Zion Williamson Seeks Protective Order, Calls Inquiry Into Duke Eligibility ‘Invasive’ And ‘Irrelevant’

A contractual dispute between Zion Williamson and his former marketing agent over the validity of their contract and whether it violates a North Carolina law designed to protect student-athletes from unregistered agents has expanded into a far-reaching – and possibly irrelevant – inquiry into whether Williamson received improper economic benefits to play basketball at Duke University.

These explosive ‘pay-for-play’ allegations first surfaced in a series of discovery requests that his former marketing agent, Gina Ford (the owner of Prime Sports Marketing) publicly filed earlier this month in a nearly one-year old Miami-Dade County lawsuit that she had instituted against Williamson and his new agents, Creative Artists Agency (CAA), over the termination of her exclusive marketing agreement. That lawsuit was filed eight days after Williamson had filed his own lawsuit in North Carolina federal court seeking to have that agreement declared invalid on the basis that it violated the North Carolina’s Uniform Athlete Agents Act because Ford had not registered with the state as an “athlete-agent” during her dealings with Williamson and his family while he was still enrolled at Duke.

Are the ‘pay-for-play” allegations relevant or even discoverable?

One of the key questions that will need to be resolved early on is whether Williamson’s “eligibility” as a student-athlete is even relevant in a private contractual dispute between a player and his former agent. Should events and circumstances predating the relationship between Ford and Williamson bear on the validity of a contract that was formed after Williamson had already completed his freshman season at Duke? Should the agent be allowed to nullify Williamson’s attendance at Duke when her claim for damages is largely predicated on his athletic achievements at the school?

The answers to these questions may be soon at hand. Last Friday, Williamson’s legal team filed a motion with the Miami-Dade County Circuit Court, asking that the requested discovery against him be “stayed” (meaning put on hold) pending the resolution of Williamson’s appeal of that court’s order denying his motion to dismiss that action for lack of personal jurisdiction. Alternatively, Williamson’s attorneys have asked the Florida court to enter a “protective order” against Ford’s requested discovery, arguing that it is “invasive, “burdensome,” “legally irrelevant,” and “nothing more than a fishing expedition aimed at tarnishing Williamson’s reputation.”

The first ground for relief is fairly straightforward. It seeks to temporarily pause any and all discovery against Williamson in the Florida court action while he is pursuing an appeal before Florida’s Third District Court of Appeal over whether he can even be sued in Florida. Williamson’s attorneys argue that he would suffer “irreparable harm” if forced to participate in burdensome discovery in a Florida lawsuit while challenging that court’s jurisdiction over him, noting that Florida law authorizes immediate appeals of lower court rulings on personal jurisdiction precisely to avoid that harm.

The second part of Williamson’s motion is where things get more interesting. It is the first shot across the bow in what is shaping up to be a fierce discovery battle over the relevancy of Ford’s (unproven) allegations that Williamson received improper economic benefits to attend Duke. Unlike the request for a stay, which seeks only a temporary halt to discovery, the protective order that Williamson seeks would bar Ford and her attorneys using the discovery process to examine Williamson and others over whether his attendance at Duke resulted from any improper payments.

In Florida, a party seeking a protective order to restrict discovery must demonstrate “good cause.” Along those lines, Williamson characterizes Ford’s discovery requests on the eligibility issue as “legally irrelevant,” “unduly burdensome,” “invasive” and “aimed at embarrassing him, his family, his former coaches, and his former school.”

In order to be discoverable under Florida court rules, the requested information must be “relevant” to the subject matter of the pending action or “reasonably calculated to the lead to the discovery of admissible evidence.” (Fla. R. Civ. P. 1.280(b)(1)).

On the issue of relevancy, Williamson’s attorneys note that “student-athlete” status under the UAAA does not turn exclusively on one’s “eligibility” to compete in intercollegiate athletics. Williamson’s attorneys make the critical point that the definition of “student-athlete” under the UAAA also includes any individual who “engages in” intercollegiate sports, irrespective of whether they are “eligible” to do so.

