Illegal Procedure

by Josh Luchs

  But Uberstine didn’t sign all the best USC players during Carroll’s tenure. In 2003, agent David Dunn promised Pat Kirwan, perhaps Carroll’s closest friend, $100,000 for helping to deliver the USC quarterback and Heisman Trophy winner Carson Palmer to his agency, Athletes First. (Kirwan and Carroll’s friendship goes back to when they both worked for the Jets, continuing through Carroll becoming head coach of the Seattle Seahawks and Kirwan’s name even being bandied about as a GM candidate.) The Dunn-Kirwan arrangement was controversial since, at the time, Kirwan was a commentator for NFL.com, a job one might assume required independence and objectivity, not simultaneous employment by a sports agency … aka “runner.” Once in the door, having represented the number-one draft pick in the country, Dunn signed ten USC players during the Carroll years.

  Compare Uberstine’s or Dunn’s results with Tom Condon of CAA, acknowledged to be one of the top agents in the game, who signed only four players. Or Drew Rosenhaus, supposed powerhouse agent who only signed two USC players. I signed three—one with Wichard, two with Feldman.

  Thanks to our record, plus the Hollywood wild card, Steve and I were meeting with almost any player we wanted, not always signing them, but always in the hunt. Between the players we already had, the defections to us, and the rookies, we were off to a great start at Gersh, and I was finally making a pretty good living—in six figures with bonuses and benefits.

  After signing Josh Bullocks in 2005, we got his twin brother, Daniel, in 2006. We had advised the brothers, and their mother, Peaches, to avoid coming out the same year and competing against each other in the draft (they were both safeties, and both played for the same school, Nebraska). The odd thing was, a year apart, both were drafted number forty overall, eighth in the second round, Josh to the Saints, Daniel to the Lions. The same year, 2006, we had Richard Marshall, defensive back from Fresno State, picked in the second round by the Panthers.

  We went to Columbus, Ohio, to make a run at stars Troy Smith and Santonio Holmes. Our intro came by way of Steve’s former client, Greg Bell, a former first-round draft pick out of Notre Dame who in 1988 had led the NFL in rushing TDs, played for the Rams and Bills, and was now a financial advisor with ties to players at Ohio State. Troy Smith, it turned out, wasn’t going to come out until the next year, 2007, when he’d go on to win the Heisman Trophy but free-fall in the draft after a big loss to Florida in the BCS Championship. But Santonio was still available. We met him as he was coming out of the football building. As I recall, when he saw us, he must’ve immediately thought, these guys are here to offer me money, because early in the conversation, he said to us, “Listen, I want to save you the time. We don’t need to meet. I’ve been taking money from Joel Segal the last couple years, and he’s been taking care of my family too.” Clearly, while I had stopped paying players, the practice hadn’t died. Segal was a prominent agent who had gotten busted by the NFLPA for improper benefits but had been reinstated, and had signed Reggie Bush and become an NFLPA “favored” agent. He signed Santonio, who was taken in the first round by the Steelers. Santonio later denied having said Segal paid him, but I heard him say it and so did my partner, Steve Feldman.

  “Favored Agents”

  I know firsthand that the NFLPA has favored agents because of a conversation I had with a former client and friend. Nolan Harrison and I were as close as a player and agent could be. In fact, when the Rodney King verdict was read in 1992 and riots broke out, Nolan was with me at my parents’ house and my mother wouldn’t let him leave the house for a few days fearing for his safety. Never mind that Nolan was a six-foot seven-inch, three-hundred-plus-pound defensive tackle for the L.A. Raiders who could take care of himself. To my mom, he was just a twentysomething kid who needed someone to look out for him. I was honored when Nolan asked me to be a groomsman in his wedding. And Nolan was the only client I had who’d attended both of my parents’ funerals, signing a deal Doc and I had completed with the Pittsburgh Steelers in my parents’ driveway while we were sitting shiva for my mother.

  Nolan became the team’s Players’ Union representative and had gotten close with the powers at the NFLPA office in Washington. As the last active client I had recruited with Doc, it came as a shock when he fired us without any explanation. I was stung by it for years. After Nolan was long retired, and I had become the VP of football at Gersh, one day he came to see me and explained what had happened. Apparently, some of the honchos at the NFLPA had questioned how he could be represented by agents like me and Doc. They listed agents they preferred, not just hinting but naming names, and it’s safe to say that neither Doc nor I was among the names they listed. So he hired an agent from the NFLPA “favored” agent list, Ralph Cindrich.

  A good gauge of how you’re doing as an agent isn’t just who you sign, it’s who you meet with, who feels they need to meet with you. Feldman-Luchs-Gersh was getting to be a must-meet for some of the top-tier players. It was like having a list of who you had dated on your résumé. For the 2007 draft, we had good talks with Steve Smith, the wide receiver who played at USC and was drafted by the Giants in the first round. He signed with Eddie DeBartolo, who’d been an owner of the San Francisco 49ers but was barred from active control of the team for a year, and fined $1 million, for failing to report a felony. DeBartolo later lost control of the team altogether and opened a sports firm. To recruit Smith, he called in the biggest of big guns and got All-Everything receiver Jerry Rice to put the heat on Smith to sign. Even so, I kept on top of Smith, figuring maybe he’d defect at some point.

