. LOUIS, MO; MARK A. KOUPAL, LEAD ATTORNEY, LAW OFFICE OF KEVIN J. DOLLEY, LLC, ST. LOUIS, MN.

For IMPACT SPORTS FOOTBALL, LLC, MITCHELL FRANKEL, TONY FLEMING, MARVIN AUSTIN, Defendants: ROBERT FLYNN ORR, LEAD ATTORNEY, ANDREW H. ERTESCHIK, POYNER SPRUILL, LLP, RALEIGH, NC.

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MEMORANDUM OPINION AND ORDER

William L. Osteen, Jr., United States District Judge.

Plaintiffs Champion Pro Consulting Group, LLC (" Champion Pro" ) and Carl E. Carey, Jr., Ph.D. (" Carey" ) (collectively " Plaintiffs" ) initiated these proceedings against Defendants Impact Sports Football, LLC (" Impact Sports" ), Mitchell Frankel (" Frankel" ), Tony Fleming (" Fleming" ), and Marvin Austin (" Austin" ) (collectively " Defendants" ), alleging a series of actions that violate Section 75-1.1 of the North Carolina General Statutes and that constitute a civil conspiracy.[1]

Presently before this court is Defendants' Motion for Summary Judgment. (Doc. 62.) Plaintiffs have filed a memorandum in support of their motion and a statement of material facts. (Docs. 63, 66.) After Defendants filed their motion, the parties continued to conduct discovery.

At the close of discovery, Plaintiffs filed a Response in Opposition to Defendants' Motion for Summary Judgment along with a wide array of exhibits and extensive statements of material facts. (Docs. 127, 128, 129, 130, 131, 132.) Defendants then filed a reply, accompanied by a response to Plaintiffs' statements of material facts. (Docs. 137, 138.) This court ruled on several preliminary matters (Doc. 143), and on March 30, 2015, a hearing was held on Defendants' Motion for Summary Judgment. (Minute Entry 3/30/2015.)

Defendants' motion is now ripe, and for the reasons stated herein, this court will grant Defendants' Motion for Summary Judgment.

I. FACTS

The parties have submitted extensive lists of facts and characterized those facts as material and either undisputed or controverted. (Docs. 66, 130, 131, 138.) The parties have incorporated these documents by reference in their briefing on the summary judgment motion. This practice is

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neither allowed by the Local Rules of the Middle District of North Carolina, nor is it condoned by this court. See LR 7.3(d) (limiting briefs in support of motions and responsive brief to 20 pages). Nonetheless, this court has reviewed these documents, and in keeping with its obligations under Fed.R.Civ.P. 56, this court provides the following recitation of material facts that are supported by record evidence.

The current controversy involves a dispute between Robert Quinn's current and former agents. While Robert Quinn (" Quinn" ) and Christina White (then Robert Quinn's girlfriend and now Quinn's wife (" C. Quinn" )), were originally named as defendants, Plaintiffs have dismissed all claims against both individuals, first without prejudice, (Stipulation for Dismissal of Def. Robert Quinn (Doc. 12)), and then with prejudice, (Stipulation of Dismissal with Prejudice (Doc. 39)). Quinn played college football at the University of North Carolina at Chapel Hill (" UNC" ) from 2008 until he was deemed permanently ineligible in 2010. In 2011, he was chosen as the 14th overall pick in the National Football League (" NFL" ) Draft by the St. Louis Rams. After the NFL and the NFL Players Association (" NFLPA" ) agreed to a new Collective Bargaining Agreement (" CBA" ) in July 2011, Quinn signed a contract on August 4, 2011, for $4,073,468 over his first four seasons with the Rams and with a signing bonus of $5,362,585. (Pls.' Ex. 43, NFL Player Contract between Quinn and The St. Louis Rams, LLC (Doc. 128-11) at 1, 5.) This lawsuit involves a dispute between Quinn's former " Contract Advisor" or agent - Plaintiff Carey and his firm, Champion Pro - and Quinn's present agent - Defendant Fleming and his firm, Impact Sports.

Plaintiff Carey is a certified registered advisor with the NFLPA and an associate professor at Lonestar College in Kingwood, Texas. While Quinn was a student at UNC, Carey cultivated a relationship with Quinn, and on December 4, 2010, Quinn signed a Standard Representation Agreement (" SRA" ) with Carey. (Pls.' Ex. 1, SRA between Carey and Quinn (Doc. 127-1).) As Quinn's agent, Carey performed a variety of services to assist Quinn with his transition to the NFL and to help Quinn prepare for the NFL Combine, his Pro Day, and the NFL Draft. (Pls.' Statement of Additional & Controverted Material Facts (" Pls.' Statement Add'l Facts" ) (Doc. 131) ¶ ¶ 158-66.)

