The rollercoaster ride that is the NFL labor situation took yet another turn today as the 8th Circuit Court of Appeals granted the NFL’s request to stay Judge Nelson’s order enjoining the league’s lockout. The three-person judicial panel comprised of Judges Steven Colloton, Duane Benton and Kermit Bye has tarnished the brief sense of optimism surrounding the league as it conducted its annual draft in New York. The 8th Circuit’s ruling once again potentially puts the 2011 season in jeopardy. While the courts and the parties have all indicated they would be working to resolve this expeditiously, the reality is that nothing happens quickly in litigation except racking up legal fees and growing more frustrated.
The court’s rationale for staying the order was “to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal.” Judges Colloton and Benton voted to lift U.S. District Judge Susan Nelson’s temporary injunction against the NFL’s lockout of its players. Judge Bye dissented, writing that the NFL did not face a “true emergency.”
Colloton and Benton lifted the temporary injunction in a one-paragraph statement:
“The motion of appellants National Football League, et al., for a temporary stay of the district court’s order dated April 25, 2011, pending a decision by this court on the appellants’ motion for a stay pending appeal, has been considered by the court and is granted. The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal. See, e.g., In re Grand Jury Proceedings, 841 F.2d 230, 232 (8th Cir. 1988) (describing grant of temporary stay to consider motion for stay pending appeal); see also Cobell v. Norton, No. 03-5262, 2004 WL 603456, at *1 (D.C. Cir. 2004) (describing administrative stay procedure); Arnold v. Garlock, Inc., 278 F.3d 426, 433 (5th Cir. 2001) (describing implementation of temporary stay to provide sufficient time to consider fairly whether a formal stay pending appeal should issue); Twelve John Does v. District of Columbia, 841 F.2d 1133, 1137 (D.C. Cir. 1988) (describing entry of a temporary administrative stay to permit time for full consideration of motions). The district court’s order of April 25, 2011, is temporarily stayed.”
Bye dissented in a slightly longer statement, which included:
“In my tenure as an appellate judge, the only circumstances I can recall in which the power to grant a temporary stay has been invoked by a party, and exercised by our court, have been circumstances which truly qualify as emergencies. For example, I have granted such a request on behalf of an immigrant who has filed a petition with our court to review a removal order entered by the Bureau of Immigration Appeals (BIA), when the immigrant’s removal date was imminent and the government had not yet responded to the immigrant’s request for a stay of removal pending our review of the petition. Another situation in which a temporary stay, pending review of a motion for a stay itself, may be appropriate is in a death penalty case where an execution date has been set and is imminent.
“Such circumstances qualify as true emergencies because of the impossible or nearly impossible task of reversing the consequences of allowing a district court’s order to take effect. We cannot reverse the consequences of an execution if it takes place before we have had a chance to hear from both parties. Similarly, an immigrant who has already been removed faces a very difficult task of returning to this country should we actually grant a motion for a stay of the removal pending our review of the immigrant’s petition.
“The NFL has not persuaded me this is the type of emergency situation which justifies the grant of a temporary stay of the district court’s order pending our decision on a motion for a stay itself. If we ultimately grant the motion for a stay, the NFL can easily re-establish its lockout. The NFL is certainly not in the same emergency position as an immigrant about to be removed, or an individual about to be executed, who cannot so easily reverse the consequences of initially allowing a district court’s order to take effect. Because I believe we should limit our reliance on Eighth Circuit Rule 27A(b)(4) to true emergency situations, I disagree with the panel’s decision to enter a temporary stay based on the circumstances involved in this case.”
Judge Bye’s dissenting opinion should resonate with NFL fans who are extremely critical of the league and its executives. The NFL has become the pinnacle of American sports in terms of prosperity and popularity. The league generated over $9 billion and they are quarreling over how to split that up and share with the players who are the ones that put their lives and well-being on the line to entertain the public. Now they are seeking relief from the court under a federal rule that is typically reserved for true emergencies. The appeals court is expected to rule next week on the NFL’s request for a more permanent stay that would last through its appeal of the injunction, a process expected to take up to two months.
The announcement that the lockout had resumed came right after the third round of the NFL draft had ended. NFL spokeman Greg Aiello said that “teams have been told that the prior lockout rules are reinstated effective immediately.” Ironically and unfortunately, this all came on the same day that players returned to their teams’ facilities for the first time since March. The players went from breathing sighs of relief and exchanging high-fives with teammates in the morning to feeling despondent and frustrated as midnight approached and the league went back into lockout mode.
Joe Linta, an agent who represents Baltimore Ravens’ quarterback Joe Flacco, wants the NFL to go forward with free agency despite the decision. “The owners will create a huge injustice to their own GMs and personnel departments if they don’t allow the signing of undrafted free agents,” he said. “They may not care about the players, but they should at least help their own scouts, coaches and personnel people who have worked so hard in the scouting process. This is by far the biggest issue of the next 48 hours.” I would argue it is ONE of the biggest issues. The newest members of the National Football League, the players that were just selected in the draft earlier this week, are left in limbo as they begin their professional careers. They were just drafted, and now they can’t even talk to their new teams.
This entire fiasco has been nothing short of a rollercoaster ride. Unfortunately for the fans and the players, there doesn’t appear to be an end in sight. It is likely that the lockout will remain in effect for the foreseeable future as the courts decide what to do with the motions and injunctions. This means we have no clear answers on what will happen with free agents or how the new rookies will fit into their new teams. The more these issues get tied up in the legal system and reliant on the courts to untangle, the more likely it is that the summer mini camps will not start on time. After that, all bets are off.
