Ladj 2022: The Year CA's TAA Will Be Enforced As Written?

Feb.
8, 2022
2022: The year California’s TAA

will be enforced as written?
At any time, empowered by the Legislature’s giving the administrative
agency the power to “adopt, amend, and repeal such rules and
regulations as are reasonably necessary for the purpose of enforcing
and administering” the Talent Agencies Act to remain consistent with
how the act has been codified, the enforcement can be corrected.
In 1967, the California Court of Appeal controversies. Last year, California-

found that Jefferson Airplane's personal licensed sports agency Independent
manager had worked to get the band gigs Sports & Entertainment simply walked
without first applying for and receiving a away from a seven-figure breach-of-
talent agency license, as required by the contract suit after NBA star Jimmy
state's Talent Agencies Act (Labor Code Butler made a claim that that the
Section 1700 et seq.). As a penalty for agency's procuring of an endorsement
the unlicensed procurement, the court deal without also having a talent agency
voided the manager's contractual license was a TAA violation.
rights. See Buchwald v. Superior Court,
254 Cal. App. 2d 347. These losses have compromised
businesses, caused personal
Ever since, with courts relying bankruptcies, broken marriages, and in a
on Buchwald to void all or some of an few cases, shortened lives. They have
unlicensed procurer's contractual rights - also been the continuation of a judicial
- along with some abandoning owed error of immeasurable proportion.
commissions versus filing suit, and
others settling for cents on the dollar In her 2008 opinion in Marathon
instead of going through the full judicial Entertainment v. Rosa Blasi, 42 Cal. 4th
process -- personal managers have 974, California Supreme Court Justice
forfeited an estimated half-billion dollars Kathryn Werdegar twice noted how the
of otherwise-owed compensation. TAA, "provides no remedy for its
violation." "The Act is silent --
Professionals in related fields have been completely silent -- on the subject of the
similarly entwined in TAA proper remedy for illegal procurement."
When the California Legislature does not The California Supreme Court has made
codify a remedy, neither an clear that while the Legislature has the
administrative agency (the labor power to delegate the administration,
commissioner in TAA cases) nor a judge interpretation and be the original
has the right to mete an uncodified one. adjudicator of relevant controversies, it
does not delegate the duty of creating a
Violations of law are "made up of two remedy: "An administrative agency
parts, forbidden conduct and a prescribed cannot by its own regulations create a
penalty. The former without the latter is remedy which the Legislature has
no [violation]." U.S. v. Evans, 333 U.S. withheld. 'Administrative regulations
483, 486 (1948). Assigning a penalty that alter or amend the statute or enlarge
without statutory guideposts "is a task or impair its scope are void and courts
outside the bounds of judicial not only may, but it is their obligation to
interpretation," reserved only for and by strike down such regulations.'" Dyna-
legislative action. Id. at 495. Med Inc. v. Fair Empl. & Housing
Comm., 43 Cal. 3d 1385 (1987). "It is
"Engrained in our concept of due process fundamental an administrative agency
is the requirement of notice. Notice is may not usurp the legislative
sometimes essential so that the citizen function." Id. quoting Agricultural Lab.
has the chance to defend charges. Notice Relations Bd. v. Sup. Court, 16 Cal. 3d
is required before property interests are 392, 419 (1976).
disturbed, before assessments are made,
before penalties are assessed." Lambert The Dyna-Med court limited its review
v. California, 355 U.S. 225, 228 (1957). and thus prohibition to creating a remedy
for punitive damages. In Peralta v. Fair
"Where a statute fails to provide a Empl. & Housing Comm., 52 Cal. 3d 40,
penalty it has been uniformly held that it 60 (1990), the Supreme Court similarly
is beyond the power of the court to held that without statutory authority,
prescribe a penalty." New Jersey v. Fair administrative agencies are barred from
Lawn Service Center, Inc., 120 A.2d creating compensatory remedies.
233, 236 (N.J. 1956).
In 2013, the Daily Journal published my
"[I]n order for a consequence to be column, "A generation of incorrect
implied from a statute there must be Talent Agencies Act rulings," explaining
greater justification for its inclusion than how Buchwald got it wrong -- by
consistency or compatibility with the act misinterpreting all four of the California
from which it is implied. A necessary Supreme Court holdings it cited for its
implication within the meaning of the authority to void a found violator's
law is one that is so strong in its contractual rights: Wood v. Krepps, 168
probability that the contrary thereof Cal. 382, 386 (1914); Smith v. Bach, 183
cannot reasonably be supposed." Grubb Cal. 259, 262 (1920); Loving & Evans v.
& Ellis Co. v. Bello, 19 Cal. App. 4th Blick, 33 Cal. 2d 603, 608-09 (1945);
231 (1993). and Severance v. Knight- Counihan Co.,
29 Cal. 2d 561, 568 (1947). Yet nine 21VECP00262, where the lack of a
years later, personal managers and now penalty provision and the related
producers, licensed attorneys and sports consequences has been raised and
agents are still being compromised by assumptively will be ruled upon. The end
the findings in Buchwald. of this draconian, unfair, unconstitutional
enforcement cannot come soon enough.
This may change soon. At any time,
empowered by the Legislature's giving For those wanting more detail about
the administrative agency the power to these issues, on February 25 Professor
"adopt, amend, and repeal such rules and Kevin J. Greene, the John Schumacher
regulations as are reasonably necessary chair of Southwestern Law School, is
for the purpose of enforcing and producing, and the Biederman Institute
administering" the TAA to remain of Southwestern Law School is
consistent with how the act has been presenting, a forum on the implications
codified, the enforcement can be of the most recent TAA decisions and
corrected. the potential of changes because of
litigation using the above-mentioned
There is also a case in Los Angeles arguments. Information is available on
County Superior Court, Echo Lake the Biederman Institute website.
Management LLC v. Meg Deloach,

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Feb.

2022: The year California’s TAA

In 1967, the California Court of Appeal controversies. Last year, California-

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