By Bob Glaves | CBF Executive Director
Football is back and off to a rousing start (we even had the butt punt last weekend!), and one of the storylines playing out at the start of the season has some resonance on the access to justice side too.
Two of the game’s biggest stars, including the best player on our Chicago Bears, turned down huge contract extensions and elected to play out their contracts this season to “bet on themselves” to maximize their future earnings. While we often see contract disputes like this play out publicly in sports, the unusual commonality here is that they both are acting as their own agents in a game where virtually all players hire agents to represent them.
Jim Harbaugh’s football analogy a few years ago is still one of the better ways to talk about access to justice that I’ve heard, but there are some common threads with these current contract standoffs and the high-stakes issues everyday people face in the courts that we can learn from too.
The Jim Harbaugh Analogy Revisited
I wrote about Coach Harbaugh’s football hot take on access to justice a few years ago, and I still think his framing of it is one of the best ways to talk about the fundamental unfairness that can result when one side is represented in court and the other is not.
His analogy to illustrate what it means when someone must fend for themselves in a contested court case was that it is like a game where one team has to play without helmets and pads.
You don’t have to stretch your imagination to recognize that team would get routed and end up with some serious injuries. My “Part Deux” analogy is a lot more nuanced than Coach Harbaugh’s point when it comes to access to justice but still tells us a lot.
The Multimillion Dollar Games of Chicken
The origin of Part Deux in my football analogy is two great players in the final year of their rookie contracts who turned down multimillion-dollar and multiyear contract extension offers to play out the season under their current contracts to try to prove they are worth much more.
The first player in this game of chicken is Roquan Smith, the latest in a long line of game-changing linebackers to play for the Bears. The second player is Lamar Jackson, already one of the best quarterbacks in the league at age 25 and playing a central role in making the Baltimore Ravens a Super Bowl contender.
Both opted to represent themselves in their contract negotiations and publicly took deep offense to their teams not seeing it their way towards finalizing a deal. We do not know the details of their negotiations or how far apart they were in the end, but we do know it involves a difference of tens of millions of dollars in guaranteed money if not more.
Unable to reach a deal to their liking, they both declared they would bet on themselves and let their play make the case for the contract they believe they deserve. And they both are off to amazing starts this season, playing critical roles in wins for their teams last week and showing they are two of the top players in the whole league.
To be clear, I am not criticizing them for representing themselves and taking the risk to prove on the field they are right to hold out for what they think is fair compensation. And heck, as a Bears fan first and fan of great players generally, I’m rooting hard for them both to succeed!
But the fact is that they made a choice to represent themselves in their high-stakes contract negotiations when hiring an agent to do so is the standard practice of virtually all other players in the NFL and other major sports.
Why is it the norm for players to have agents represent them in negotiations?
While for most of us, football is a game that breeds passionate fan bases and some great entertainment, it is also a big business. And for all the talents the players bring to the field to make that big business possible, they too often are treated as disposable pieces and rarely negotiate from a balanced power position. This can add a high degree of emotion into the equation for the players, particularly when there is not a trained intermediary bringing an objective lens to the situation and advocating for the player.
Being a great football player does not make you a great negotiator or expert in the financial ins and outs of the industry, and these are high stakes negotiations for the players. Football is a dangerous game, and unless you are a unicorn like Tom Brady, the average playing career is between 3 ½ and 5 years. So, the stakes in maximizing earning capacity for players in the early parts of their career are high indeed.
For all these reasons, most players in football and other sports find it to be a solid investment to have a good agent representing them in negotiations. Even though good agents do not come cheap, they provide a valuable service for the players and generally can negotiate much better deals for their clients.
What Does This Have to do with Access to Justice?
Fair question. It obviously is completely different to talk about negotiating on your own over money that most can only dream of versus a vulnerable person facing legal proceedings involving their home, their family, or their livelihood without a lawyer. There are more common threads than might first be apparent though:
- The stakes are high
- Emotions are likely to run high too, clouding judgment for the people involved about what is the best decision for the long term
- There are uneven power dynamics
- Often complex issues are involved
- The other side is represented by a trained advocate
Those are just some of the common threads between a football contract negotiation and access to justice for everyday people. But there also are some key differences that make representation even more critical for vulnerable people facing high-stakes legal issues when the other side is represented.
While both involve unequal power dynamics, there is a big difference in leverage for the people involved. Players can bet on their rare football talent to make their case for them. Someone appearing in court on their own where significant life issues are at stake, on the other hand, is highly unlikely to have innate talent and skill to fall back on to advocate for themselves.
And while the stakes are high in both instances, cases where someone’s family, home, safety, or independence are at stake are in another league altogether of the potential impact on someone’s life.
I am not saying that someone cannot reach a good outcome on their own in these situations or are guaranteed to reach a good outcome by having representation, but the odds are stacked against someone going it alone in court.
Lawyers Matter When the Stakes are High
These dynamics are the source of the old adage that “a lawyer who represents themselves has a fool for a client” Unfortunately, in our civil legal system today, the majority of people are forced into that situation not by choice, but by lack of access to legal representation.
And the consequences are real and not good. A comprehensive study of the impact of representation for a range of weighty legal issues shows that access to legal assistance makes a big difference and not just in improved case outcomes. Having a lawyer helped people reach better and more lasting settlements, leave with significantly increased perceptions of fairness, and made the court process more efficient as well.
Good lawyers bring an objective lens to what is often an emotionally charged situation, counsel their clients about their realistic options, and advocate on their behalf for a fair and efficient resolution to their legal problems. The impact is not necessarily or even usually in “wins and losses” outcomes, but in the quality of resolution, as we all know that most cases settle before going to trial. Giving people a sense of justice and the ability to move on productively with their lives is a critical part of the equation, and that is much harder for people to achieve on their own.
Being Real About What Access to Justice Means
There are those who suggest that if we give people tools to advocate for themselves in court, we have given them access to justice. For simpler and lower-stakes issues, that indeed may be the case. When the stakes are high and the power dynamics are uneven, as is far too often the case for poor and disadvantaged people in the justice system, access to legal representation is an integral part of access to justice. The level of representation that is necessary to enable people to get a fair outcome will vary, but having access to a lawyer is critical.
Just because there may be a small percentage of players or pro se litigants who are able and willing to pull it off on their own like Roquan and Lamar does not make it a good idea for all other players. If they want to represent themselves in these cases, that should be their option, but it can never be our standard for access to justice to say that is acceptable for everyone else.