In late July 2011, Quinn terminated his relationship with Plaintiffs and signed a new SRA with Defendant Fleming and his firm, Impact Sports. Defendants had wanted to represent Quinn since at least May of 2010. (See Pls.' Ex. 25, Recruiting List 2010 (Doc. 129-13) at 2.) Defendants admit that they met with Quinn in Miami in mid-June 2011, while Quinn was represented by Plaintiffs. (Defs.' Statement of Material Facts (Doc. 66) ¶ 8; see also Pls.' Ex. 6, Tony Fleming Deposition Excerpts Vol. I (" Fleming Dep. Vol. I" ) (Doc. 127-7) at 38 (stating that Quinn " started coming around" as Austin signed an SRA with Impact Sports, which occurred on June 15, 2011).)[2] Defendants also admit that they met with Quinn again between that meeting and mid-July. (Pls.' Ex. 18, July 4, 2011 Email (Doc. 129-4); Pls.' Ex. 6, Fleming Dep. Vol. I (Doc. 127-7) at 40.) Later, on July 20, 2011, Quinn notified Carey by text message that he was terminating his SRA with Plaintiffs. As a text message is not a sufficient means of terminating an SRA under the NFL-NFLPA CBA, Quinn formally terminated his SRA with Plaintiffs via fax on July 22, 2011.

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(Pls.' Ex. 22, Fax from Quinn to Carey (Doc. 129-10).)

Quinn then signed an SRA with Defendant Fleming, dated July 28, 2011. (Pls.' Exs. 4-5, SRA between Fleming & Quinn (Docs. 127-5, 127-6).) Along with executing an SRA, Quinn and Defendants also entered into a " Marketing Advance Agreement," pursuant to which Impact Sports was to advance Quinn $100,000 by July 31, 2011, to be recouped out of Quinn's " Marketing Income." (Pls.' Ex. 15, Marketing Advance Agreement (Doc. 127-16) ¶ ¶ 2-3; Pls.' Ex. 41, Impact Sports Check 1058 (Doc. 128-9) (directing payment of $50,000 to Quinn on July 29, 2011); Pls.' Ex. 42, Impact Sports Check 1059 (Doc. 128-10) (same).)

It is important to note that these events take place in the context of the " lock-out" that resulted from a breakdown in CBA negotiations between the NFL and the NFLPA. In their Amended Complaint, Plaintiffs explain that from March 11 to July 25, 2011, the NFLPA decertified as a union representing NFL players and, among other things, regulating their Contract Advisors. (Am. Compl. (Doc. 17) ¶ ¶ 51-53.) As part of this process, the NFLPA discontinued its agent regulation system, making it possible for agents to contact and communicate with players under existing contracts with other agents, something that is normally prohibited by the NFLPA. (Id.)

While the parties are generally in agreement as to the foregoing timeline, the parties dispute a number of facts that Plaintiffs use to infer that Defendants recruited Quinn and induced Quinn to terminate his SRA with Plaintiffs. As a general matter, Plaintiffs rely extensively on the deposition of Sean Kiernan to show that genuine disputes exist as to their allegations. Kiernan began working for Impact Sports in May 2003 and resigned on July 8, 2014. (Pls.' Ex. 7, Sean Kiernan Oral Deposition (" Kiernan Dep." ) (Doc. 127-8) at 3-4.) Defendants describe Kiernan as " a disgruntled former employee." (Defs.' Resp. to Pls.' Statement of Add'l Facts (Doc. 138) at 4.)

As a means of giving context to the following disputed facts, this court notes that Plaintiffs make three general allegations to support their claims that Defendants committed unfair and deceptive acts or practices and engaged in a civil conspiracy: (1) Defendants illegally used " runners" to recruit Quinn as a client; (2) Defendants paid a large amount of money to Quinn in the form of a " Marketing Advance" as a means of inducing him to terminate his SRA with Plaintiffs; and (3) Defendants committed these acts as a means of retaliating against Plaintiffs. (See Pls.' Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. (" Pls.' Mem." ) (Doc. 132) at 2.) In this section, this court outlines the factual disputes concerning these three claims.

