The effort to recover legal fees, reportedly in excess of $2 million, from Cowboys owner Jerry Jones does not arise under the rule that allows Commissioner Roger Goodell to impose punishment for conduct detrimental to the game. Instead, the authority comes from Resolution FC-6, adopted in 1997.
Resolution FC-6 specifically relates to any effort by “any member club or any entity controlled by any direct or indirect owner of an interest in a member club” that becomes involved in litigation against the NFL or any of the member clubs. The resolution, a copy of which PFT has obtained, applies not only when a member club initiates litigation against the league or other member clubs but also when a member club “joins, has a direct, football-related financial interest in, or offers substantial assistance in any lawsuit or other legal, regulatory, or administrative proceeding” against the league or other member clubs.
Resolution FC-6 gives the Commissioner or his designee “final and binding” authority” to “determine the amount of said legal fees, litigation expenses, and costs,” after the club to be charged those amounts has “notice and an opportunity . . . to be heard.”
So what do these provisions mean, as it relates to the effort to collect more than $2 million from Jones?
First, the claim won’t be against Jones directly, but against the Cowboys. It’s a distinction without a difference, but the reports indicating that the effort will be targeted against Jones personally makes it feel more like revenge or retribution than it would be if the effort were reported more accurately as a claim only against the Cowboys.
Second, as it relates to the Jones’ effort to block the Commissioner’s contract extension via threat of litigation, no lawsuit was ever filed. Resolution FC-6 applies only when a member club “initiates, has a direct football-related financial interest in, or offers substantial assistance to any lawsuit or other legal, regulatory, or administrative proceeding.” The flurry of letters and communications that occur under the threat of a potential lawsuit (a common practice in civil litigation) do not constitute actual litigation. Thus, the Cowboys/Jones will be able to argue that none of the fees incurred in connection with his retention of lawyer David Boies and the back-and-forth arising from the mere possibility of litigation fall within the scope of Resolution FC-6.
Third, the Cowboys/Jones specifically refrained from becoming involved in the Ezekiel Elliott litigation. Team executive Stephen Jones characterized the team as “observers” in the litigation initially filed by Elliott in Texas, which was followed by the league filing a lawsuit of its own in New York.
Fourth, the question will become whether the Cowboys/Jones crossed the line into offering “substantial assistance” to Elliott via the declaration filed by Cowboys general counsel Jason Cohen (who testified that the Cowboys would suffer irreparable harm if Elliott is suspended and who corroborated the alleged effort to conceal the opinions of league investigator Kia Roberts from Goodell) or other specific help that the Cowboys provided.
Fifth, the Cowboys/Jones will have an opportunity, if they so desire, to pore over all of the various invoices and other itemizations of charges to argue that the lawyers charged too much for their services or otherwise engaged in unnecessary or irrelevant projects. If the details of any invoices showing excessive legal charges make their way into the hands of the media, that could prove to be embarrassing to the league.
Sixth, Resolution FC-6 specifically preserves the ability of the Commissioner to impose punishment against Jones for conduct detrimental to the league. Thus, the issue of legal fees may be not the end of this effort to recover money from Jones for his behavior in 2017, but the beginning.
Seventh, while Resolution FC-6 gives the Commissioner the sole power to determine the amount of fees to be paid, it’s silent as to the process for resolving the question of whether a member club has actually triggered the reimbursement obligation. Ultimately, then, the Cowboys/Jones eventually could file litigation aimed at proving that the Cowboys/Jones never filed litigation or substantially assisted litigation filed by Elliott.