  We also met with JaMarcus Russell, the quarterback out of LSU who would be the number-one draft pick of 2007 by the Raiders. We got to him by way of Marcus Spears, who had been his roommate; we even met with his mother at their home in Mobile, Alabama. To get his attention, we bought a not-very-subtle billboard ad close to JaMarcus’s apartment that he had to drive past every day on the way to practice. It featured huge photos of his good friend Marcus Spears both as National Champion at LSU and as a Dallas Cowboy and was signed “Gersh Sports” so the connection between college success and NFL success was crystal clear: us. We met with Joe Thomas’s dad about Joe, an offensive tackle from Wisconsin and a 2007 first-round pick by the Browns. Plus we were in the running for Marshawn Lynch, a Cal running back drafted in the first round by the Bills, and Adam Carriker, a Nebraska defensive end, drafted in the first round by the Rams (a bad fit for the Hollywood pitch).

  We were even getting meetings with players from teams we’d never previously gotten around to recruiting. Just before the 2007 Rose Bowl in Pasadena, we had somebody who was tight with a lot of Michigan players hook us up with LaMarr Woodley, a linebacker and second-round pick by the Steelers. We were late on these guys and had never flown to Ann Arbor to meet with them, but LaMarr came to the office at Gersh along with his teammate Alan Branch, a defensive tackle and second-round pick by the Cardinals.

  We did sign Chris Henry, a running back from Arizona, ultimately a second-round pick by the Titans in 2007. We’d gotten him a part in a TV pilot for MTV, “24 Before,” a docu-drama in which people were followed for twenty-four hours before a major life-altering event, in his case the NFL draft. They were going to intercut between Chris and a young female soldier being shipped out to Iraq but Chris’s dad, who was a corrections officer, vetoed the idea of cameras in his house. Even though Steve Smith had signed with DeBartolo, we put him in the show and he had MTV cameras with him on draft day, something Eddie DeBartolo couldn’t do. We thought it might pay off for us down the road. In the end Chris Henry was the eighteenth pick and Smith was nineteenth, back-to-back in the second round.

  We were also chasing Kenny Irons, the Auburn running back. He and his brother, David Jr., a cornerback at Auburn, both NFL prospects, came from a big football family. Two uncles and three cousins played college and/or pro ball. Kenny and David’s father, David Sr., made it clear that the selection of an agent went through him, or rather through his garage. To paraphrase, his blunt terms were,
“Whoever is going to represent my boys is going to make a lot of money and whoever that’s going to be is up to me. Their agent is going to buy me an S-class Mercedes.” That was the price of representation. Plus, he had his own gym and said whatever an agent might have paid for a facility to train his boys before the Combine, would be paid to him. The Irons brothers didn’t sign with us but it was because we backed out early due to the “terms” dictated. They eventually went with Fletcher Smith. Whether he ponied up the price of entry, who knows. Kenny got hurt, was drafted in the second round by the Bengals, got hurt again, and only played two years. David was a sixth-round pick by the Falcons. Did the father get his Mercedes? I don’t know that either. If it was after the season, it wouldn’t have been illegal to give him a car unless the promise of the car came during the season, in which case, it’s an illegal inducement to sign. In any case, based on the Irons’s careers it would have been a bad investment. And it would have been sleazy, not that that’s anything new.

  Solo, I made my first trip to Florida State to meet with linebacker Buster Davis, short, squat, and undersized, and running back Lorenzo Booker, also undersized but not in ego. I really hit it off with Davis; I flew to Daytona to meet his family at his request, and then he called us the night before the Orange Bowl to say when he came out to Los Angeles, he wanted us to have arranged for a Mercedes for him, with his specific list of options. I ran around to dealers to find somebody who would do all the paperwork, have a car ready for him to buy, with the options he wanted, just waiting for his signature, and then he vanished. Somewhere in the Valley, a Mercedes was sitting on a lot that never got picked up and a car salesman was pissed off at me. I never heard from Buster again. He signed with another agent, Todd France, and again, I have no idea if he ever got his Benz. As for Lorenzo Booker, he was good-looking, charismatic, with stars in his eyes. In fact, he told me that when he had the ball and was headed for the sideline, he just let himself run on out of bounds, rather than fight for an extra yard and run the risk of hurting his body. He was saving it for a longer career. Lorenzo had a cousin, a wanna-be agent, who got himself inserted into the process, came to visit us a couple of times, and eventually got himself a cut of whatever deal they’d make. They went with an agent named Ryan Slayton who I’d never heard of. Lorenzo has had an inconsistent career in football and no career in Hollywood, so we dodged a bullet.

  In 2007, Troy Smith ended up going with Eddie DeBartolo Jr., the NFL owner–turned felon–turned agency owner, who had also talked to Toi Cook about joining us at Gersh. Big-time sports can be a small, sordid world. And the rules can be, shall we say, fluid. You can’t own a team if you commit a crime, but you can own a company that represents players. Agents can’t lend money to players but coaches can steer players to agents. Players can’t take money while in college but if the fact that they had taken money comes out once they turn pro, there are no consequences to them individually. And it’s incestuous: the agent who was your enemy on one deal is your ally on the next. That is, the fucker becomes the fuckee and vice versa.

  And I was about to become the fuckee.

  I was recruiting for the 2008 draft, going after Keenan Burton, a wide receiver from Kentucky, drafted by the Rams; Eddie Royal, a Virginia Tech wide receiver drafted by the Broncos; and Dustin Keller, a tight end from Purdue, first-round draft pick by the Jets. Keller was so taken with us and the Hollywood world that he flew his brothers out to L.A. on his own dime and went to Venice Beach and bought his one brother, a big reggae fan, a painting of Bob Marley. And then I had my world turned upside down.

  CHAPTER 8

  Luchs vs. Wichard

  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.