Bob Grant v. National Football League Players Association, a Virginia corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOB GRANT; DR. CLINTON JONES;
WALTER ROBERTS, III; MARVIN
COBB; BERNARD PARRISH, on behalf
of themselves and all others similarly
situated,
Plaintiffs - Appellants -
Cross-Appellees,
v.
NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION, a Virginia
corporation; NATIONAL FOOTBALL
LEAGUE PLAYERS INCORPORATED,
a Virginia corporation, DBA NFL Players,
Defendants - Appellees -
Cross-Appellants.
Nos. 12-56154, 12-56240
D.C. No. 2:11-CV-03118-RGK-
FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted March 4, 2014
UCLA, Los Angeles, California
FILED
MAR 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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RONALD BROWN; CHARLES
DETWILER; DWIGHT HICKS, on behalf
of themselves and all others similarly
situated,
Plaintiffs - Appellants -
Cross-Appellees,
v.
NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION, a Virginia
corporation; NATIONAL FOOTBALL
LEAGUE PLAYERS INCORPORATED,
a Virginia corporation, NFL Players,
Defendants - Appellees -
Cross-Appellants.
Nos. 12-56843, 12-56912
D.C. No. 5:11-CV-01953-RGK-
FFM
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted March 4, 2014
UCLA, Los Angeles, California
Before: KOZINSKI, Chief Judge, and D.W. NELSON and WARDLAW, Circuit
Judges.
Bob Grant, Dr. Clinton Jones, Walter Roberts III, Marvin Cobb, and Bernard
Parrish (collectively “Grant”) appeal the district court’s entry of summary
judgment in favor of the National Football League Players Association and
National Football League Players Incorporated (collectively “NFLPA”). The
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NFLPA cross-appeals the district court’s denial of its motion to dismiss. We
affirm the grant of summary judgment in the NFLPA’s favor in appeal No. 12-
56154 and dismiss the NFLPA’s cross-appeal, No. 12-56240, as moot. The parties
in a companion case, Brown v. NFLPA, stipulated that an affirmance in Grant
resolves Brown in favor of the NFLPA, so we dismiss the appeal of the district
court’s denial of class certification, No. 12-56843, and the cross-appeal, No. 12-
56912, in that case as moot.
1. Grant first argues that the NFLPA owes retired players a fiduciary duty
arising from statements made by NFLPA officials. Grant conceded at oral
argument that this theory was not presented to the district court, and we conclude
that Grant waived this argument because it was not “raised sufficiently for the trial
court to rule on it.” In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989).
2. Grant next argues that the district court erred by finding a lack of
evidence supporting an agency relationship and granting summary judgment in the
NFLPA’s favor on that basis. Grant argues that membership in the NFLPA created
an agency relationship between retired players and the NFLPA. “Agency is the
relationship which results from the [1] manifestation of consent by one person to
another that the other shall act on his behalf and [2] subject to his control, and [3]
consent by the other so to act.” Edwards v. Freeman, 212 P.2d 883, 884 (Cal.
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1949) (quoting Restatement (First) of Agency § 1 (1933)). The existence of an
agency relationship is a question of fact, and may only be resolved on summary
judgment when “the essential facts are not in conflict and the evidence is
susceptible to a single inference.” Van’t Rood v. County of Santa Clara, 113 Cal.
App. 4th 549, 562 (2003) (quoting Emery v. Visa Internat. Serv. Ass’n, 95 Cal.
App. 4th 952, 960 (2002)).
Grant argues that membership in the NFLPA was a sufficient manifestation
of consent to create an agency relationship between retired players and the
NFLPA. Grant, Parrish, and Roberts conceded at oral argument that they were not
NFLPA members during the period covered by this lawsuit because they neither
paid dues nor received formal dues waivers, and we affirm the district court’s grant
of judgment in favor of the NFLPA on their claims.
Moreover, none of the appellants, including Cobb and Jones, produced
evidence showing that they had a right to control the NFLPA’s alleged activities on
their behalf, and we affirm on this ground as well. “A person does not become the
agent of another simply by offering help,” and there is no evidence in the record
that the NFLPA did anything more. Violette v. Shoup, 16 Cal. App. 4th 611, 620
(1993).
The NFLPA is awarded its costs.
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Appeal No. 12-56154 is AFFIRMED, and appeals Nos. 12-56240, 12-
56843, 12-56912 are DISMISSED as moot.
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