First, Plaintiffs claim that individuals associated with and working on behalf of Impact Sports began recruiting Quinn well before July 2011. Plaintiffs identify Todd Stewart as being one of the individuals who actively recruited Quinn on behalf of Defendants. Stewart and Defendant Frankel met each other in 1997 and were reintroduced in 2010 by Defendants Fleming and Austin. (Pls.' Ex. 11, Mitch Frankel Deposition (" Frankel Dep." ) (Doc. 127-12) at 24.) Defendants admit that Stewart worked with Impact Sports on a trial basis from roughly 2009 until the NFL lock-out in 2011, mainly by introducing the firm's agents to athletes whom Stewart knew, and that Stewart acted as an intermediary between Quinn and Impact Sports beginning in June 2011. (Defs.' Mem. of Law in Supp. of Mot. for Summ. J. (" Defs.' Mem." ) (Doc. 63) at 8; Pls.' Ex. 10, Anthony Fleming Deposition

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Excerpts Vol. III (" Fleming Dep. Vol. III" ) (Doc. 127-11) at 41-43.) Stewart says he does not remember receiving money from Impact Sports (see Pls.' Ex. 19, Todd Stewart Deposition (" Stewart Dep." ) (Doc. 129-5) at 15, 27), but Plaintiffs point to reports made by Kiernan that Stewart was actively working on behalf of Impact Sports to recruit Quinn well before June 2011. Kiernan says he asked whether Stewart was being paid one-third of what Impact Sports received from Quinn's contract, and Fleming confirmed this fact at some point in 2011 or 2012. (Pls.' Ex. 7, Kiernan Dep. (Doc. 127-8) at 48-49.) Kiernan also remembers seeing advances paid to Stewart through Western Union during 2011 and 2012, in amounts as high as $5,000 per month. (Id. at 49.) Fleming explains in his deposition that (1) Stewart was helping introduce players to the agents at Impact Sports but was not an employee; (2) Stewart was eventually given a referral fee when Quinn signed as a client with Impact Sports; (3) Fleming loaned money to Stewart three or four times during the relevant period; and (4) Impact Sports reimbursed Stewart's expenses for coming to the June 2011 meeting in Miami with Quinn because Stewart " made the meeting happen." (See Pls.' Ex. 6, Fleming Dep. Vol. I (Doc. 127-7) at 23-24, 27-29.)

Plaintiffs further assert that Defendant Marvin Austin, Quinn's friend and former teammate, encouraged Quinn to sign with his agent, Impact Sports. (See Pls.' Ex. 12, Marvin Austin, Jr. Deposition (" Austin Dep." ) (Doc. 127-13) at 15; Pls.' Ex. 20, July 12, 2011 Email (Doc. 129-6) (" [Fleming], Balmer, and Austin are making a hard push at Quinn today!" ).) Plaintiffs also point to the deposition of Constance Orr to show that Quinn was receiving large amounts of money while a student at UNC (Pls.' Ex. 24, Affidavit of Constance Orr (" Orr Aff." ) (Doc. 129-12) ¶ 7), but Plaintiffs do not cite any admissible evidence that would suggest who was providing the money. (See Pls.' Statement of Add'l Facts (Doc. 131) ¶ ¶ 120-26 (citing hearsay statements of Quinn, who is not a party to this suit).)

Additionally, Plaintiffs cite a tremendous number of calls that occurred between Fleming, Austin, Stewart, and C. Quinn. (Id. ¶ ¶ 315-381.) Calls between Fleming and Stewart date back as far as June 21, 2010. (Id. ¶ 315.) Calls between Fleming, Stewart, and Austin date back as early as November 5, 2010. (Id. ¶ 323.) The first mention of C. Quinn being on the call log is June 6, 2011, shortly before the meeting between Quinn, C. Quinn, and Fleming in Miami. (See id. ¶ 349.) Although Plaintiffs point out that Fleming called a phone with the same area code as Robert Quinn's phone on June 27, 2010 (id. ¶ 318), the " first documented call between a number known to belong to Robert Quinn and a number known to belong to Impact Sports occur[ed] on July 21, 2011," the day after Quinn unofficially ended his relationship with Plaintiffs. (Id. ¶ 373.) Plaintiffs note that none of the many text messages sent by any of the Defendants during this time period have been produced. (See id. ¶ ¶ 307-10.)[3]

Although Defendants do not dispute that they met with Quinn in Miami in mid-June 2011 (see, e.g., Pls.' Ex. 6, Fleming Dep. Vol. I (Doc. 127-7) at 29), there was some dispute at the hearing on this motion as to

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whether this meeting was a chance encounter, a meeting set up by Quinn in his effort to acquire new representation, or a meeting initiated by Defendants. Fleming credits Stewart for the meetings, saying that Stewart " made the meeting happen." (Id.) Fleming says that Stewart called Fleming and said that Quinn had questions and wanted to speak with Fleming. (Id. at 24.) Thus, this court will not conclude that it was a " chance encounter."

