Two simple legal documents could drive outcome of collusion case


The inherently complex collusion case filed by the NFLPA against the NFL could boil down to a pair of short and simple legal documents.

The antitrust lawsuits (filed by Reggie White and others in the early 1990s and by Tom Brady and others in 2011) and all other legal issues formally were resolved by the August 2011 Collective Bargaining Agreement, which operates like a standard settlement agreement.  But signing a settlement agreement doesn’t automatically end a legal case.  Steps are still required to wipe the lawsuit off the court’s docket.

And so the NFL and NFLPA accomplished that by signing a “Stipulation of Dismissal,” a common legal document that formalizes a commitment to end litigation.  On August 4, 2011, one lawyer for each side signed his name at the bottom of this agreement:  “The parties stipulate to the dismissal with prejudice of all claims, known and unknown, whether pending or not, regarding the Stipulation and Settlement Agreement (‘SSA’) including but not limited to the claims asserting breach of the SSA related to (i) television contracts and broadcast revenues; and (ii) asserted collusion with respect to the 2010 League Year, excepting only the pending claim filed March 11, 2011 relating to an alleged rookie shortfall on the part of the Philadelphia Eagles.”

The “SSA” was the settlement document from the White antitrust lawsuit, under which the new collusion claim has been filed.  The presence of terms in the stipulation like “known and unknown” and “pending or not” and “asserted collusion with respect to the 2010 League Year” will serve as strong ammunition for the NFL’s inevitable claim that the NFLPA waived in exchange for the new labor deal the new collusion claim.

NFLPA lead outside counsel Jeffrey Kessler fully understands that the “Stipulation of Dismissal” could derail the new collusion claim.  During Wednesday’s conference call regarding the new filing, Kessler argued that the “Stipulation of Dismissal” was trumped by Judge David Doty’s order that actually dismissed the case.

“There was a stipulation as part of the Brady agreement that the parties said they would propose to the court,” Kessler said.  “The court did not enter that proposed stipulation. . . .  Instead the court did its own ruling, which it’s allowed to do, which says that only claims pending are dismissed.  That’s it.  That’s all the court was willing to do, and the court, as the guardian of the class, this is for the class action, has absolute authority on that.”

Asked whether the “Stipulation of Dismissal” would have prevented the present collusion case if Judge Doty had acted on the document, Kessler said, “Possibly.”

The NFL will dispute Kessler’s characterization of Judge Doty’s order.  Actually, there was no separate order.  Instead, the official docket sheet says only this:  “TEXT ENTRY ONLY.  IT IS HEREBY ORDERED that all claims pending regarding the Stipulation and Settlement Agreement are dismissed.  All other outstanding motion are dismissed.”

Kessler believes this operates as a rejection of the “Stipulation of Dismissal,” in which the parties agree that “all claims, known and unknown, whether pending or not” will be dismissed, including claims for “asserted collusion with respect to the 2010 League Year.”  The NFL believes that the text entry on the docket sheet merely represents the mechanical closing of the case by the court, especially since the docket sheet also shows the filing of the “Stipulation of Dismissal” with no subsequent entry indicating it had been stricken or otherwise ignored.

Thus, while there may be plenty of evidence of collusion in 2010 (and we fully suspect there is), the NFLPA will have a very hard time circumventing the content of the “Stipulation of Dismissal.”  Even though the NFL believes that Judge Doty has a bias in favor of the NFLPA, all judges have a strong interest in seeing settled cases stay settled.  It’s hard to envision any judge agreeing with the argument that the NFLPA isn’t bound by the plain language of the “Stipulation of Dismissal,” which as written encompasses the collusion claim filed on Wednesday, along with any other claims that the NFLPA could have asserted “known and unknown, whether pending or not” prior to August 4, 2011.

We continue to keep an open mind, and we’ll read with great interest the briefs and memos submitted by the parties on the question of whether the collusion case should be dismissed on the basis that the claim was forfeited in exchange for the new labor deal.  For now, though, it appears that the collusion claim was one of the things that the NFLPA sacrificed in order to strike the current labor deal.

42 responses to “Two simple legal documents could drive outcome of collusion case

  1. OK, so if I understand this correctly…the NFLPA probably has no recourse due to the “Stipulation” agreement they signed that absolves the NFL of collusion. In essence, the NFL is safe from civil action, even though they broke a federal law, a felonious law at that, because the NFLPA signed a sheet of paper?

    When does the Labor friendly Obama Justice Department step in?

  2. It seems to me that De Smith is an incompetent dope and this only helps prove it.

    But on another note, what is the pending claim relating to an alleged rookie shortfall on the part of the Philadelphia Eagles?