As Williamson’s attorneys explain in their motion, “the UAAA defines ‘student-athlete’ broadly as “[a]n individual who engages in, is eligible to engage in, or may be eligible in the future to engage in any intercollegiate sport,” but not an individual who is ‘permanently ineligible.’” N.C. Gen. Stat. Ann. § 78C-86(11). Invoking basic principles of statutory interpretation, Williamson’s attorneys reason that the inclusion of the word “or” in the statute means that an individual need only fit into one of the three categories to be considered a “student-athlete” under the UAAA. Thus, anyone who is, in fact, engaged in or eligible to engage in intercollegiate athletics at the time of being recruited or solicited is deemed a “student-athlete” for purposes of the statute.

It is undisputed that Williamson played basketball for Duke during the 2018-19 season. Under the UAAA definition, Williamson’s participation in those games automatically vested him with the status of “student-athlete.” As such, Williamson’s attorneys argue that any discovery directed to the “eligibility” prong of the UAAA definition is irrelevant because his participation in the games is what made him a “student-athlete” for purposes of the statute, and it cannot be taken away from him after the fact. It can’t be unseen or unraveled. Given the broad scope of the UAAA’s definition, Williamson’s attorneys describe Ford’s and Prime’s discovery requests as a “post-hoc effort to cast doubt on Williamson’s status as a ‘student-athlete’ during his time at Duke — and thus shift the blame to him for their own failure to comply with a North Carolina law that is designed to protect him from overreaching agents.”

Characterizing it as nothing more than a “fishing expedition,” Williamson’s attorneys hone in on what they believe is the true motivation behind the discovery requests: to “maximize potential embarrassment and media coverage in an attempt to improperly gain settlement leverage.” As evidence of this, Williamson’s attorneys point to “Plaintiffs’ decision to file their discovery requests on the public docket — rather than serving them directly on Williamson, as is the longstanding practice of this Court and Florida law.”

Williamson’s status as a “student-athlete” is a key issue in the case

The UAAA forbids any individual from entering into an agency contract (including endorsement contracts) with a “student-athlete” — or even initiating any “contact” with that person — unless he or she has registered as an “athlete-agent” with the State of North Carolina. (N.C. Gen. Stat. § 78C-88). The key issue in both lawsuits is whether Williamson was a “student-athlete” under the UAAA when he signed the marketing agreement with Ford on April 20, 2019. Five days earlier, Williamson had posted a public video on Instagram announcing his intention to declare for the 2019 NBA Draft. Ford asserts that this public declaration meant that Williamson was no longer a “student-athlete” under the UAAA. Williamson’s attorneys on the other hand, maintain that the posting of a video on social media “does not cause a student-athlete to forego his ability to return to college and continue playing collegiate basketball.” They instead characterize the decision to declare for the NBA Draft as a “formal process, in which a player must ask in writing to be placed on the draft list,” citing provisions of the NCAA Bylaws and the NBA Collective Bargaining Agreement.

Williamson’s status as a “student-athlete” is also meaningful at earlier points in time, such as in January 2019, when Ford first met with Williamson’s family. Under the UAAA, an athlete-agent may not initiate contact with a student-athlete – either directly or indirectly – without holding a certificate of registration from the North Carolina secretary of state. Williamson’s attorneys have provided the North Carolina federal court with “multiple text messages” indicating that Ford may have met with Williamson’s mother and stepfather in North Carolina as early as January 2019 ostensibly to discuss a marketing relationship between Ford and Williamson.

The existence of these meetings in January 2019 (or at any point prior to April 2019) could prove especially problematic for Ford. While there may be a legitimate fact question as to whether Williamson was still a “student-athlete” when he signed his contract with Ford in April 2019 – the resolution of that question will ultimately hinge on when Williamson submitted his paperwork to the NBA (an unknown at this point) – his claim of “student-athlete” status is far more certain and tangible in January 2019, when he was still playing collegiate basketball for Duke and was several months away from declaring for the draft.

If it is established that that Ford “initiated” the contact with Williamson’s family members during that time-frame, then any ensuing written agreement – even if it was entered into after the date that Williamson formally declared for the NBA Draft and renounced his remaining college eligibility – would be invalid. The UAAA provides that any agency contract “resulting from conduct in violation of” its provisions is “void.”