One other area where the labor dispute will have a tremendous effect is the fantasy sports industry. Fantasy football is by far the most popular and prosperous sport for fantasy leagues and participants. Without free agency and with a potential delay or cancellation of the 2011 season, several fantasy football companies will suffer catastrophic financial losses. From printing magazines with projections to hosting websites where leagues play to providing advice and content, there are lots of people whose well-being is dependent on whether there is a season. Fantasy sports is considered by some to be an impregnable citadel of financial security due to its constant growth and popularity amongst financially stable Americans. However, this labor dispute is the one potential piece of kryptonite that could give fantasy football a harsh reality check. Let’s hope for everybody’s sake that cooler heads prevail, the courts do what they are supposed to do, and we can all get ready for some football.
In Jerry Reese we trust. Since Reese became the Giants’ general manager a few years ago, he has developed a well-deserved reputation as being one of the NFL’s best evaluators of talent at the top and bottom of the draft. Almost all of his draft picks have made the team and contributed on the field. Assuming there is an NFL season, 2011 looks like it will not be any different as the Giants drafted Nebraska cornerback Prince Amukamara with the 19th selection in the first round. Amukamara, the defensive player of the year in the Big 12 Conference, was surprisingly available for the Giants who gladly scooped him up.
In 2010, his senior season, Amukamara had 59 tackles and one sack. He did not have any interceptions, but that is more as a result of opposing teams refusing to throw in his direction – much like Derrelle Revis of the New York Jets. With Amukamara essentially negating his opposing team’s best receiver, the Cornhuskers allowed only 153.6 passing yards per game in 2010, which was the fewest in the Big 12 and the fifth lowest in the entire country.
Now the Prince comes to New York where he will likely step right in and play opposite Corey Webster forming a potentially formidable combination on the corners. Reese was thrilled to get Amukamara who he described as “big and fast, and a good tackler; a physical player.” Reese also acknowledged that he thought Amukamara “would get picked a lot higher than that.” Amukamara provided NFL-type defense while in college and received ringing endorsements from his coach, Bo Pelini, who thinks that he “has all the tooks to be an outstanding pro.” These tools will be put to the test as the Giants embark on their journey back to the playoffs after missing out the last couple years. Part of the reason for the Giants late season collapses was untimely defensive lapses and big plays allowed. Amukamara should help prevent that from happening again as he looks to establish the NFC’s version of “Prince Island.”
The NFL plans on seeking a stay from Judge Nelson pending an expedited appeal to the Eighth Circuit Court of Appeals arguing that federal law bars injunctions in labor disputes. If there is no stay of Nelson’s decision, free agency and other offseason business could begin in theory, but it is unknown how it would operate.
“This is a good ruling, for sure, but I never want to celebrate until it’s actually over,” said NFLPA Players Association executive George Atallah. On the contrary, NFL Commissioner Roger Goodell said that Nelson’s ruling in favor of the players may “endanger one of the most popular and successful sports leagues in history.” Goodell believes that the players’ approach would force the NFL to operate in a vastly different manner, and that only some star players and their agents would benefit while a majority of players (and fans) will suffer.
But as fans, we already have suffered. The fact that the owners likely orchestrated this whole fiasco several years ago and are now creating a labor dispute because $9 billion in revenue is not enough to share is a tough pill to swallow for NFL fans living in a cash-strapped economy. The players are not free from blame, but the onus needs to be on the owners and the Commissioner’s office for creating this mess and making it exponentially worse. NFLPA executive director DeMaurice Smith said on ESPN: ”If we’re in a world where players are actually suing so they can play football … that tells me we’ve lost our way.” Well said.
The two sides have unsuccessfully participated in federal mediation multiple times over the last several weeks. The main issues still separating NFL owners and players are how to divide the $9 billion in revenue the league generates, the NFL’s push to expand the regular season to 18 games and benefits for retired players.
The most recent collective bargaining agreement expired 11:59 p.m. on March 11, 2011. The players determined that it was not in their interest to remain unionized if the existence of such a union would serve to allow the NFL to impose anticompetitive restrictions with impunity. A substantial majority of the players voted to end the collective bargaining status of their Union, and the player representatives of the Union then voted to restructure the organization as a professional association rather than as a union. Accordingly, at approximately 4:00 p.m. on that day, the NFLPA informed the NFL that it disclaimed any interest in representing the Players in further negotiations. The NFLPA also filed notice with the Department of Labor to terminate its status as a labor organization. See Brady, et al. v. NFL, et al., CASE 0:11-cv-00639-SRN-JJG (D. Minn.) at 13 (April 25, 2011).
The NFL argued that the decertification of the NFLPA was a sham and that the National Labor Relations Board should first rule on a league complaint filed about the decertification before the federal courts decide on the players’ lawsuit.
Once the union was decertified and players were allowed to file grievances on their own behalf, they filed a complaint alleging several antitrust claims under Section 1 of the Sherman Act as well as breach of contract and related tort claims. They allege that the NFL and its thirty-two separately owned and independently operated teams have jointly agreed and conspired – “through a patently unlawful group boycott and price-fixing arrangement” or “a unilaterally-imposed set of anticompetitive restrictions on player movement, free agency, and competitive market freedom” – to coerce the players “to agree to a new anticompetitive system of player restraints” that will economically harm the Plaintiffs. Of importance regarding the classification of the NFL and its 32 separately owned teams, the United States Supreme Court recently ruled that the NFL is comprised of 32 individual corporations and cannot form a single corporate entity to evade Section 1 of the Sherman Act to develop, license and market their intellectual Property. See American Needle, Inc. v. National Football League, 130 S. Ct. 2201 (2010).
One of the alleged anticompetitive agreements is the NFL’s lockout aimed at shutting down the entire free agent marketplace, as well as a boycott of rookies and players currently under contract. The players moved for a preliminary injunction the same day seeking “to enjoin the NFL from perpetuating the lockout.” In response, the NFL claims Judge Nelson and the District Court of Minnesota may not enjoin their “exercise of their labor law right to lock out their player-employees” as the lockout “is unquestionably lawful and permitted by federal labor law.”