  3. Im not sure if the NFLPA are the good guys but the NFL (Godell and the owners) seem to be the bad guys. King Roger is a tyrant who’s established a system in which rulings that he makes are final (appeals are handled by him or his cronies). The owners plot, scheme and politic. The boys and skins cap vote seems like obvious collusion to me. I miss Al Davis a truly independent voice who actually loved the game of football. Wasn’t afraid to challenge(sue) the powers that be and call BS.

  4. These guys won’t be happy until their greed destroys football. The owners, current, and former players are out to milk the NFL for all they can get NOW with no regards to what their actions will do to future generations of sports fans and athletes.

  5. The NFL wins, Kessler gets paid phat again.

    If the Skins & Boys (and to a lesser degree the Saints & Raiders) hadn’t broken their pact with the other teams this lawsuit wouldn’t have even happened. Danny boy and Jerrah brought this on. The league had to punish them; it wasn’t fair to everyone else that didn’t dump in 2010. Stop blaming Goodell for this…it’s ridiculous.

    In terms of running the league, a truly uncapped year doesn’t make sense on a lot of different levels. Given the way the league is setup, they need a solid cap every year to maintain competitive balance among other reasons like meeting the salary floor in the years to come. No doubt what they did was collusion, but it was intelligent and necessary collusion. The league really had every right to maintain the salary cap system. $123 mil is a good number; they didn’t short the players. The Redskins and Cowboys paid them extra phat.

  6. I have said it before and and I restate it here: The league has had better legal advice than the NFLPA. Period. Kessler is depending upon a judge who has ruled favorably in the past to do the same in the future. Unfortunately, this time the NFLPA has clearly waived their legal right to pursue the matter. The owners were more than willing to flout the fact that they broke anti-trust laws with illegal collusion in the 2010 year and leveraged their advantage with respect to the salary cap to force the NFLPA to join them in their action against Wahsington/Dallas.

    Kessler needs to tidy up the resume and start looking for new clients. He is done.

  7. It seems like the player’s union is doing everything they can to kill the gold egg laying goose.

  8. c’mon people be reasonable.

    we can’t really expect kessler to let things like facts, contracts, and logic get in the way of making his argument can we?

  9. I am so tired of millionaire suing millionaires about crap that has nothing to do with the real world. We have players who are paid obscene salaries to beat each other 8up angry at owners who hire players to beat each other up. Everybody but morons know that the game is not part of reality. If it were nobody would give a rats rear end about it much less pat ridiculous prices for tickets and “seat licenses” but we do, so you all shut up and play ball.
    Hockey players have it right.

  10. Its only been discussed minimally, but wouldn’t a victory by the NFLPA be detrimental to the majority of the players around the league in that the salary cap would be lessened? To me it’s a lose lose lose situation for the player’s association. You can A) lose in court AGAIN. B) Lose salary cap for majority of NFL players by “winning” in court. C) Lose in the court of public perception by again making law the topic of discussion in the off season for the 2nd year in a row.

  11. what is the pending claim relating to an alleged rookie shortfall on the part of the Philadelphia Eagles?


    The NFL Players Association is looking into whether a trade between the Eagles and Cardinals this week was a means to get around paying money into the rookie salary pool.

    The Eagles traded fullback Charles Scott to Arizona for Jorrick Calvin.

    Scott was selected with the 200th pick , Calvin was chosen at No. 201.

    According to the report,
    “under collective bargaining rules, if a drafted rookie is cut by the team that drafted him, that team is required to pay 85 percent of that player’s salary into a rookie pool.

    The way the rule is written, teams could circumvent the rookie pool payment by trading a drafted player they were going to cut to another team — and have that team cut the player.”

  12. So the NFLPA is trying to pull a fast one and hopes Doty hates the owners enough to help them do it. Don’t count on it.

  13. So in filing and then settling a BS lawsuit about RFA in 2010, the NFLPA may have closed the door on itself regarding a different matter of collusion where they actually have a case and now they’re putting a union friendly judge in a position where he would have to go against his own ruling in order to support their case? That’s priceless.

  14. Mike,
    I know you get all hot and heavy when you talk about these legal proceedings, but can you put a paragraph at the end that summarizes this mumbo jumbo for a vast majority of the readers that don’t know lawyer speak?

  15. It seems like Kessler, who was NOT in favor of agreeing to the new CBA, is trying to make a bad deal for the players, a bit better through litigation.
    If Judge Doty had specifically rejected an AGREED Stipulation between the parties, there would be a SPECIFIC orders such which obviously been challenged by the parties at a hearing.
    As Kessler knew of the agreement, and in fact participated in it’s drafting, his lawsuit is a bit disingenuous. I see a large award of attorneys fees coming for filing a frivolous claim!

