Los Angeles Dodgers star Shohei Ohtani and his agent, Nez Balelo of CAA, on Sunday motioned to dismiss a lawsuit brought by Hawaiian real estate developer Kevin Hayes and real estate agent Tomoko Matsumoto. Ohtani and Balelo accuse the plaintiffs of self-dealing, along with exploiting and failing to pay Ohtani for use of his NIL to market a real estate development in the Mauna Kea Resort on Hawaii’s Big Island.
Last month Hayes and Matsumoto sued in a Hawaii circuit court for tortious interference with contractual and business relations and unjust enrichment. The case mainly takes aim at Balelo, who is accused of exploiting Ohtani’s celebrity leverage through deploying “strong-arm tactics.” To that point, Balelo allegedly pressured Kingsbarn Realty Capital, a business partner of Hayes and Matsumoto, to remove the duo from the $240 million project.
The motion to dismiss, authored by Laura D. Smolowe, Randall C. Whattoff and other attorneys from Akin Gump and Cox Fricke, offers a very different account.
The motion acknowledges that in 2023, Ohtani signed an endorsement deal with the joint venture for the real estate project in which Ohtani agreed to lend his NIL to promote a luxury housing development “located on Parcel F of the Mauna Kea Resort on the Island of Hawai‘i.” But Ohtani allegedly didn’t agree to license his NIL to Hayes’ “unrelated” projects, including one owned by Hapuna Estates, yet the player’s “name and photograph” were featured on a side project website to “drum up traffic.”
For starters, the motion argues that Ohtani shouldn’t be a defendant since he isn’t accused of misconduct. As the defense attorneys tell it, the “plaintiffs’ theory appears to be that Ohtani is liable simply because his agent (supposedly) did something wrong.” The problem with that legal framework, the motion asserts, is that under agency law, a principal (Ohtani) can’t be held vicariously liable for the agent’s misdeed in the absence of specific circumstances, such as misconduct is approved by the principal or without the scope of the agent’s actual authority. None of those circumstances allegedly applies.
Attorneys for Ohtani and Balelo suspect that filing a lawsuit “against a world-famous athlete and his agent would shift the focus away from their blatant violation of Ohtani’s NIL rights.” The defense attorneys also portray Balelo as doing his job as an agent and protecting his client, Ohtani, by “expressing justifiable concern” about alleged “misuse” of Ohtani’s NIL.
Balelo is depicted as correctly trying to meet his fiduciary obligations to Ohtani. Balelo objected to unauthorized use of Ohtani’s NIL, which is what an agent is supposed to do. Along those lines, Balelo is described as engaging in “advocacy for his world-famous client, and legitimate, and understandable, efforts to secure him the fairest deal.”
Attorneys for Ohtani and Balelo warn that if the complaint against their clients isn’t dismissed, Ohtani and Balelo “intend to file appropriate counterclaims” against Hayes and Matsumoto. Those counterclaims would include unauthorized misappropriation of Ohtani’s NIL. In that same vein, the attorneys contend that the plaintiffs’ decision to sue “a world-famous athlete and his agent would shift the focus away from their blatant violation of Ohtani’s NIL rights.”
The plaintiffs will have the chance to try to rebut the motion to dismiss in their own filing. The case is before Judge Jordon J. Kimura.