Second, along with the evidence of recruitment, Plaintiffs claim that the " Marketing Advance" given by Defendants to Quinn was in fact a paid inducement to terminate the SRA with Plaintiffs and sign with Defendants. Quinn and Fleming first discussed a marketing advance during meetings that occurred sometime " over a month's time" after the mid-June 2011 meeting in Miami - and thus, before Quinn terminated his SRA with Plaintiffs. (See Pls.' Ex. 6, Fleming Dep. Vol. I (Doc. 127-7) at 40.) In support of their allegation regarding the true nature of the Marketing Advance between Quinn and Defendants, Plaintiffs assert that an advance of this amount is irregular, as the St. Louis market is a historically difficult market for NFL rookies to acquire marketing opportunities. (See Pls.' Ex. 7, Kiernan Dep. (127-8) at 44-45; see also Pls.' Ex. 6, Fleming Dep. Vol. I (Doc. 127-7) at 40 (citing the market research done by Sean Kiernan).) Specifically, Kiernan estimates that before he left Impact Sports in 2014, Quinn had only generated approximately $10,000 in marketing revenue. (Pls.' Ex. 7, Kiernan Dep. (Doc. 127-8) at 45.) Additionally, Plaintiffs also note that Quinn requested that the 20 percent marketing fee be removed from one of his later invoices from Defendants. (Pls.' Ex. 8, Dec. 18, 2011 Email from Fleming to Frankel (Doc. 127-9).) In response, Defendants submit evidence that Quinn was later charged and did pay the marketing fee. (Defs.' Reply Mem. of Law in Supp. of Mot. for Summ. J. (" Defs.' Reply" ), Ex. A, Mar. 28, 2012 Invoice (Doc. 137-1) at 2.) Nonetheless, Plaintiffs argue that this arrangement leads to the reasonable inference that Quinn was never meant to repay the Marketing Advance and that it was merely a means of inducing him to break his SRA with Plaintiffs.

Third, Plaintiffs allege that the improper actions taken by Defendants were not motivated by Defendants' business interests but by a desire to retaliate against Plaintiffs. Plaintiffs posit that Defendants remain bitter over Plaintiff Carey's advice to NFL player Julius Peppers to avoid Impact Sports as Peppers selected an agent before entering the NFL in 2002. (See Pls.' Ex. 21, Carl E. Carey Deposition Vol. II (" Carey Dep. Vol. II" ) (129-8) at 14.) Plaintiffs do not have direct evidence of this purported animosity but cite to Fleming referring to Peppers as the " one that got away" (Pls.' Ex. 10, Fleming Dep. Vol. III (Doc. 127-11) at 39); Frankel mentioning that there was " frustration" at not being able to represent Peppers (Pls.' Ex. 11, Frankel Dep. (Doc. 127-12) at 22); Kiernan's relaying that he heard Frankel tell people at 20 or 30 meetings that Frankel advised Peppers to go back to school for another year, which improved Pepper's draft position but that Impact Sports " lost him over the course of the next year" (Pls.' Ex. 7, Kiernan Dep. (Doc. 127-8) at 26); and Kiernan stating that people were upset around the Impact Sports office at losing the chance to represent Peppers. (Id.) Corroborating their theory of retaliatory animus, Plaintiffs point to an email sent by Fleming on July 4, 2011, asking Kiernan to put together a comparison of Peppers contract, negotiated by Plaintiff Carey, with " what he should have got." (Pls.' Ex. 18, July 4, 2011 Email from Fleming to Kiernan (Doc. 129-4).) Nonetheless, in the surrounding statements within their depositions, Fleming

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and Frankel deny that they felt any animosity toward Carey or even knew who he was or that he now represents Peppers, before the commencement of litigation.

As part of their allegations that Defendants were motivated by retaliation and not business interests, Plaintiffs point to the timing of Quinn's decision to terminate his SRA with Carey. Plaintiffs note that, at the June 2011 meeting in Miami, Defendants " possibly" provided Quinn a sample termination letter to be addressed to Plaintiffs. (See Pls.' Resp. to Defs.' Statement of Undisputed Material Facts (Doc. 130) at 28 (citing Pls.' Ex. 7, Kiernan Dep. (Doc. 127-8) at 36).) However, Plaintiffs point out that Quinn waited until July 22, 2011, to terminate the SRA, and in the meantime, Carey paid for a trip to St. Louis for Quinn's family to look for a home. (Id.) Additionally, Plaintiffs note that Quinn terminated the SRA " mere minutes after Carey informed Quinn that the Rams were interested in initiating contract negotiations." (Id.) Moreover, Plaintiffs assert that, ...


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