  16. The players signed an agreement with the owners and should be looking to build a partnership and the brand instead of suing. Ridiculous!

  17. gsatt2112 says:May 25, 2012 12:14 AM

    “King Roger is a tyrant who’s established a system in which rulings that he makes are final (appeals are handled by him or his cronies).”


    The players gave him that power via the CBA.

    They agreed to it because less than 5% of the players are affected by his punishment. If you were in the other 95%, would you choose to negotiate this, or something else like pensions and health care after you retire?

    Yea, didn’t think so.

  18. poopoodoodoohead says:
    May 25, 2012 12:12 AM


    Please leave politics off of this board. There will be more than enough political venom in the coming months.

    gsatt2112 says:
    May 25, 2012 12:14 AM


    The NFLPA had ample opportunity to collectively bargain away Goodell’s power. They decided it wasn’t important enough to give up anything else they wanted. Blame the NFLPA. The NFLPA won’t even help the league mandate mouthguards, additional pads or the latest concussion resistant helmets because it want’s the league to give up something to increase the safety of the players. How self destructive is that?

  19. mikeyhigs says:
    May 25, 2012 12:13 AM
    It seems to me that De Smith is an incompetent dope and this only helps prove it.

    But on another note, what is the pending claim relating to an alleged rookie shortfall on the part of the Philadelphia Eagles?
    thats what i wanna know.

  20. Honestly,
    This is just another attempt for the players to get money for nothing. As was pointed out by Florio, other than legal fees there’s not much of a downside for the NFLPA.

    There should be though. They are asking a judge to ignore legal documents they signed. They also signed off on the fining of cap space from the Skins and Boys in exchange for more money.

    Now that they have their money from the CBA and they have their money from agreeing on the cap penalty they want a do over? But not a complete do over, they aren’t giving up the money they are required to get under the cap, they are not giving up the cap bump they got this year from the NFL in exchange for the penalties. In fact, they don’t want to give up anything that signing those documents benefitted them.

    They are like the people who pretend to slip and fall in stores, hoping that they will pay up quickly to avoid bad publicity. Is it any coincidence that rush to one single judge, EVERY TIME? Is it any coincidence that the player friendly judge get’s overruled EVERY TIME THE NFL APPEALS HIS RULINGS?

  21. The NFLPA seems to be placing a reasonable ally in a very difficult and somewhat embarrassing professional situation. I want to assume that its counsel has some inkling that the court intended to leave this
    opening before filing this action. The result could be a blanket recusal of Doty from all NFL matters simply because of the appearance of improptiety.

  22. Florio,

    Thanks for the update! So if I’m reading this correctly (and I’ll show my work for other readers)-

    The parties agreed to a stipulation of dismissal, with routine language that would bar this suit.

    The Court entered a standard, order, closing the case, that didn’t in any way explicitly strike the stipulation or contain any reasoning. As an aside, these order happen all the time. When a court, for example, denies a motion, sometimes you just get a “DENIED” without an attached order explaining the reasoning. This looks like a routine closing of the case.

    Kessler is going to argue that this order explicitly rejected the joint stipulation, and replaced it with new reasoning, without explanation from the judge. That…. that’s creative.

  23. bucs13 says:
    May 25, 2012 7:38 AM

    Exactly. The document signing and court orders are entirely standard procedure, and Kessler knows it. He is doing what all lawyers do, when they have a client desperate to get out from under a result they now realize they don’t like, and the lawyer knows there is no good basis to do so (and the client is willing to pay the lawyer for the time it takes to do this) – the lawyer dreams up creative technicalities in the hope a judge might come to work one day still hung over and not be thinking very clearly when they consider the matter.

    In layman terms, this is calling throwing a mess against the wall in hopes something might stick.

    BTW, Kessler has already shown he is an ass in many ways. But that’s another story.

  24. Stop it De Smith!
    This is akin to the employee unions wanting to run the company, reap the profits, but take none of the liability if things go wrong.
    I am so sick and tired of the players wanting it every way they can have it. I am sure that De Smith will ask Obama (who is bought & paid for by union hacks) to come to the NFLPA’s defense and mandate that the “evil rich” NFL owners give the NFLPA whatever it wants

  25. If I,m reading this correctly, to me all the NFLPA would have to do is prove that the NFL did not act in good faith and it would void that agreement.