To Nelson’s credit, she took into consideration everything and everyone who is potentially affected by a lockout imposed by the NFL and the ramifications for possibly not playing football in 2011. Plaintiffs argued that because of the constant pressure to prove their physical and economic worth, the loss of an entire year in a short professional athletic career cannot be recaptured and, therefore, cannot be adequately compensated by damages. The players further argue that time spent off the playing and practice fields diminish their skills. As a result of sitting out an entire season, this diminishment in skills could shorten or end the careers of some players.
Judge Nelson also considered the public interest in her analysis. In fact, Supreme Court has reiterated that courts “should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” The public has an interest in the enforcement of the Sherman Act, which, by seeking to ensure healthy competition in the market, has a broad impact beyond the immediate parties to this dispute. Moreover, the public ramifications of this dispute exceed the abstract principles of the antitrust laws, as professional football involves many layers of tangible economic impact, ranging from broadcast revenues down to concessions sales. And, of course, the public interest represented by the fans of professional football – who have a strong investment in the 2011 season – is an intangible interest that weighs against the lockout. In short, this particular employment dispute is far from a purely private argument over compensation.
While this decision is a victory for the players and for the fans, it is by no means an indication that a quick resolution is in order. The decision has no impact on the NFL Draft which is scheduled to begin this week. Because there is no operative collective bargaining agreement and the NFLPA has been decertified, players may not be traded once they are selected by an NFL team. The only trading that can take place is the exchange of draft picks – not people. Additionally, the 2011 season is still potentially in jeopardy. We can only hope that the Court’s ruling will help promote continued mediation and settlement discussions between the players and owners. I shudder to think, but can you imagine what the winter would be like without the NFL and fantasy football? Inconceivable (yes, a Princess Bride reference).
When college football players dream of playing in the NFL, one of the highlights they envision as they embark on the journey is hearing their name called at the NFL Draft and having a photo taken with the Commissioner. It has been a tradition for decades and something that NFL players say is a lifelong dream. This sentiment is no different this year for the incoming class, except this year’s draft is unlike any other.
As reported in the USA Today, the NFL Players Association is considering hosting an alternative event in New York to ingratiate the this year’s rookie class, and forego the tradition of the NFL Draft during the weekend of April 28-30, 2011. This concept is clearly a result of the labor strife that has caused the NFL’s first work stoppage since 1987. NFLPA spokesman George Atallah seemed to think that the rookies have no incentive to attend the NFL Draft.
“The prospective players are locked out. That’s the business reality they face. They can’t negotiate a contract. So it strikes me as odd that they would attend an event organized by a group of people that locked them out.”
Atallah insists that the NFLPA hasn’t called for a boycott of the NFL Draft. However, this is a clever way of achieving the same goal without directly endorsing it. Prospective draftees could be placed in an unenviable position having to choose between getting called to the podium and having a picture with the Commissioner, or attending an event where they will be embraced by their new professional teammates. This is a critical decision for the rookies to make because once they are drafted, they are “one of the boys.” During this labor strife, the players want to remain unified, and that includes the rookies because the rookie pay scale is one of the biggest issues in the negotiations.
There are many problems with this whole situation. But one thing that should not be overshadowed goes beyond the war between players and owners. Yes, the players rightfully want to stay unified. No, the rookies cannot negotiate a contract even if they attend the NFL Draft and have their picture taken with the Commissioner. But it isn’t the rookies’ fault that this labor dispute has unfolded right now. They should not have to be forced to choose between living a lifelong dream of attending the NFL Draft or attending an event hosted by the players. No matter what the NFL players say publicly, the question must be asked whether there would be any repercussions or stigmas placed on rookies who do attend the NFL Draft.
The ironic thing about all of this is that if a rookie does attend the NFL Draft, the man’s hand that he will be shaking will be the hand of the man who is locking him out.
Despite the heroic efforts of federal mediator George Cohen and favorable decisions issued by the Court, the inevitable is finally upon us. The NFL officially has its first work stoppage since 1987 as labor talks broke down and the NFL Players Association (“NFLPA”) decertified. Cohen conceded that his attempts at facilitating an agreement have become futile:
“The parties have not achieved an overall agreement, nor have they been able to resolve the strongly held competing positions that separated them on core issues. No useful purpose would be served by requesting the parties to continue the mediation process at this time.”
By dissolving and announcing it no longer represents the players in collective bargaining, the NFLPA cleared the way for class-action lawsuits against the NFL, which opted out of the CBA in 2008. The CBA was due to expire on March 4, 2011, and then was extended twice with the wishful thinking that the owners and players could find common ground on the key issues, which include: 1) how to divide more than $9 billion in annual revenues, and 2) how much financial information the league would be willing to turn over.
The ramifications of this impasse could be a lengthy court battle that could potentially jeopardize the 2011 season as it did in 1987 when the players went on strike and the league used replacement players. More recently, the NFLPA decertified in 1989, and antitrust lawsuits by players led to a new CBA in 1993 that included free agency, and the union formed again that year.
Union head DeMaurice Smith said the parties discussed a proposal that the owners had presented. While significant differences continue to remain, Smith informed the owners that if there was going to be a request for an extension, then the players would ask for ten years of audited financial information to accompany that extension. About 15 minutes later, the union decertified.
While the net result isn’t good for anyone, each side thinks they are more reasonable than the other. A representative of the NFL stated that :”the union left a very good deal on the table,” which included splitting the difference in the dispute over how much money owners should be given off the top of the league’s revenues. Under the expiring CBA, the owners immediately got about $1 billion before dividing the remainder with the players; the owners originally were asking to roughly double that by getting an additional $1 billion up front.
