As the NFL proceeds with its effort to recover more than $2 million in legal fees from the Cowboys for: (1) the team’s threats to sue over the contract extension for Commissioner Roger Goodell; and (2) the Ezekiel Elliott suspension and litigation, the league has declined comment as to a key procedural question regarding the provision that allows for the shifting of litigation costs.
Here’s the question: Who will decide whether the Cowboys’ activities fall within the scope of Resolution FC-6, which requires reimbursement for attorneys’ fees under certain circumstances?
The NFL has declined comment on this question.
The resolution gives the Commissioner (or his designee) final and binding power to determine the amount of fees, but it doesn’t mention whether the Commissioner or anyone else has the power to make the threshold decision that a team initiated litigation or provided substantial assistance to litigation initiated by someone else.
As to the Cowboys, owner Jerry Jones merely threatened litigation regarding Commissioner Roger Goodell’s contract extension, but never actually filed suit. Although threats of litigation necessarily result in pre-litigation legal expenses (via the development of a strategy to the writing of letters to the person threatening the lawsuit), the resolution easily could have been written to encompass threatened litigation, but it wasn’t. And it isn’t.
The Cowboys potentially fall within the scope of the resolution as to the litigation relating to the Ezekiel Elliott suspension. Still, someone has to decide whether affidavits submitted by general counsel Jason Cohen or any other conduct constitutes providing “substantial assistance” to Elliott.
Of course, the league likely will argue that it will be the Commissioner who decides whether the Commissioner decides whether the resolution applies, with each of the Commissioner’s decisions final and binding.