    This is from the CBA

    Article 2 Section 4 (b)

    The question of whether the parties engaged in good faith negotiations,
    or whether any proposed change in the NFL Constitution and Bylaws would violate or
    render meaningless any provision of this Agreement, may be the subject of a Non-Injury
    Grievance under Article 43,

  26. “If I,m reading this correctly, to me all the NFLPA would have to do is prove that the NFL did not act in good faith and it would void that agreement.”

    You’re not reading this correctly. That part of the CBA (and the CBA in general) has no relevance to this issue.

    The issue here is one of finality. The cases were dismissed, and it appears that language in the joint stipulation would waive the bringing of any claims such as this one. Pretty standard stuff.

    AFAIK, this is a legal hail mary.* Sometime a hail mary is completed. Usually it falls down incomplete well short of the end zone.

    *Honestly, from what I’ve seen, this looks closer to a TD + a 2 point conversion + a hail mary, but hey- I’m only going on the press accounts.

  27. When will Congress step in?

    Not saying the NFLPA is right here…they are most likely guilty of being stupid and having bad legal counsel, trading away their future rights for a short-term bump in the cap one year.

    But, while the NFL owners and league leadership are not stupid, they are clearly a corrupt group only out to serve their own interests. For years, they knew about concussions — ignored it — and now that law suits are threatened, make a big show about being “safe.” It’s disengenuous.

    They are bullies in how they deal with the players, as evidence by Goddell’s actions and edicts. And they are unfair to their own, as evidence by the Redskins/Cowboys cap fiasco.

    Tell me why this group should be given anti-trust protection? For the public good? They are using their anti-trust protection to line their pockets. If there were true free market forces, they would be forking out more money and probably reaping less profits, as competing leagues would emerge to siphon off some of their star players.

    The way I see it, the owners benefit from anti-trust protection and everyone else is screwed (remember, there would be owners, players, officials, etc. of competing leagues…by definition those people LOSE money as the NFL is allowed to maintain a monopoly.

    So what is the real public good that justifies this collection of old rich men running rough shod over everyone they come in contact with?

    Theyare all going to tear it down. I love football but I am ready for Congress to stick their big corrupt noses into the mix as well.

  28. I’m not exactly sure how this would go, but once collusion is established doesn’t this become a criminal issue, not a civil one?

    And any agreement that was entered into based on criminal acts would just become pretty much void, wouldn’t they?

  29. @miles58a:

    The language you quoted is irrelevant to whether the stipulation of dismissal is upheld.

  30. @mullman7675:

    The Owners didn’t “sneak” anything in at all. Both sides were represented by teams of [arguably] competent attorneys. Both sides had plenty of time to review the language in the stipulation of dismissal before signing it. The fact that the stipulation specifically refers to “asserted collusion with respect to the 2010 League Year” shows that there is no way the NFLPA didn’t know what they were agreeing to dismiss.

  31. “When will Congress step in?”

    Yes. Congressional involvement always makes things better. Clearly, the one thing we need right now is congressional oversight of professional football, because… well, just because. Maybe then the Saints might not have had to forfeit draft picks?

    “as competing leagues would emerge to siphon off some of their star players.”

    Nothing is stopping competing leagues. You may remember that there have been a few competing leagues recently. People just don’t watch them. There is nothing stopping you, right now, from starting your faux-NFL league. Perhaps you could get Vince McMahon to back you?

  32. So, what we’re seeing here is that even when doing something as illegal as allegedly colluding to create an interim salary cap between CBAs, some of the owners were so greedy that they couldn’t even collude without turning on each other.

    AND, the NFLPA (or certain members) were so in fear of losing their positions, that rather than continuing to fight for the best deal for their clients, they not only settled, but also agreed to sign a document that waived their rights to pursue past grievances.

    And now, they all want a do over because they don’t like looking stupid.

  33. dikshuttle says:
    May 25, 2012 10:09 AM
    I’m not exactly sure how this would go, but once collusion is established doesn’t this become a criminal issue, not a civil one?

    And any agreement that was entered into based on criminal acts would just become pretty much void, wouldn’t they?
    Short answer – not all collusion is criminal, and without a criminal conviction, it’s not possible to claim in a separate civil case that an agreement is criminal. To be criminal, one has to show criminal intent, along with the illegal action (collusion) itself. The reasons so few antitrust cases are pursued as criminal cases are (1) it’s hard to prove “criminal” intent as defined by law and (2) the government prefers not spend lots of resources trying a criminal case when private parties can pursue their remedies (which include treble damages) in a civil case.

  34. Nice write up Mike and shows due diligence on your part. Extremely informative. I’m proud of you. The lawyer in you came out with this one. Nice job

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