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Volume 24 No. 159

Leagues and Governing Bodies

NFL Commissioner Roger Goodell yesterday said that the league is "insisting on human growth hormone testing as part of the new collective bargaining agreement with the players," according to Jamison Hensley of the Baltimore SUN. Goodell, speaking to a group of Baltimore-area football players, said, "The integrity of the NFL is critical. We have to make sure that we're doing everything possible to have the best drug program in sports. Making changes to our program is critical. We have done that over the years and we have to do more, including the inclusion of HGH testing." Goodell did not "describe the players' reaction to HGH testing last month" during CBA talks. However, he said, "I believe they know the importance of doing it." He added, "We would be naïve to think that people aren't going to cheat the system. But we have to have the best drug testing program to be able to offset it" (, 4/4). In Chicago, Rick Telander writes HGH testing is "something the players might not be so hot to agree to." While the substance is "already banned by the league, it is not tested for." Such testing "might require blood-taking, and that's not something the NFL Players Association, decertified or not, has been thrilled about in the past" (CHICAGO SUN-TIMES, 4/5).

RETIRED PLAYER CASE: The NFL yesterday told a Minnesota federal court that for the same reasons it should reject an antitrust lawsuit brought by nine active NFL players, it should reject one brought by four retired ones. In addition, the NFL said the retired players, led by Carl Eller, also lack standing to bring the antitrust lawsuit. The 24-page legal brief focused extensively on the same arguments the league made against the Tom Brady lawsuit, contending that federal law disallows courts from getting involved in labor disputes. The NFL and class counsel for the Brady class will square off in court tomorrow over whether the lockout should be lifted. The league will not stand in the way of the Eller and Brady classes merging, though the active players have not said if they want the cases to be joined. The NFL reply to Eller did add another piece of evidence to its arguments, noting in the last edition of the NFLPA publication The Huddle the group wrote, "The NFLPA members gave the NFLPA permission to renounce its union status in the event of a lockout." The NFL contends this amounts to a tactic, which labor law disallows as a reason for renouncing union status. Unions cannot sue under antitrust law, so for Brady to succeed the class must not be part of a union. The former union maintains all it has to do is announce it is no longer a union and that is enough. The Eller class grew from four to five, adding Univ. of Wisconsin-Stout WR Antawan Walker. The Eller class seeks to represent all retired and incoming players, the groups largely not covered by Brady (though the named plaintiffs include former Texas A&M LB Von Miller) (Daniel Kaplan, SportsBusiness Journal).

REACHING OUT TO RETIRED PLAYERS: USA TODAY's Jarrett Bell reports about two weeks after Goodell "wrote to active players and outlined the league's position in the labor dispute," Panthers Owner Jerry Richardson and Packers President & CEO Mark Murphy, members of the NFL Management Council and former NFLers, "have reached out to retired players with a similar letter detailing components of its March 11 offer that could have affected retirees." Richardson and Murphy "assured about 7,000 vested veterans due to receive the letter that NFL owners would continue to fund pensions and benefits for retired players during the lockout," disputing NFLPA Exec Dir DeMaurice Smith's statement that owners "don't contribute to former player pensions." They wrote, "We want you to be fully informed and to know the facts" (USA TODAY, 4/5).

The hearing before U.S. District Judge Susan Nelson tomorrow in St. Paul "will begin to determine how millions of NFL fans ... spend this summer and fall," according to Mark Maske of the WASHINGTON POST. When Nelson "takes up NFL players' request to lift the lockout imposed by NFL owners March 12, she will begin to set a course for America's most popular sport and the people whose lives are shaped by it." She "could soon decide whether the NFL goes back to business while owners and players battle in court; whether to wait for the results of a possibly time-consuming National Labor Relations Board process; whether the players' decision to dissolve their labor union is valid and whether the owners are violating the players' rights." Or "perhaps she will attempt to help the two sides reach a settlement" (WASHINGTON POST, 4/5). NFLPA outside counsel Jeffrey Kessler said, "What we hope the ruling will be is an injunction that will stop the lockout. What that means is the NFL will have to tell clubs they're free to negotiate with players, pay players who are under contract, that players are free to come in for offseason workouts." On Long Island, Bob Glauber noted Nelson's decision "isn't likely to come Wednesday, although there is a possibility that she could 'rule from the bench' and grant an immediate injunction." Most cases, however, "are decided in a week or two." Another potential outcome is that Nelson "grants the injunction but issues a stay, in which case the lockout would continue pending an appeal in the Eighth Circuit Court of Appeals" (NEWSDAY, 4/3).

Boies will play important part on NFL's
legal team if case ends up in appellate court
GAZING INTO THE CRYSTAL BALL:'s Peter King wrote of tomorrow's hearing, "I'll just assume the judge will make a ruling here. ... I'd say it's 3-2 she'll rule for the players, telling owners they have to open their doors and conduct business as usual. At that point, the NFL would appeal." NFL outside counsel David Boies, "hired by the NFL for just such cases," would then go in and "try to convince three judges that the league is within its rights." King wrote, "The odds there? Maybe 6-5, owners. If that happens, then the players will continue to be locked out." For the "new league year to begin, and for free agency and trades to be allowed, the players would have to win in front of the appeals court." It is "still highly likely that a new league year could begin before" the April 28 NFL Draft. After that the "next interesting date on the legal calendar is May 12," when U.S. District Judge David Doty "will hear arguments on potential damages in the television case" (, 4/3).

