SBD/March 14, 2011/Leagues and Governing Bodies

NFL Lockout Watch, Day 3: Players File Lawsuit Against League



Brady is one of 10 players named in lawsuit against the NFL
Nine NFL players, led by Patriots QB Tom Brady but seeking to represent all current and future NFL players, filed a class action lawsuit Friday in U.S. District Court in Minnesota seeking to enjoin the NFL from locking players out, among other things. The lawsuit, filed by the players just hours after the NFLPA decertified and became a trade organization, alleges that the league and NFL clubs violated the Sherman Antitrust Act by planning to lock out non-unionized members, by planning to hold an NFL Draft, and by imposing a salary cap and free agent restrictions. The lawsuit seeks an injunction to prevent the NFL and its clubs "from agreeing to deprive the players of the ability to work as professional football players." It also seeks declarations that the lockout, the draft and the salary cap, among other things, are violations of the Sherman Act. It further seeks an injunction to prevent NFL clubs from "agreeing to withhold contractually owed amounts to players under contract for the 2011 NFL season and beyond." In addition, the lawsuit seeks a declaration that the NFL clubs shall pay contractually owed amounts to players "whether or not the lockout continues." The other named plaintiffs in the lawsuit are Drew Brees, Vincent Jackson, Ben Leber, Logan Mankins, Peyton Manning, Brian Robison, Osi Umenyiora and Mike Vrabel. "The NFL Defendants’ anticompetitive agreements include a so-called 'lockout' aimed at shutting down the entire free agent marketplace for players no longer under contract, as well as a boycott of rookie players seeking an NFL contract for the first time, and even players currently under NFL contracts, who will not be permitted to enjoy the benefits of those contracts," the lawsuit states. "The stated anticompetitive purpose of this group boycott is to coerce plaintiffs and other players to agree to a new anticompetitive system of player restraints which will, among other things, drastically reduce player compensation levels below those that existed in the past and that would exist in a competitive market" (Liz Mullen, SportsBusiness Journal). NFL Draft prospect Von Miller, formerly a LB for Texas A&M, also is "included in the suit because it lists the draft among the anti-trust violations" (DALLAS MORNING NEWS, 3/12).

I'LL BE THE JUDGE OF THAT: Susan Nelson today became the third judge to be assigned the NFLPA’s antitrust lawsuit, though it is possible by the end of today a fourth, and the one coveted by the former union, David Doty, could get the case. Two judges recused themselves because of possible conflicts of interest, and Nelson was assigned this morning. Nelson had until December overseen the case brought by former NFLer Fred Dryer against NFL Films, alleging misuse of his and other former players identities. She stepped aside from that case after a promotion. According to legal experts in Minnesota who follow the federal court system, the decision on whether Doty will be linked to this case will be made between Doty and Nelson. The NFLPA, in seeking an injunction, did list Doty's Reggie White case as "related." That identification was a signal that the union wants Doty on the new case. But that designation typically triggers a discussion between the two judges on the two related matters. In this instance, Doty and Nelson could be expected to discuss who should get the new Brady case. Those who know Doty suspect he would like to stay on the case. But there is another issue: Barbara Berens, who is the lead local counsel for the union, was Doty's clerk during the White case. Her appearance before Doty could be viewed as a red flag by NFL lawyers, who could be expected to seek Doty's removal. A preliminary injunction hearing was scheduled for April 6 before Nelson. The NFL’s response is due March 21 and the NFLPA’s reply March 28. It is unclear if the scheduling of the hearing means that the case will stay with Nelson (Kaplan & Weiner, SportsBusiness Journal). Meanwhile, the AP noted the players will "meet in Marco Island, Fla., beginning Wednesday, an annual convention that has taken place in Maui most years." They will "plot strategy for the next few months, hopeful the request for a preliminary injunction ... will stop the lockout" (AP, 3/13).

A WELL THOUGHT-OUT SUIT: In N.Y., Ralph Vacchiano reported Umenyiora's inclusion in the suit was a "well-kept secret." A source said that even Umenyiora "didn't know for sure he'd be part of the suit until just days before." The source said, "The union picked the guys. And every one of them was picked for a reason." A source familiar with Umenyiora's inclusion in the suit said that he was added as "one of the four plaintiffs with current NFL contracts because of the bonus-heavy structure of his six-year, $41 million deal, which at the time was the largest ever given to a player in his third NFL season" (N.Y. DAILY NEWS, 3/13). In K.C., Sam Mellinger wrote, "Putting well-liked stars like Peyton Manning and Drew Brees on a lawsuit that will officially be called 'Brady vs. the NFL' is a brilliant PR move" (, 3/12).

BEEFING UP THEIR ROSTERS: In Boston, Greg Bedard reports the NFL has "retained legal heavyweights David Boies and Paul Clement to join longtime outside counsel Gregg Levy in defending the league against the antitrust case filed Friday by the NFLPA." Boies is "most well known for representing Al Gore in the disputed 2000 presidential election." The players are "represented locally in Minnesota by the firms of Berens & Miller and Briggs and Morgan." The players also will continue to be represented by Jim Quinn and Jeffrey Kessler, among others (BOSTON GLOBE, 3/13). The N.Y. POST's Hubbuch noted the "willingness to spend huge money on a heavyweight such as Boies indicates just how desperate the NFL is to end its string of antitrust losses (at least five since 1957) unless the owners decide to negotiate an out-of-court settlement that would result in a new CBA." The players "countered with their own impressive legal move" in hiring Berens (N.Y. POST, 3/13).

A LOOK DOWN THE FIELD: In DC, Maske & Shipley cited legal experts as saying that the NFL players' decision to dissolve their union "leaves both labor and management vulnerable to a game-changing ruling on the labor stalemate from an outside arbiter -- either a federal court or the National Labor Relations Board." Barry Univ. law school professor Marc Edelman: "What happens in the next few weeks will determine whether the ball is on the NFL players’ side of the field, or whether they are backed in their own end zone." Maske & Shipley noted if the NLRB "agrees with the owners that the decertification is a sham, conducted simply to gain bargaining advantage, the players could be forced to return to the table with their suit jeopardized and legal strategy in shambles." The owners "already have filed a complaint with the NLRB alleging just that, and several experts said they seem to have a compelling case." But if decertification is "upheld by the NLRB, the players may gain a sudden edge." Maske & Shipley noted "history shows the owners likely will face an uphill battle as the players press forward with their attempt to win a preliminary injunction to lift the owners’ lockout" (WASHINGTON POST, 3/13).

HE'S ON YOUR SIDE? In N.Y., Richard Sandomir notes for NFL players, "federal court in Minneapolis is a legal nirvana." Over "nearly 40 years, cases filed there by players and their union have found favor in legal rulings by United States district court judges." And on Friday, when the NFLPA decertified, "the Minneapolis court once again became the legal theater for football, this time in a particularly tense impasse" (N.Y. TIMES, 3/13). The N.Y. POST's Hubbuch wrote under the header, "NFL Should Fear Tackling Doty In Court." Doty invokes "both fear and disgust from the owners because of his repeated decisions in favor of the players dating to the granting of free agency in 1993 after the union decertified the first time." The owners "obviously can appeal any decisions by Doty's court, but it is little surprise that they have made removing him from hearing any future league-related cases a prime provision of the next labor agreement (N.Y. POST, 3/12).'s Don Banks wrote during CBA negotiations the past few weeks, "it's clear the players didn't have to bend over backward." Banks: "Or even a little. Because they knew with Doty in their corner, they could play hardball with the league -- and have a good chance of winning" (, 3/12).
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