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NFL Lockout: Playing for Home Field Advantage

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NFL teams relish the opportunity to play a playoff game at home. When the entire season is on the line, the familiarity of the stadium, the chance to sleep at home, and the blistering bellow of the 12th man, give the home team a clear advantage. We saw this season in Seattle that a home field can offer even the most doubted underdogs the upper hand.

And although the legal world is, for the most part, unlike the world of football, the specific legal arena where issues are decided can have an immense influence on the outcome of a case. The law is blind, but nine judges can interpret the law in nine different ways. Choosing where to file a lawsuit, and which judge will preside, is a strategic choice that must be considered.


Since the Players Association and Owners settled their legal battle in 1993, complaints under the current CBA have landed in Judge David Doty's courtroom. The NFL Owners have claimed that the Players have home field advantage in Doty's courtroom because of strong bias Doty holds against NFL Owners. It's not surprising then, that Doty's jurisdiction over the CBA has become a significant bargaining chip in the current negotiations.


The NFL Owners and NFLPA have agreed to a seven day extension of the CBA, but the three core issues of debate have existed since last summer. The Owners are attempting to add two games to the NFL season, a rookie wage scale, and take another $1 billion off the top from revenue they share with the Players.


But a fourth issue has emerged at the bargaining table. As Chris Mortensen first reported Friday on ESPN's Mike & Mike in the Morning:


"The one thing the Owners want, is a new CBA without Judge Doty's jurisdiction. And that's probably going to be one of the deal breakers or deal makers on this one."


And while the original three core issues may have been controversial, they only deal with facets of a CBA. Doty's jurisdiction is an entirely different political football, one that determines who has power in determining the facets of future agreements, one that determines who retains legal home field advantage.


The NFL's Most Important Referee

So who is this Doty character, and why is a judge from Minnesota involved in the first place?


The Honorable David S. Doty is an ex-Marine who was appointed to the U.S. District Court for the District of Minnesota by President Ronald Reagan in 1987. In 1988, he was randomly assigned a NFL case that was filed by the Players in the Minnesota courts. Doty would preside over Powell v. NFL and the resulting labor settlement. The landmark White settlement the NFL and NFLPA agreed to in 1993 included provisions that the settlement would be enforced by a Special Master, and appeals of the Special Master's decision would go before Judge Doty's court.


Since 1993, Judge Doty has been at the center of most legal battles between the NFLPA and the NFL. In 2009, Judge Doty prevented the Atlanta Falcons from recouping $16.22 million dollars in signing bonuses that were paid to Michael Vick after the player plead guilty to federal dog fighting charges. More recently, Doty ruled for the NFLPA that the TV contracts the NFL signed violated the terms of the CBA.


The NFL Owners have long claimed that Doty's judicial record and his public comments, show that Doty has a strong bias against them. In 2005, the Owners sent a letter asking Doty to remove himself from the proceedings based upon comments he made in private discussions with the NFL. It was the comments he made to reporters, however, that generated the most ire from the league.


After receiving a letter from the NFL asking to recuse himself, Doty did an interview with The (Colorado Springs) Gazette, where he said:

"It was just an off-handed comment, but a few days later I received a letter from the owners' group requesting, based on what I said, that I remove myself from matters involving the NFL and the players' union. I laughed at the letter and wrote them a letter kindly denying their request. They would have loved for me to be out of the way."


In 2008, he made similar comments in an interview with the Sports Business Journal:

"[NFL owners] pretend they're getting beaten around. Well, they did, initially, but they had a position that was not legally sound … I think if you ask [Former Commissioner] Tagliabue, he would say, 'The whole thing has come out our way.' Because, even though they complain about it … all they've done is make tons of money."

Most legal observers have held that Doty's ruling in the Michael Vick case and the TV insurance case were valid interpretations of the law. Despite this, the Owners still perceive that Doty has bias. In 2009, they filed an unsuccessful appeal to have Doty removed for the comments he made in these two interviews. But there may be another reason that the NFL wants Doty removed from the CBA.


The Foiled Gameplan:


If the NFL was trying to hide the fact that they planned to lockout players in the 2011 season, they did a poor job. When the NFL opted out of the last two years of the CBA in 2008, Gene Upshaw, then the Executive Director of the NFLPA, saw what was coming.


He told ESPN in 2008:

"That's where we're headed. They're going to try to lock us out [in 2011]."


I'm not going to take a stance on whether a lockout is justified or unjustified. The sustainability of a billion dollar business and the demands of the NFLPA are way beyond my pay grade. But like the New England Patriots of 2007, the NFL had built a winning gameplan that would lead to a perfect CBA for the Owners.


