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BAUER v. INTERPUBLIC GROUP OF COMPANIES

March 19, 2003

FRANCIS G. BAUER, PLAINTIFF,
v.
THE INTERPUBLIC GROUP OF COMPANIES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Elizabeth D. Laporte, United States Magistrate Judge.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

In this action for intentional interference with contract and unfair competition, brought by plaintiff Francis G. Bauer ("Bauer") against defendants The Interpublic Group of Companies, Inc. ("IPG"), The Partnership, Octagon Football, and Octagon Marketing and Athlete Representation, Inc. ("Octagon"), defendants have filed a motion for summary judgment. For the reasons set forth below, defendants' motion is granted.

I. BACKGROUND

In this action, Bauer alleges that defendants interfered with his contract with National Football League ("NFL") player David Carr ("Carr"). Bauer contends that defendants unlawfully convinced Carr to terminate his contract with Bauer and sign with defendants instead.

Bauer is a contract advisor, commonly referred to as an agent, with the National Football League Players Association. (Bauer Decl. ¶ 2.) He has been an agent for more than 20 years, and provides agency services in the form of contract negotiations, sports career counseling, job placement, and related services to professional football players. (Bauer Decl. ¶ 2.)

For the 2001 college football season, Carr was quarterback for Fresno State University. (Carr

Decl. ¶ 1.) During the fall and winter of 2001, he was heavily recruited by a number of sports agents and agencies throughout the country to represent him in the 2002 NFL draft. (Carr Decl. ¶ 2.)

Bauer first met Carr and his father, Rodger Carr, in the summer of 2001. (Bauer Decl. ¶ 3.) During that meeting, Bauer was told that all dealings with sports agents would be through Rodger Carr because of the close relationship between father and son, and to enable Carr to keep his focus on playing football. (Bauer Decl. ¶ 3.) Bauer and Rodger Carr had several conversations that summer. (Bauer Decl. ¶ 4.) In November, Bauer visited Rodger Carr and Carr's mother, Sheryl Carr, in Bakersfield to discuss the NFL, the services Bauer provides, and how contract negotiations are conducted. (Bauer Decl. ¶ 7.) Bauer spoke with Carr weekly by telephone, and attended every home game. (Bauer Decl. ¶ 6, 8.) After the regular season ended, Bauer met with Carr and his wife, Melody Carr, for two-and-a-half hours about the business aspects of representation. (Bauer Decl. ¶ 12.)

On New Year's Eve, Bauer and his wife attended a football game with the Carr family. (Bauer Decl. ¶ 14.) After the game, Sheryl Carr invited them to attend a party. (Bauer Decl. ¶ 15.) During that party, at 12:03 a.m. on New Year's Day, 2002, Carr signed a representation agreement with Bauer. (Bauer Decl. ¶ 17, and Ex. A.) The contract provided that:

either party may terminate this Agreement effective five (5) days after written notice of termination is given to the other party. Notice shall be effective for purposes of this paragraph if sent by certified mail, postage prepaid, return receipt requested to the appropriate address contained in this agreement.
(Bauer Decl., Ex. A, ¶ 12.)

Carr attests that he signed with Bauer based almost entirely on his parents' recommendation. (Carr Decl. ¶ 3.) Shortly after signing with Bauer, Carr had second thoughts because he was not really involved in the agent selection process. (Carr Decl. ¶ 3.)

Over the next 12 days, Bauer had various business discussions with Carr, introduced him to various NFL players and administrators, and arranged for former Cincinnati Bengals head coach, Bruce Coslet, to come to Fresno to work with Carr. (Bauer Decl. ¶¶ 18-25.) On Friday, January 11, Coslet and Bauer met Carr and two of his friends at the practice field. (Bauer Decl. ¶ 25.) Trent Dilfer ("Dilfer"), quarterback with the Seattle Seahawks and a longtime friend of Carr's, arrived later. (Bauer Decl. ¶ 26; Dilfer Decl. ¶ 2.) Dilfer and Carr had worked out together the previous summer. (Carr Dep. 39:23-24.) Dilfer criticized Coslet's workout. (Bauer Decl. ¶ 26.) After the workout, Carr hugged Bauer goodbye, and told Bauer that he would see him on Monday for a media training session in Los Angeles. (Bauer Decl. ¶ 26.) Carr and Dilfer remained on the field after Bauer and Coslet left. (Bauer Decl. ¶ 26.)

