Brady et al v. National Football League et al

Filing 114

REPLY Defendants' Response to Plaintiffs' Bond Request re 110 Memorandum in Opposition to Motion, filed by Arizona Cardinals, Inc., Atlanta Falcons Football Club LLC, Baltimore Ravens Limited Partnership, Buccaneers Limited Partnership, Buffalo Bills, Inc., Chicago Bears Football Club, Inc., Cinncinnati Bengals, Inc., Cleveland Browns LLC, Dallas Cowboys Football Club, Ltd., Denver Broncos Football Club, Detroit Lions, Inc., Football Northwest LLC, Green Bay Packers, Inc., Houston NFL Holdings LP, Indianapolis Colts, Inc., Jacksonville Jaguars Ltd., Kansas City Chiefs Football Club, Inc., Miami Dolphins, Ltd., Minnesota Vikings Football Club LLC, National Football League, New England Patriots, LP, New Orleans Louisiana Saints, LLC, New York Football Giants, Inc., New York Jets Football Club, Inc., Oakland Raiders LP, Panthers Football LLC, Philadelphia Eagles Football Club, Inc., Pittsburgh Steelers Sports, Inc., Rams Football Co, LLC, The, San Diego Chargers Football Co., San Francisco Forty Niners Ltd., Tennessee Football, Inc., Washington Football Inc. (Attachments: # 1 LR7.1 Word Count Compliance Certificate). (Connolly, Daniel) Modified text on 4/28/2011 (lmb).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
TOM BRADY, et al.,
Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE, et al.,
Defendants.

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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ BOND REQUEST
There is no basis for the Brady plaintiffs’ demand, reflected in their
opposition paper filed this morning (Dkt No. 110), for any bond—let alone a
$1 billion bond—as a condition of a stay pending appeal.
To begin, plaintiffs’ demand for a bond is inconsistent with the
argument that they made in support of their request for an injunction that
the harm they suffer from the lockout is not compensable in monetary
damages.
Second, plaintiffs ask for a “supersedeas bond.” (Opp. 21, 22.) A
supersedeas bond provides a defendant against whom a monetary judgment
has been awarded a stay of enforcement of that judgment. See Fed. R. Civ. P.
62(d). The purpose of such a bond is “to secure the judgment throughout the

appeal process against the possibility of the judgment debtor’s insolvency.”

Grubb v. FDIC, 833 F.2d 222, 226 (10th Cir. 1988). 1
Of course, there is no monetary judgment here that needs securing.
Moreover, there has been and could be no credible showing of a risk of
insolvency. Even if the plaintiffs’ demands for a bond had merit, the NFL’s
“solvency and clear ability to satisfy [any such] judgment if affirmed on
appeal militate in favor of waiving” any bond requirement. Exxon Corp. v.

Esso Workers’ Union, Inc., 963 F. Supp. 58, 60 (D. Mass. 1997).
Here, the League’s “ability to pay the judgment is so plain that the cost
of the bond would be a waste of money.” Olympia Equip. Leasing Co. v. W.

Union Tele. Co., 786 F.2d 794, 796 (7th Cir. 1986). Indeed, the plaintiffs do
The Brady plaintiffs cite two cases in support of their request for a bond.
Neither is on point.
1

In State Farm Mutual Automobile Insurance Co. v. American Rehab &
Physical Therapy, Inc., the defendant was the subject of a default judgment
entered four years earlier, and had taken extraordinary steps to evade the
plaintiffs’ attempts to enforce that judgment. See 2009 WL 2096274, at *1-5
(E.D. Pa. 2009). The District Court entered an injunction requiring the
defendant to make installment payments on the money judgment he owed
the plaintiff, and conditioned a stay of that injunction on the posting of a
bond in an amount sufficient to cover those payments.
In Garcia v. Direct Financial Services, LLC, the bankruptcy court
conditioned a debtor’s appeal of an order lifting the bankruptcy stay as to a
particular creditor on the amount of debt and costs to which the creditor was
entitled. See 436 B.R. 825, 830 (Bankr. W.D. Va. 2010). In doing so, the court
applied Federal Rule of Bankruptcy Procedure 8005, not the Rules of Civil
Procedure.

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not suggest that they have the slightest doubt of the League’s ability to pay
the players, or that this Court should have any doubt.
The relevant rule here is not Rule 62(d) covering a supersedeas bond,
but rather Rule 62(c), which provides that “the court may suspend, modify,
restore or grant an injunction on terms for bond or other terms that secure

the opposing party’s rights.” Fed. R. Civ. P. 62(c) (emphasis added). 2
There is no need to require the NFL to post a bond to secure the
plaintiffs’ rights while this preliminary injunction is on appeal. The NFL
submits that its commitment to pursue expedited appellate review in the
Eighth Circuit more than adequately secures the rights of the Brady
plaintiffs. There is no reason to think that the Court of Appeals will not
adjudicate this appeal in an expedited manner. Indeed, Section 10 of the
Norris-LaGuardia Act, 29 U.S.C. § 110, requires that the appeal to be
determined “expeditiously.” And if for some reason it did not, plaintiffs could
seek relief from a stay either in this Court or in the Eighth Circuit.

The premiums paid for such a bond would be taxable as costs in the event of
a successful appeal. See Fed. R. App. P. 39(e)(3); see also 29 U.S.C. § 107(e)
(providing that a party enjoined in a case “involving or growing out of a labor
dispute” found to have been wrongfully enjoined should be recompensed for
“any loss, expense, or damage caused … including all reasonable costs
(together with a reasonable attorney’s fee)”).
2

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CONCLUSION
Accordingly, the NFL respectfully requests that the Court grant a stay,
suspending the injunction pending appeal under Rule 62(c), without
requiring a bond, conditioned on the NFL promptly pursuing expedited
appellate review in the Eighth Circuit.
Respectfully submitted,
David Boies (pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, NY 10504
[phone]
[phone] (fax)

William A. Isaacson (pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
5301 Wisconsin Ave., NW
Washington, DC 20015
[phone]
[phone] (fax)

s/Daniel J. Connolly
Daniel J. Connolly #197247
Aaron D. Van Oort #315539
FAEGRE & BENSON LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-3901
[phone]
[phone] (fax)
Gregg H. Levy (pro hac vice)
Benjamin C. Block (pro hac vice)
COVINGTON & BURLING LLP
1201 Pennsylvania Ave., NW
Washington, DC 20004-2401
[phone]
[phone] (fax)

Counsel for the NFL and NFL Clubs
April 27, 2011

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