In addition, the NFL allegedly has offered to mantain the current 16-game regular season schedule with four pre-season games for at least two seasons (with any changes negotiable), institution of a rookie wage scale through which money saved would be redistributed to pay veterans and retired players, creation of new year-round health and safety rules, establishment of a fund for retired players including $82 million contributed by the owners over the next two years, and disclosure of the league’s audited financial profitability information. The NFLPA rejected this offer which led to the current impasse.
So here we are…exactly where we hoped we wouldn’t be a long time ago. Fortunately, there is so much to lose on both sides that resolution is inevitable before the 2011 season starts. The rookie draft will still take place in April and other business will still resume as normal. Right now we are in the middle of March where college basketball is at the forefront of the sports world, then to be followed by Opening Day and the beginning of the baseball season. Right after that we have the NBA and NHL playoffs which will lead us into the summer. So there is plenty going on to keep us sports fans occupied. My advice for now is to put the NFL issues on the backburner and let the parties work out their conflicts. Both the owners and players have incentives to reach an agreement. Granted, if an agreement is not reached in a timely manner, there could be a serious detrimental effect to a lot of people and a lot of businesses. But there is no need to push the panic button just yet. Hopefully cooler heads will prevail and everyone will realize that resolution is the best solution.
During the work stoppage, NFL Commissioner Roger Goodell’s salary will be $1.00. This is wonderful news, except I don’t feel bad for him. Plus, if the league and the players wanted resolution without having to expend all the costs and fees associated with litigation federal mediation, they could have just paid me $100.00 to settle the dispute on behalf of the Supreme Court of Fantasy Judgment, which would have entitled the NFL and NFLPA to a season’s worth of unlimited dispute resolution services. Maybe next time Mr. Goodell.
There is no dispute that the worlds of professional football and fantasy football are now intertwined in many respects. We know that NFL players themselves participate in fantasy leagues. The NFL’s own website has its own fantasy products and content (www.fantasy.nfl.com). There are several television, radio and internet programs and shows dedicated to fantasy content, statistics, and advice. And when a person wins a fantasy football league, one of the awards they may receive is a trophy symbolizing their victory – much like the prestigious Vince Lombardi Trophy awarded to the Super Bowl champion. However, there is a fine line that cannot be crossed before the conglomerate known as the National Football League turns fantasy football fun into a legal reality.
Titlecraft, Inc., a company that manufactures fantasy football league trophies, sought a declaration from the NFL that its trophies do not infringe the NFL’s rights in the Lombardi Trophy. The NFL subsequently filed a counterclaim against Titlecraft asserting claims of copyright and trademark infringement. The Lombardi Trophy, designed and manufactured for the NFL by Tiffany & Co., is made of sterling silver and consists of a replica football sitting at a downward angle atop a three-sided base with concave sides, which get smaller as they rise. See Titlecraft, Inc. v. National Football League (U.S.D.C. – Dist. of Minnesota, Civ. No. 10-758). There is no dispute that the NFL holds a valid copyright registration for this trophy.
Titlecraft’s trophies are similar to the Lombardi Trophy in that they consist of a football sitting at a downward angle atop a based with three tapered sides. Despite the fact that the sides of Titlecraft’s trophies are not concave and are made of wood rather than silver, the NFL issued a cease-and-desist letter to Titlecraft in August 2009 informing them that they were infriging the NFL’s rights in the Lombardi Trophy. The NFL demanded that Titlecraft “stop selling its trophies and account for all profits it had derived from its allegedly infringing products.” In response, Titlecraft denied any infringement and continued to sell its trophies.
On March 11, 2010, Titlecraft brought an action against the NFL seeking a declaration that its trophies do not violate any intellectual property rights of the NFL with regard to the Lombardi Trophy. The NFL then sought summary judgment regarding Titlecraft’s liability for copyright infringement. In order to establish a claim for copyright infringement without direct evidence of copying, the NFL must demonstrate that (1) it owns a valid copyright to the Lombardi Trophy; (2) Titlecraft had access to the trophy; and (3) Titlecraft’s trophies are the Lombardi Trophy are substantially similar. Because there was no dispute that the NFL owned a valid copyright or that Titlecraft had access to the trophy, the only issue remaining for the court to consider was substantial similarity. The requisite criteria for substantial similarity is that the works be similar in both ideas and expression.
The United States District Court for the District of Minnesota easily concluded that Titlecraft’s trophies were substantially similar in idea to the Lombardi Trophy. There was no disputing the physical similarities between the trophies, including the downward-angled footballs atop tapered bases, the scale of the footballs to the bases, the lack of any other football-related adornments, the direction of the laces on the footballs, and the smooth surfaces of the footballs. Additionally, Titlecraft conceded that their trophies, much like the Lombardi Trophy, correlate to performance where they represent the highest achievement with regard to success. As for substantial similarity in expression, the standard is whether the concept and feel of the works is similar when viewed from an ordinary person’s perspective when observing the works together. The mere fact that there are differences between the works is irrelevant because the analysis hinges on their similarities. The court strongly determined that “no ordinary observer could conclude that Titlecraft’s trophies have anything but the same concept and feel as the Lombardi Trophy.” In fact, the court went on to state that Titlecraft’s trophies are “appropriations” of the Lombardi Trophy because they are so similar in “shape, size, aesthetics, and feel” when viewing them side by side.
In the end, the court ruled in favor of the NFL granting their motion for partial summary judgment against Titlecraft. What this means is that a conclusive finding of liability for copyright infringement has been determined by the court. Now it is just a matter of how much the damages will be. The case will likely get resolved within the next few months through alternative dispute resolution or with the assistance of the Magistrate Judge.