To avoid that fate, Ford would need to either: (i) convince a North Carolina judge not to apply the UAAA – a tall order for a contract negotiated and executed in North Carolina involving a North Carolina student-athlete whose collegiate exploits were the very impetus for the contract — as alleged in Ford’s own pleadings; or (ii) persuade the court or jury that Williamson was never a “student-athlete” to begin with.

Ford put the latter of these two options in play in both the Florida and North Carolina lawsuits a little over 2 weeks ago, causing a major media maelstrom (see here, here and here for some noteworthy examples).

Ford’s recent efforts to nullify Williamson’s status as a “student-athlete”

On May 6th, Ford filed a request for admissions and interrogatories in the Miami-Dade County Circuit Court lawsuit setting forth a series of questions designed to elicit an admission by Williamson that he and/or his parents received “gifts, money and/or other benefits” from persons acting on behalf of Duke in order to persuade Williamson to play basketball at Duke.

Two days later, on May 8th, Ford filed an answer in the North Carolina federal case that upped the ante considerably: she alleged that Williamson was not a “student-athlete” when he enrolled at Duke in 2018 due to a violation of “one or more of the NCAA and/or UAAA rules” that “voided” Williamson’s eligibility and “rendered him ineligible to be a ‘student-athlete’ and/or further rendered his eligibility voidable under the NCAA and/or the UAAA rules and regulation[s].”

Under Ford’s theory, if Williamson and/or his parents received money or other economic benefits to incentivize Williamson to play college basketball at Duke, that would be a violation of NCAA rules and thereby “retroactively” nullify Williamson’s status as a “student-athlete” from the moment he entered Duke in 2018 through and including April 2019, when he signed his contract with Ford and Prime Sports.

In other words, if Williamson was never eligible to be a NCAA “student-athlete” because he was paid money to attend Duke, then he cannot avail himself of the UAAA’s protections, which apply only to “student-athletes.” And, if he was not a bona fide “student-athlete” from the outset of his tenure at Duke, then any meetings between Ford and Williamson’s family occurring prior to April 2019 would evade scrutiny under the UAAA, providing a significant boost to Ford’s legal fortunes.

The next steps in both the Florida and North Carolina lawsuits

Williamson’s motion for stay and/or protective order is scheduled to be orally argued before Judge David C. Miller of the Miami-Dade County Circuit Court on June 2nd. Ford and Prime Sports have not yet filed a response to Williamson’s motion. (Forbes has reached out to both sides for comment. The attorneys for Ford and Prime did not provide any comment prior to publication of this article, and Williamson’s attorneys did not wish to provide any comment beyond what was set forth in their motion).

This issue may also soon surface in the related North Carolina federal court action, which is on a considerably faster track than the Florida case. With Williamson’s Florida appeal on the issue of personal jurisdiction effectively staying the case against him as a practical matter – and with no end to that appeal in sight – the parties will likely prioritize the earlier-filed North Carolina federal action since that case is ready to proceed to discovery after that court denied Ford’s motion to dismiss in late April.

However, before discovery can commence in North Carolina, the attorneys for Ford and Williamson must “meet and confer” in accordance with Federal Rule of Civil Procedure 26(f) and send a proposed order to the court outlining an agreed discovery schedule. The court will then convene an initial pretrial conference, after which it will issue a formal scheduling order laying out all the key benchmarks in the case, such as the discovery schedule, the deadline for filing dispositive motions, and the date of the trial. None of this has occurred yet, meaning that discovery in the North Carolina case is on hold for now. It may be another month (or two) before the parties will be allowed to serve discovery requests or take depositions in the North Carolina federal case.

The battle over the relevancy of Williamson’s past eligibility at Duke will likely surface in the North Carolina federal case in either of two ways. On the heels of their recently-submitted motion for partial judgment on the pleadings, I would not be surprised at all to see Williamson’s legal team follow that up with a motion to stay discovery pending the resolution of that dispositive motion. Or, alternatively, once the parties get the go-ahead to start discovery in North Carolina, Williamson’s attorneys could file a motion for a protective order similar to the one they filed late last week in Florida. One way or another, the relevancy issue will be teed up shortly in North Carolina.