The three cities hoping to hold onto their NFL teams present to a trio of league committees in New York this week, striving to show why their clubs should not relocate to Los Angeles next season. At the crux of their argument is that the league’s own relocation guidelines seemingly give great deference to keeping teams where they are if local officials work to keep them.
However, legal experts, and a key league executive, contend essentially that the NFL’s owners are free to ignore key elements of the very guidelines to which St. Louis, San Diego and Oakland representatives are attaching such significance.
“These relocation guidelines, they’re not a checklist that gives you an answer at the end,” said NFL Executive Vice President Eric Grubman, speaking to a town hall meeting in St. Louis on Oct. 27 in response to a Rams season-ticket holder’s impassioned recitation of the guidelines. “We are not the voters. The 32 owners are the voters. These are subjective things.”
And according to lawyers who have a history with the NFL and relocation, Grubman is right: The guidelines do not control how owners must vote.
“It doesn’t matter one iota,” said Williams & Connolly attorney Mark Levinstein, who represented the Rams in 1995 when the club relocated from Los Angeles to St. Louis. “It is written for litigation. The goal is to be able to say to jurors, ‘We had a good reason,’ when the reality is, ‘We had 28 guys voting for God knows what reasons. And we don’t want all the discussion and back-room dealing and all the rest the focus of the case.’”
The league’s relocation guidelines were adopted in 1984 (and later updated, in the late-1990s) after the NFL blocked the Raiders from moving from Oakland to Los Angeles. The team sued and won, with the appellate court noting the league did not have relocation rules. The guidelines lay out, on the surface, stringent team requirements. For example, a team must work locally in what’s termed “good faith” and cannot relocate to another market simply for more money.
“They basically throw in the kitchen sink so they can say they have guidelines,” Levinstein said.
But there are caveats through the six pages of guidelines, which were developed by NFL outside legal counsel Covington & Burling. Among the phrases are “factors that may be considered in evaluating the proposed transfer;” “the membership is entitled to consider a wide range of appropriate factors;” and “Guidelines and factors such as those identified below are useful ways to organize data and to inform that business judgment.”
Irwin Raij, co-head of the sports practice at Foley & Lardner, said the guidelines are flexible. The league, he said, needs to do what is in the best interests of the entire NFL. “You want to have a set of guidelines and rules,” Raij said, “but also the flexibility to look at it, in theory.”
But leaders in St. Louis have put great emphasis on the bylaws in their pursuit of building a new stadium for the Rams, even though team owner Stan Kroenke has been disengaged from the process and wants to move to California. When Dallas Cowboys owner Jerry Jones in January said Kroenke should move if he wishes, the co-head of the St. Louis task force, Dave Peacock, reacted with dismay.
“We are disappointed anyone associated with the NFL would dismiss the bylaws in any way,” Peacock said at that time.
Peacock is not commenting ahead of Wednesday’s presentation to a joint meeting of the NFL’s stadium, finance and Los Angeles opportunities committees, so it could not be determined how he views opinions that the bylaw is not as ironclad as he suggests.
Williams & Connolly’s Levinstein, however, contended the guidelines have nothing to do with a city like St. Louis but are designed to prevent an owner who is blocked from relocating from suing. The city that might lose a team, he said, has no standing to sue despite an owner who may not meet the spirit of the guidelines.
Not all agree. Alan Milstein, a partner with Sherman, Silverstein, Kohl, Rose & Podolsky who has litigated against the NFL in the past, wrote in an email that a city could have the standing to sue under estoppel doctrine. That legal theory posits a judge can stop a party, like Kroenke, from acting in a way he is legally allowed to in order to prevent an inequitable result. St. Louis could argue it relied on the bylaw.
After this week’s meeting, which will include 17 owners, the next owners gathering is a full ownership meeting in Dallas on Dec. 2.
Each of the three affected cities is working to keep its franchise, with St. Louis considered the furthest along. The city of San Diego, whose mayor is expected to present to the owners this week, likely needs a year delay to get back into the mix. Oakland is seen as the furthest behind, though it recently bolstered its effort with the hiring of well-regarded stadium finance consultant Tipping Point Sports.