So what can we take away from this case? It is quite clear how protective the NFL is of its intellectual property and marks. I personally can attest to this as well. I negotiated a contract with the NFL to have Fantasy Judgment’s (www.fantasyjudgment.com) services offered on the NFL.com fantasy football website this past season. Part of the contract included me agreeing not to use, promote or advertise any of the NFL’s marks or logos on my website or through any forum when discussing Fantasy Judgment’s affiliation. I exchanged several emails with the NFL’s legal team so that I completely understood what I was allowed to do in regard to advertising and promoting this partnership. It was explained to me that there is significant value in the NFL’s marks, and they do not allow anyone to prosper from using these marks without appropriate compensation. It actually does make a lot of sense. While I can state on my website that Fantasy Judgment and the NFL have an agreement, I could not put the NFL logo or any other mark on the website along with that statement. In the current case, the NFL has a protected proprietary interest in the Lombardi Trophy. Any attempt to capitalize off of that intellectual property interest without just compensation is prohibited by the NFL and punishable by the courts. The reality is that the NFL was not necessarily harmed by Titlecraft’s use of the Lombardi Trophy as the basis for their products. The NFL is not in competition with Titlecraft selling replica trophies to fantasy football leagues. It all comes down to money. The NFL rightfully does not want anyone else to profit or gain off the use of its intellectual property. The moral of the story is – don’t mess with the NFL.
The fantasy sports industry has been continually growing over the last 20 years. Now firmly entrenched online, the industry has reached new heights and has even been relatively insulated from the economic problems facing the United States and the rest of the world. There are so many different niches within the fantasy sports universe, and this has promoted several entrepreneurs to capitalize on a thriving market. One of these markets is the fantasy sports trophy business. There clearly is a need and desire for such a product because people who play fantasy sports want to feel that sense of accomplishment when achieving victory. What better way to do that then provide a trophy – especially one similar to the actual NFL championship trophy? But again, there is a fine line between fantasy and reality. Titlecraft crossed that line, and it is going to cost them an unspecified amount of money (and perhaps more) for trying to replicate the NFL experience in the fantasy universe.
Please feel free to share your thoughts on this issue. Leave a comment, drop me an email at firstname.lastname@example.org, write on Fantasy Judgment’s wall on Facebook, or find me on Twitter at www.twitter.com/FantasyJudgment and send a tweet.
With Week 16 of the 2010 NFL season already underway, we are fast approaching the playoffs and Super Bowl XLV. There is undoubtedly a lot of excitement and anticipation going into these next few weeks as teams position themselves for a post-season run. But this NFL season has been quite an interesting ride the whole way through, and not for obvious reasons. This season will likely go down as a turning point in the NFL’s history because of so many issues, circumstances, individuals, and actions that have dominated the headlines. Needless to say, Commissioner Roger Goodell certainly is earning his paycheck this year.
First, there is the specter of a potential work stoppage heading into the 2011 season. The current collective bargaining agreement is set to expire and as of right now there is no deal in place. The current rumors coming from Goodell’s office are that he doesn’t expect there to be a work stoppage, but I for one am skeptical about that. The players and owners have too many issues and too much money at stake to just simply resolve their differences without exerting some form of control over each other. I for one doubt that any work stoppage or labor issues will effect the 2011 season. There will likely be lots of posturing between the players and owners after the Super Bowl and before training camps begin next summer. At the end of the day, all of the owners and players involved will realize there is too much money to risk over not starting the season on time. The ironic thing about that is that the owners would still actually make as much money whether the players play or not. But I think the owners are smart enough to realize that the NFL brand is the most powerful and prosperous in all of sports, and they will not want to risk ceding that control or power while the baseball season is in full swing.
Another issue of the day is that of players’ health and safety. The running theme this season has been protecting defenseless players from violent helmet-to-helmet blows or devastating hits on the field. There have been dozens of instances where players have been concussed, some multiple times, due to vicious hits by defensive players. But the policing of such hits has invaded what are deemed legal hits as well. It is one thing to penalize a helmet-to-helmet hit because they can be seen clearly by officials and players can control how they attack their opponents. But when players are being fined and penalized for hitting opposing players legally yet devastatingly, that is where the real problem comes in. First off, I doubt anyone who watches or supports professional football would be opposed to keeping its players safe from injuries. But the game of American football has always and will always involve physical contact between players. Most times, this physical contact is dangerous because of the opposing needs of each player. That is the nature of the game. To try and alter the way the game is played requires something much deeper and intricate than imposing new rules and penalties on professional athletes. There would need to be a major change in the philosophy of how football is taught to kids in Pop Warner and high school. This seems almost impossible to fathom, but how else could a player know, in the heat of the moment, that his potential strike against a receiver in mid-field will be the cause of a penalty, fine and/or possible suspension? Football is a game derived from strategy and played with instincts. This is a difficult balance to reach given the desire for players’ safety and the skills of opposing players simply playing the game of football. There are less than 1700 active players in the NFL who get paid to do this for a living. They have a specialized skill and knowingly assume the physical risks associated with playing football. That is not to say they deserve to be injured or shouldn’t be protected. But there is a reason they are getting paid to put on the shoulder pads and helmets. They know the inherent risks that are associated with the game. They know the histories of older retired players and the condition their bodies are in as a result of a lifetime in the NFL. Imposing fines, throwing flags, and issuing suspensions is all well and good to penalize players who cross the line. But that is a very fine line and not one that can be viewed objectively. This is where the problem lies, and Commissioner Roger Goodell has thrown himself right into this fire. He has imposed multiple fines on players for violent hits during the course of this season, and some of them would not have been deemed illegal prior to this year. If the Commissioner is going to continue ti pursue these avenues of recourse, then we all need to accept that the game of football has changed forever.