After opting out of the CBA, the NFL began to renegotiate the TV contracts it held with Dish TV, CBS, FOX, NBC, and ESPN. The NFL sacrificed getting the most money for their TV contracts in exchange that the TV Broadcasters would continue to pay the NFL in case of a lockout. Most of the money would have to be repaid after the NFL resumed play, but the money totaled over $4 billion dollars. Essentially, the Owners created a system where they would still get paid during a lockout, and be able to outlast the Players in a protracted CBA brawl. Therefore, with a lockout or even just the threat of a lockout, the NFL held all the leverage. The Owners had no need for a season in 2011, but the players could be desperate for a new deal. With no income or health insurance over an entire season, players might have had to capitulate to most of the Owners demands.


The NFLPA filed a complaint that in negotiating the TV contracts in such a way, the Owners violated their duty to maximize revenue for the Owners and Players. The case was first heard before Special Master Stephen Burbank. While he noted that the NFL had a duty to negotiate "consistent with sound business judgment," he ruled against the NFLPA because "it would be absurd and commercially unreasonable" for the NFL to be accountable to the NFLPA's own version of sound business judgment.


The NFLPA appealed Burbank's decision to Judge Doty, and like Eli Manning's late comeback in Super Bowl XLII that squashed the Patriots' perfect season, Judge Doty's ruling would foil the NFL's perfect gameplan.


Doty ruled five days ago, that Burbank had erred in his interpretation. The settlement agreement between the NFL and NFLPA forces the Owners to consider the Player's interests in business deals.


In his ruling, Doty would write:

"'Consistent with sound business judgment' allows the NFL to consider its long-term interests provided it does so while acting in good faith and using best efforts to maximize total revenues for each SSA playing season. . .Here, the NFL renegotiated the broadcast contracts to benefit its exclusive interest at the expense of, and contrary to, the joint interests of the NFL and the Players. This conduct constitutes 'a design ... to seek an unconscionable advantage' and is inconsistent with good faith."


Judge Doty's ruling has locked out the over $4 billion dollars the NFL would have received from TV Broadcasters in a locked out 2011 season. The NFL may be able to survive a lockout with reserve funds, but many of the NFL's loans require that the NFL meets "average media revenues." This means if the NFL's revenue from TV contracts falls below a specific amount, the NFL would default on these loans even if it has cash on hand to pay them.


Doty's ruling was a gamechanger, one that foiled the NFL's gameplan for leverage and established a field where both the NFL and Players are behooved to sign a new deal for a 2011 season.


Doing it without Doty


The different interpretations by Burbank and Doty should highlight the importance of how individuals and their different interpretations of the law can have a massive outcome on the ruling. The fact that NFL Owners would like to remove Doty's courtroom from a future CBA is not surprising, because of his perceived bias, and because his ruling prevented the gameplan the NFL has devised to gain leverage.


Removing Doty from the CBA may be the key issue in preventing a lockout in 2011, but the question must be asked if removing him would make a lockout in 2013, 2015, or beyond inevitable. The NFL may feel that they could fare better in a different courtroom, in front of a different judge. Are the NFL and NFLPA reaching serious progress on a new long-term CBA, or is the fact that Doty is a major bargaining chip a sign that the NFL is simply playing for home field advantage? Are they starting the gameplan for a post-settlement era, where they can find a more friendly courtroom to seek leverage to accomplish what they want in future years?


In five days, we will hopefully have answers to those questions.


But for now, we don't even know if the NFLPA would accept removing Doty as their arbiter. In 2005, Gene Upshaw made it clear to The (Colorado Springs) Gazette that Doty had to be part of the agreements going forward:

"We will never go into an extension that does not include Doty retaining jurisdiction -- the NFL knows that, they know where my head is at. We're going through extension talks right now, and as soon as we get (the agreement) done, we'll be in his courtroom for him to approve it."


For the Denver Broncos, if there must be a lockout, delaying the lockout for a few years may be beneficial. A lockout will hurt every team, but with a new coaching staff and a quarterback controversy, a 2011 lockout would probably hurt the Broncos more than most teams.


But for the long term health of the game of football, it's unclear if a new CBA would rectify the long standing disputes between the Players and the Owners. If a new deal significantly changes the power structure of future negotiations, the game of football could also change significantly. Fixtures of the NFL, like the draft, free agency, and league parity could all be impacted. As fans of the game, we may be lost in the wilderness, unable to tell if a new agreement between the NFL and the NFLPA will lead us out of the forest, or deeper into the woods.