LEADING THE CHARGE: In N.Y., Judy Battista noted Boies tomorrow "will present the NFL's argument against the players' request for an injunction to stop the league's lockout." Former Solicitor General Theodore Olson said of Boies, "This seems right up his alley. It's a dynamic, challenging issue that affects a great deal of America. And it's groundbreaking. He loves that sort of thing. It tests his skill, imagination and creativity. I just doubt there's anything that excites him more professionally than that kind of intellectual challenge." Boies' work in sports "has been overshadowed by his other closely followed cases, and much of his public profile revolves around his reputation as a liberal-leaning Democrat." But he "has long advised the Yankees," and Yankees President Randy Levine said, "He's brilliant. He has great common sense. He's an all-star" (N.Y. TIMES, 4/4).

NFL DONATING TO CHARITIES OF BREES, MANNING: The NFL shortly will announce $1M of grants to player charities, including those of Saints QB Drew Brees and Colts QB Peyton Manning, who are suing the league for antitrust violations. Tomorrow’s hearing about why the lockout should be lifted and that the league is guilty of antitrust violations apparently did not dissuade the league from awarding up to $50,000 each to Manning’s PeyBack Foundation, and to The Brees Dream Foundation. NFL Commissioner Roger Goodell said, “We are proud to support current and former player foundations and applaud all players’ efforts to make their communities healthy, happy, and safe.” NFL Charities in total is awarding 87 grants of up to $50,000 each to current and former players’ foundations. NFL Charities has awarded more than $17M to player foundations over the course of two decades (Daniel Kaplan, SportsBusiness Journal).

An NCAA spokesperson said that he “was not aware of any discussion to extend the deadline for players declaring for the NBA Draft to alleviate the uncertainty associated with the NBA labor situation,” according to Viera & Thamel of the N.Y. TIMES. Underclassmen who submit their names for the NBA Draft by the April 24 deadline have until May 8 “to withdraw their names and retain their eligibility, unless they sign with an agent.” As underclassmen “weigh the consequences of leaving early, some college coaches, NBA front-office members and agents do not seem exactly sure how, and to what extent,” the upcoming NBA CBA negotiations will affect the draft class. Univ. of Georgia coach Mark Fox: “I had one NBA guy tell me that anyone that is a bubble guy, the lockout should pop everyone’s bubble. Those guys are a risk anyway. Put this factor into the mix, and it’s just too volatile.” UConn G Kemba Walker, a junior, said that the “specter of a lockout would not play a role in his decision.” Walker: “I haven’t given it any thought at this point. But I’m very aware of the NBA lockout. It wouldn’t affect my chances of going. It just depends on what my stock is like and stuff like that.” But agent Mark Bartelstein said, “It will have an effect, and it should have one.” Meanwhile, Butler coach Brad Stevens “wondered if the unclear situation might cause a reverse pendulum effect.” If more players “do not enter the draft because of the uncertainty, it could present an opportunity for others to leave early and benefit from a watered-down draft pool” (N.Y. TIMES, 4/5).

BE TRUE TO YOUR SCHOOL: ESPN's Doug Gottlieb said more players will remain in college next season because of labor uncertainty in the NBA. Gottlieb: "College players now, even from the time they're in high school, understand all the ramifications of their actions. They're much better educated on the NBA and they know what we've been saying on ESPN is what agents are telling college coaches, what NBA personnel are telling college coaches and frankly, telling their families. There is going to be a lockout" ("SportsCenter," ESPN, 4/5). Univ. of North Carolina men's basketball coach Roy Williams, who is meeting today with underclassmen Harrison Barnes, John Henson and Tyler Zeller to discuss their plans for next year, said, "There's no question the scenario is a little different this year because of the mood of the NBA and the collective bargaining agreement" ("The Dan Patrick Show," 4/5).

LOCKOUT LOOKING INEVITABLE: ESPN’s Ric Bucher reported there is “no question that we are going to have an NBA lockout.” Sources for both the league and the NBPA said that in order to “have a deal in place by July 1, they essentially have to have that deal negotiated by the end of the regular season.” Bucher: “That quite clearly is only about a week away and that's not going to happen. So a lockout will begin and nobody is counting on a summer league." If the two sides "can get a deal in place by July 1, then we have a chance of starting training camp on time" but "nobody is really anticipating that." He added, "The expectation is that we are going to miss games because the owners are asking for such draconian changes that they want to put the pressure on the players. The players don't get their first check until November 15, so they don't feel the pinch until you start missing regular-season games. With what the owners are asking, they are going to have to feel not just a pinch, they're going to have to feel a dagger for them to accept what the owners want them to accept" ("SportsCenter," ESPN, 4/5). Galatioto Sports Partners President Sal Galatioto said, "I've never seen the owners more united, and I believe the owners will do what it takes to get a reasonable economic deal" ("Strategy Session," CNBC, 4/4).