Along with these issues, the topic of expanding the NFL’s regular season to 18 games has been discussed ad nauseum. It does make sense because the pre-season is a complete waste of time for both players and fans. The four weeks of pre-season games are typically used to learn more about back-up players. Fans are paying lots of money to sit through games played by players that no one has ever heard of. There is no real desire to win the games, so there is no real interest by the fans either. Shortening the pre-season to two ganes and adding two games to the regular season does make sense from a financial and pragmatic standpoint. However, the flip side is once again players’ healthy and safety. Those pre-season games are typically not played with all-out vigor and effort. Uusally injuries that occur in the pre-season are flukes or self-sustained. If players are now going to have two extra games that count, that is an additional two games they they are subjecting themselves to the physical and mental demands that go into an already lengthy season. They are two more opportunities to sustain a career-ending injury. They are two more weeks of full practice and training. It makes sense why some players are against it. But from a fans’ perspective it is great. It is two more games to care about. It is two more weeks of fantasy football action. It is two more weeks to spend with friends and family eating wings and watching football on Sunday. It is a general money-maker for the league and the whole football industry. But at what cost? Do we the fans really concern ourselves with how many concussions Aaron Rodgers or Austin Collie have sustained? We care if we are fans of the Packers or Colts, or if we have them on our fantasy team. But do we truly care about the individual person who has to live with these head injuries? The sad truth is probably not. We want our teams to win and we want to enjoy the act of watching professional football games. By giving us two more weeks of the regular season, the NFL will be satisfying its fan base but at the expense and risk of its players.
At the end of the day, the NFL is going to do what it feels is best. It is hard to argue with any of their decisions given the mammoth success the NFL has experienced over the last 20 years. While baseball is the National Pasttime, football has become America’s sport. The NFL has grown by leaps and bounds and there are no indications it will slow down. But this next level of growth (expanding to 18 teams) could see some real detrimental effects on the players who play the game. That is certainly a reason why Commissioner Goodell is so focused on players’ safety, so maybe he really does know better than everyone. It is just a little difficult to grasp the hypocrisy and irony when you really break it down. The NFL wants to protect its players by changing the way the game is played, yet they want to expose its players to injury even more by expanding the schedule. That is why it is called a dichotomy.
THE SUPREME COURT OF FANTASY JUDGMENT
The Landry’s, et al. v. George, et al.
ON PETITION FOR WRIT OF CERTIORARI FROM
THE LEAGUE OF EXTRAORDINARY GENTLEMEN
Decided December 1, 2010
Cite as 2 F.J. 51 (December 2010)
A fantasy football league called the League of Extraordinary Gentlemen (hereinafter referred to as “LOEG”) is comprised of ten (10) teams who compete against each other on a weekly basis during the National Football League (“NFL”) season using the statistics of professional players as a basis for accumulating points in head-to-head competition with opponents to determine which fantasy team won or lost. The LOEG is hosted on the CBSSports fantasy football platform. The league rules regarding the process and eligibility of making add/drops are delineated in the LOEG Constitution under Section 4 entitled “ADD/DROPS.” The following is the language of the pertinent rule within the LOEG Constitution:
4.1 Free agent pickups and add/drops are unlimited and first-come, first-served from the conclusion of the initial waiver process (immediately after the draft) until kickoff of the first game of the season. After kickoff of the first game, player adds and drops will be done through a waiver process. The initial waiver order will be the reverse of the initial draft order. Once an owner acquires a player from waivers, that owner goes to the bottom of the waiver order. Each week, the waivers process starts the day after the last game of the previous week (typically this is the Tuesday after Monday Night Football). All available players (including dropped players) remain on waivers for at least one day (typically this day is the Tuesday after MNF) to ensure everyone has an opportunity to see and claim a player they might have interest in acquiring. The waivers process then is executed after the one day review period (typically on Wednesday morning at about 2:00 AM). Players who have gone through the waivers process are considered Free Agents. Free Agent pickups are unlimited and first-come, first-served starting immediately after the waiver wire is processed. Claiming a Free Agent does not change the waiver wire order. Players who are dropped as part of the waiver process then go on waivers for one day, and so on. Adds/Drops will be allowed throughout the playoffs until the final playoff game is started. Once a team is eliminated from the playoffs, that team may not add or drop any players for the remainder of the season. Any timed adds / drops that appear to be collusion between teams are subject to review and potential reversal by the commissioner.
Last week, The Landry’s, who were already mathematically eliminated from playoff contention, successfully added Brian Westbrook (RB-SF) onto his roster due to his favorable position on the waiver order. Concurrently, both the Jetnuts and George put in claims for Westbrook and were notified that they were denied their request due to Westbrook being acquired by The Landry’s.
George challenged The Landry’s acquisition of Westbrook to the LOEG Commissioner. The Commissioner subsequently ruled that Westbrook would be removed from The Landry’s roster and awarded to the Jetnuts who had a higher waiver position than George (and both teams were still mathematically alive for a playoff berth).
Two weeks ago, Evil Empire (the team for the owner who also happens to be the league Commissioner) acquired Shaun Hill (QB-DET) when he was already eliminated from playoff contention. Hill was not used in Evil Empire’s starting lineup and had no bearing on the result of the game between Evil Empire and The Landry’s, which was ultimately won by Evil Empire. Due to the Commissioner’s ruling on the Brian Westbrook issue, The Landry’s now protest their game against Evil Empire where they allege Evil Empire’s lineup was illegal due to his improper acquisition of Shaun Hill. The rules for challenging or protesting the scoring and results of games within the league are delineated under Section 3 entitled “REGULAR SEASON.” The following is the language of the pertinent rule in the LOEG Constitution:
3.7 Any scoring challenges may be made only until noon on the Wednesday following the game in question.
The Commissioner provided the following response to The Landry’s protest and request for reversal of their prior matchup:
“It’s true that there is a rule prohibiting teams out of playoff contention from performing add/drops. I picked up Shaun Hill as a bench player quarterback on Wednesday November 25th, not realizing that we had that rule in our bylaws. If they want me to drop Shaun Hill, I can do that. Since the move did not affect the outcome of a game, nor was it protested prior to the weekend games, I see no reason to issue my team a loss for this infraction.”