Up until this point, Bauer had never sensed nor been informed that Carr was unhappy with his decision to enter into a contract with Bauer. (Bauer Decl. ¶ 27.) Bauer constantly reminded Carr that it was a two-way relationship in terms of communication and that he fully expected that Carr would tell him if he had a problem or did not want to do something that Bauer had set up. (Bauer Decl. ¶ 27.) Bauer submits declarations from various people who attest that Carr seemed happy during the period he was signed with Bauer, and did not express any regrets. (See e.g., Ellard Decl. ¶ 3; Coslet Decl. ¶¶ 4-7; Chandler Decl. ¶¶ 4-5; Ramsdell Decl. ¶¶ 4-5; Armey Decl. ¶¶ 3-4; Martz Decl. ¶¶ 6-7.)

Carr attests that he decided to fire Bauer on January 12. (Carr Decl. ¶ 4.) He left him a message that day. (Carr Decl. ¶ 4.) Later, he sent him a letter, first by regular mail and then by registered mail, to officially terminate the relationship. (Carr Decl. ¶ 4.)

Carr testified at deposition that he fired Bauer because "I didn't feel comfortable that it was my decision, I didn't feel comfortable that I had gone through a process that would give me the right agent for myself and my family." (Carr Dep. 42:7-13.) He also testified that "I didn't feel that I had gone through and done enough research myself or learned enough about the agent process or learned enough about just everything that goes into it." (Carr Dep. 50:13-16.) Carr was also concerned that "I don't know that you have to hit it off with an agent, I don't know that you have to be best friends but we weren't — and that was something that weighed on me, I guess." (Carr Dep. 50:21-51:1.) Carr had "just a feeling in my stomach, spending time with Frank, having him call all hours of the day. I'm a guy that likes to separate and — you know, family and it kind of seemed like it was all running together and that's what I didn't want." (Carr Dep. 64:14-18.) Carr also testified that:

I didn't think it was the best fit for me. I think there were other agents out there that could do a lot more, that Frank was in over his head. A lot of the draft boards had me in their top five picks and maybe the first pick, and I know that Frank hadn't had anyone that high before and I didn't think he could deal with it. And just in dealings with Frank during the couple of days I was with him, it didn't seem like he could handle things that were going on.
(Carr Dep. 105:2-11.)

On Sunday, January 13, 2002, at around 10:30 a.m., Bauer received a telephone call from Carr, in which Carr told him that he wasn't going to go to the media training in Los Angeles and that he "had learned things about me that were of public knowledge." (Bauer Decl. ¶ 28.) Carr said he was looking for other representation and would make a decision before January 18 before he left for the Senior Bowl. (Bauer Decl. ¶ 28.) Carr hung up, and Bauer called back. (Bauer Decl. ¶ 28.) Carr told Bauer that his father didn't research enough about Bauer and that Carr was now taking things into his own hands. (Bauer Decl. ¶ 28.) Carr hung up on Bauer again. (Bauer Decl. ¶ 28.)

Bauer called Carr's parents and spoke with Sheryl Carr. (Bauer Decl. ¶ 29.) Bauer attests that Sheryl Carr told him that Carr had received in the mail the previous Friday some newspaper articles about Bauer's ex-partner's indictment for murder. (Bauer Decl. ¶ 29.) Sheryl Carr attests that when Carr called her to tell her he had terminated Bauer, she formed the impression that Carr had received some specific correspondence concerning Bauer or his past dealings or relationships. (Sheryl Carr Decl. ¶¶ 3-4.) She attests that "I later learned from David that this impression was not correct, and that David had not received any communication, letter or document that mentioned anything about Mr. Bauer or his past dealings or relationships." (Sheryl Carr Decl. ¶ 4.) At deposition, she testified that Carr never told her that he had received anonymous information that was negative about Bauer or that he had received anything in the mail that was negative about Bauer. (Sheryl Carr Dep. 30:23-21 31:5.) "I just assumed it was anonymous because he wouldn't tell me what it was about." (Sheryl Carr Dep. 30:14-15.)

At deposition, Carr acknowledged telling his mother that he had received some negative things about Bauer in the mail, but testified that, in fact, he had never received anything negative about Bauer. (Carr Dep. 93:1-94:15.) In his declaration, Carr denies telling his mother that he received an anonymous letter about ...


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