By Jim Trotter
May 12, 2011

MINNEAPOLIS -- Now we wait.


Ten weeks after ruling that NFL owners violated terms of the stipulation and settlement agreement by creating a $4 billion lockout fund for themselves, Judge David Doty says he needs more time to decide what to do with the money.

Doty listened to arguments from both sides Thursday morning during a nearly two-hour hearing in his downtown courtroom, then said he would render an opinion in "due season." What that means is anyone's guess, but this much is clear: The players walked away cautiously optimistic their request to have the money put in escrow -- and off limits to the owners -- would be granted.

Their belief was based in part on NFL lead attorney Gregg Levy's statement, via commissioner Roger Goodell, that the league wasn't planning to use the funds this year. "The record reflects in Mr. Goodell's direct testimony ... that the NFL did not plan to distribute any of these monies to the clubs, with the exception of a small amount during the first year of any lockout," he said.

That suggestion, which came minutes before the session concluded, prompted Jeffrey Kessler, co-counsel for the players with Tom Heiden, to blurt out: "I accept Mr. Levy at his word and, in that case, there's certainly no harm to granting the injunction to make sure it's not distributed."

It's unclear how Doty will take the remark, which begs the question: If the owners are not going to use the funds this year, why not set it aside?

Levy clarified his remarks outside the 14th-floor courtroom, where he said the league isn't "comfortable" with an escrow account because the players might have access to a portion of the funds. "And we don't believe they are entitled to [them]," he said.

The players believe otherwise and are seeking at least $707 million in compensatory damages and up to three times that amount in exemplary/punitive damages. The $707 million is based on a percentage of the television money that owners left on the table in 2009 and 2010 to create a lockout fund in 2011. Those deals totaled just over $4 billion and included $457 million in non-refundable payments from several media partners, including $400 million from DirecTV.

The players derived their figure by calculating what it would cost to acquire a $4 billion loan from the banks, taking out the 57.5 percent that would have been their share under the expired collective bargaining agreement, then converting that figure into present day dollars.

"We're asking the court to provide damages for the illegal conduct that Judge Doty found the [NFL] has committed against the players," said Heiden, referring to Doty's March 1 ruling. "[It was] illegal conduct where they violated the laws of this land, illegal conduct where they violated and breached their own written promises [under the situation and settlement agreement that was the backbone to previous collective bargaining agreements.]"

The league contends that Special Master Stephen Burbank got it right in February, when he ruled in favor of the league despite awarding the Players Association $6.9 million for two SSA violations. The players appealed the ruling to Doty, who ruled in their favor but declined to make a ruling on damages until after conducting a hearing with both parties.

Doty's decision to put off the hearing for 10 weeks could have been an attempt to give the sides time to come to terms on a new collective bargaining agreement, which expired roughly two weeks later. It was clear Thursday morning Doty was unhappy the sides had failed to reach an agreement. He opened the session by saying: "I didn't think we'd have this hearing, and I'm a bit disappointed that we are."

His ruling on what to do with the money is critical to both sides. The owners could use it to help cover the debt services on some of their new stadiums; and for the players it would help them survive a protracted work stoppage. Perhaps that's why Doty is being so deliberate."There are some things that I hadn't seen before and heard before, and I want to make sure that I have a chance to think about them," he said.

In the meantime, the players have asked for an expedited ruling on the injunction request to have the money placed in escrow. They believe such a ruling would level the playing field between the sides, and are content to wait for a later ruling on damages.

"What the players have asked, and what we've consistently asked, is just for fundamental fairness," said DeMaurice Smith, executive director of the now decertified NFLPA. "Our men want to play. Our fans want to enjoy the game. We'd like to be engaged with a business partner that complies with the contracts that they sign and the law of this land. Today, the players made their case to the court and we'll wait for the court to decide."

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