Both The Landry’s and Iceman have made arguments before the Court in opposition to Rule 4.1, specifically the provision that prohibits teams eliminated from playoff contention from making add/drops. The Landry’s argue that teams should be able to still compete for individual records and milestones, including highest point totals and largest margins of victory in the season. Iceman argues that the concept of playing spoiler applies in fantasy sports as well where a team eliminated from playoff contention can still “play its Super Bowl” against a team still competing for the playoffs and have an effect on their ultimate outcome.
There are multiple claims made involving several LOEG teams. The following represents a breakdown of the existing claims in this complaint:
- George challenges The Landry’s acquisition of Brian Westbrook due to the fact that The Landry’s have been eliminated from playoff contention.
- The Landry’s challenge the application of Rule 4.1 where his acquisition of Brian Westbrook was revoked due to the fact he was eliminated from playoff contention.
- George challenges the Commissioner’s decision to award Westbrook to the Jetnuts due to the Jetnuts having a more favorable position in the waiver order.
- The Landry’s protest their previous game against Evil Empire because Empire had improperly added Shaun Hill to his roster when technically he should not have been able to do so because he was already eliminated from playoff contention.
The Commissioner agreed with George’s challenge that Westbrook should not have been acquired by the The Landry’s and ruled that he belonged on the Jetnuts due to their more favorable waiver wire position. The Commissioner also rejected The Landry’s request for a reversal of their previous game due to Shaun Hill being illegally placed on Evil Empire’s lineup.
(1) Was the LOEG Commissioner’s application of Rule 4.1 correct and appropriate?
(2) Should there be any exceptions to Rule 4.1 which would allow teams eliminated from playoff contention to acquire players via add/drop?
(3) Should The Landry’s request for reversal of the results of his game against Evil Empire be granted?
The Supreme Court of Fantasy Judgment is a strong advocate for having written Constitutions that govern fantasy sports leagues. There are a myriad of reasons why the Court believes having a Constitution in place is the best way to run and maintain a fantasy league. One of the primary reasons behind this rationale is that all league members are aware of the rules and guidelines in place that govern the administration and function of the fantasy league. When a league Commissioner writes out the rules and distributes them to the league, it shifts the burden onto the league members to read, understand, and adhere to the rules that are delineated. If a league member has an issue, question or challenge to one of the rules in the Constitution, they are welcome to raise this with the Commissioner before signing it or agreeing to its codification.
Here, the LOEG Constitution clearly states the rule regarding the process and eligibility for acquiring players through the add/drop waiver wire. Within the confines of Rule 4.1, teams that are eliminated from playoff contention are not allowed to acquire players through the add/drop process. Not only does the Constitution explicitly state this, but the legislative intent and purpose behind the rule is logical, reasonable, and promotes the maintenance of the league’s integrity by preventing potential collusion. It is conceivable for a team with no chance of securing a playoff berth to sell off or trade his best players to a contending team with which he tries to strike a deal for a sharing of the monetary prize. This rule specifically prevents that from happening by not even letting the teams susceptible to such temptation make roster moves.
The Commissioner made the correct decision to remove Brian Westbrook from The Landry’s roster after he was notified about the transaction. Once The Landry’s officially was eliminated from playoff contention, they were not permitted to make any more add/drops as per the language contained in Rule 4.1 of the LOEG Constitution. The Court surmises that there is no such capability on CBSSports.com to include a setting or rule that would prevent eliminated teams from making transactions. If there is such capability, the Commissioner should certainly utilize it. If there is not, then it is up to the Commissioner and all other teams to be diligent and police such activity – as was done here.
Once the Commissioner realized that Westbrook needed to be removed from The Landry’s roster, he had to determine which eligible team had the rights to acquire him. George notified the Commissioner that his waiver request was denied in favor of The Landry’s, but he was not the only one. According to the testimony of the Commissioner, the Jetnuts had also made a claim for Westbrook and possessed a more favorable waiver wire position that George. As a result, the Commissioner correctly awarded Westbrook to the Jetnuts based on their higher position in the waiver order. Had Westbrook not been added by The Landry’s, he would have correctly gone to the Jetnuts anyway based on the waiver order.
The Court has received arguments and testimony from both The Landry’s and Iceman concerning the applicability of Rule 4.1. The Landry’s argues that teams eliminated from playoff contention are still competing and have individual goals they are striving for – as a result, they should be allowed to add players and continue to try and better their team. Iceman argues that teams eliminated from playoff contention will get a chance to play spoiler, which becomes the equivalent of their Super Bowl because it would mean something to them to have a tangible effect on the overall playoff picture. These points are well-received and the Court appreciates their dedication and attitude. However, Rule 4.1 clearly denies eliminated teams the ability to add players. This rule and the entire LOEG Constitution have been in existence and made available to the entire league since before the season began. This issue should have been addressed or raised at the time the rules and Constitution were first made available to the league. While The Landry’s and Iceman make valid arguments, they should be made during the upcoming off-season when the rules can/should be changed. There is no valid reason to change the rules during the middle of the season outside of extreme and unforeseeable consequences. See John Doe v. Fantasy Football League Commissioner, 2 F.J. 21, 22 (October 2010). The Court would only support changing or adding to the rules in mid-season if it is the only option to prevent a complete mutiny or meltdown of a fantasy league. This does not appear to be the case. Part of the Commissioner’s responsibilities include recognizing when the time is right for an intervention of his power and authority. See George v. LOEG Commissioner, 2 F.J. 42, 43 (October 2010). The Commissioner should consider changing or amending Rule 4.1 if there is enough support within the league for such a change, and if the Commissioner believes it will be in the best interest of the league.
