                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 28 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

BOB GRANT; DR. CLINTON JONES;                    Nos. 12-56154, 12-56240
WALTER ROBERTS, III; MARVIN
COBB; BERNARD PARRISH, on behalf                 D.C. No. 2:11-CV-03118-RGK-
of themselves and all others similarly           FFM
situated,

              Plaintiffs - Appellants -          MEMORANDUM*
              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.


                   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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
RONALD BROWN; CHARLES                           Nos. 12-56843, 12-56912
DETWILER; DWIGHT HICKS, on behalf
of themselves and all others similarly          D.C. No. 5:11-CV-01953-RGK-
situated,                                       FFM

              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.


                   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.


                                           3
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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