The Landry’s protest of their game against Evil Empire due to Empire’s previous acquisition of Shaun Hill is not valid. Rule 3.7 of the LOEG Constitution clearly states that challenges to the scoring of games must be made by the following Wednesday at noon after that game in question. Here, The Landry’s is clearly late in their submission of a protest as it was well beyond the window of opportunity to raise such a challenge. However, even if the challenge had been made timely, their protest would be denied because Empire’s technically deficient acquisition of Shaun Hill would not have had an effect on the outcome of their game because he was not in the starting lineup. Proper recourse could have been taken to remove Hill from Empire’s roster, and this still would not have had an effect on the outcome of the game.
The Commissioner’s decisions to remove Brian Westbrook from The Landry’s roster and award him to the Jetnuts are affirmed. The requests made by The Landry’s and Iceman in opposition to Rule 4.1’s prohibition of teams eliminated from playoff contention making add/drops are denied. The Landry’s protest and request for a reversal of the results of his game against Evil Empire is denied. The Court has considered all the evidence presented, but the overall consensus of the entire bench is that there are rules and guidelines delineated in the LOEG Constitution which clearly govern this particular activity within the league. The fact that the Commissioner acted within the confines of the Constitution and applied the rules as codified gives rise to the Court’s decisions, which are made in the best interests of the league.
IT IS SO ORDERED.
` THE SUPREME COURT OF FANTASY JUDGMENT
John Doe v. Commissioner
ON PETITION FOR WRIT OF CERTIORARI FROM
AN ANONYMOUS FANTASY FOOTBALL LEAGUE
Decided November 24, 2010
Cite as 2 F.J. 49 (November 2010)
The plaintiff has submitted this case without providing any information about his league. The record is devoid of the following details: type of fantasy football league (i.e., keeper or non-keeper, salary/auction, etc.), platform where the league is hosted (CBS, Yahoo, ESPN), number of teams, roster requirements, point scoring system, records and rosters of the teams involved in the proposed trade, league rules or Constitution, league schedule, and trade approval and/or appellate process.
The plaintiff was offered Vincent Jackson (WR-SD) in a trade in exchange for Eli Manning (QB-NYG). Plaintiff accepted the trade which was then reviewed by the league’s Commissioner. According to the plaintiff, the Commissioner approved the trade on the basis that the trade was “fair for both parties.”
At an undisclosed time after the trade was approved, the plaintiff discovered that this trade had been cancelled. He was not contacted at any time by the Commissioner or the team he traded with. No reason was provided by anyone through any means of communication to explain what happened with the trade and why it was cancelled.
The plaintiff now seeks the Supreme Court of Fantasy Judgment’s opinion on whether the subject trade should be put through and its cancellation overturned. There have not been any additional submissions, evidence or testimony provided by anyone else in this fantasy football league.
Assuming the Commissioner has sole authority to approve or reject trades, he did not provide any notice either verbally or in writing that he was overturning his own decision to approve the trade. The plaintiff did not provide the Court with the league’s rules on trading, so the Court will have no choice but to make reasonable and prudent assumptions based on standard and customary fantasy football practices.
(1) Should the trade between the plaintiff and unnamed league member where the plaintiff acquired Vincent Jackson for Eli Manning be upheld and enforced?
The Supreme Court of Fantasy Judgment typically favors individual fantasy sports participants and teams’ ability to make moves, transactions, and trades. The standard of review has been that people pay money to purchase a team in a league, draft their team, and manage it accordingly. Whether success is bred from that individual’s decision-making is purely left to some skill, luck, dedication, and savviness. See Smittydogs v. Moneyball, 1 F.J. 32, 33 (June 2010).
Because the record is unclear, the Court must assume that the plaintiff and his fellow league members have paid money to participate in this fantasy football league. Therefore, the principles cited above will apply here where people are entitled to manage their teams how they see fit within the rules of the league and free from collusion.
The Court must always consider is whether there is any collusion or under-the-table dealings going on between teams. Since the Court has not been presented with any evidence or accusations of collusion, the Court concludes that there is no collusion between the plaintiff and any other league member.
At first glance, the trade of Eli Manning in exchange for Vincent Jackson looks fair and reasonable. Because the Court was not provided with the rosters of these two teams, it is impossible to determine whether the needs of both teams were met or whether each team was dealing from an area of strength and depth. The Court must look at the two players involved and what their fair market value is both before the trade and their projected benefits after the trade. Eli Manning is having a season with extreme highs and lows. He is on pace to shatter his previous personal records for yards and touchdown passes, but he is also on pace to throw more than 20 interceptions. Granted, several were not his fault as the Giants’ wide receivers were failing to catch passes and instead tipped balls to their opponents. But Eli Manning has never been known for his offensive prowess, especially compared to his brother. With the loss of standout wide receivers Steve Smith and Hakeem Nicks for the next several weeks, Manning’s value has decreased. On the flip side, Vincent Jackson is scheduled to make his 2010 debut with the Chargers on Sunday night against the Colts on national television. Having several successful years under his belt already, Jackson joins the team as the #1 receiver for one of the most prolific passing quarterbacks of this era in Philip Rivers. Jackson should immediately becomes Rivers’ primary target and the recipient of lots of yardage on Rivers’ way to reaching 5,000 yards by the end of the year.
Given that the trade was fair, the Commissioner approved the deal – which was the right decision. Then, for reasons unknown to this Court, the trade was cancelled, much to the chagrin of the plaintiff. Unless a trade is either offered or accepted under the influence of drugs or alcohol, coercion, violence, or threats thereof, people cannot undo their trades just because they may have second thoughts about it. A deal is a deal, especially with the Commissioner’s approval.
Based on the miniscule amount of evidence presented and the facts of this case, the Court holds that the subject trade should be allowed and enforced. The Commissioner’s decision to cancel the trade (or whoever else may be responsible) should be overturned.
IT IS SO ORDERED.