Brady et al v. National Football League et al

Filing 131

DOCUMENT FILED IN ERROR-WILL REFILE-MEMORANDUM in Opposition re 127 MOTION for Extension of Time to File Answer to First Amended Class Action Complaint Brady Plaintiffs' Memorandum in Opposition to Defendants' Motion to Extend the Time to Respond to First Amended Class Action Complaint filed by Tom Brady, Drew Brees, Vincent Jackson, Ben Leber, Logan Mankins, Peyton Manning, Von Miller, Brian Robison, Osi Umenyiora, Mike Vrabel. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Berens, Barbara) Modified on 5/20/2011 (akl).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -:
Tom Brady, Drew Brees, Vincent Jackson, Ben :
Leber, Logan Mankins, Peyton Manning, Von :
:
Miller, Brian Robison, Osi Umenyiora, and
Mike Vrabel, individually, and on behalf of all :
:
others similarly situated,
:
Plaintiffs,
:
:
vs.
:
NATIONAL FOOTBALL LEAGUE, et al.,
:
:
Defendants.
:

No. 11-cv-00639-SRN-JJG

BRADY PLAINTIFFS’
MEMORANDUM IN
OPPOSITION TO
DEFENDANTS’ MOTION TO
EXTEND THE TIME TO
RESPOND TO FIRST AMENDED
CLASS ACTION COMPLAINT

--------------------------------INTRODUCTION
The Brady Plaintiffs, nine professional football players and one newly drafted
professional football player, oppose the motion of the NFL Defendants to obtain a third
extension of the time in which to respond to the Brady action. On March 11, 2011, the
Brady Plaintiffs filed their Complaint. (Docket No. 1). On March 12, 2011, the NFL
Defendants locked all of the players out.1
The Brady Plaintiffs have already agreed to two extensions of time totaling fiftytwo days (one of twenty-six days, i.e., until April 27, 2011, and a second of another
twenty-six days, i.e., until May 23, 2011), for the NFL Defendants to answer or otherwise
respond to the Brady action. The Brady Plaintiffs agreed to these two extensions during
1

A “lockout” in antitrust terms, the subject matter of this case, is shorthand for the NFL
Defendants’ concerted refusal to deal with the players.

the pendency of their motion for preliminary injunction relief, but that motion has now
been granted.
The NFL Defendants now move for a third extension of time (of an additional
forty-four days, i.e., until July 6, 2011), in which to answer or otherwise respond, to the
Brady Plaintiffs’ First Amended Complaint (Docket No. 119), which does not differ
materially from the initial Brady Complaint. Compare Docket No. 1 with Docket No.
119.
The NFL Defendants offer various reasons in support of their motion, all of which
fail to justify the grant of yet a third extension. First, the NFL Defendants argue that they
should not be required to answer or otherwise respond to the Brady action until after the
Eighth Circuit rules on their appeal of Judge Nelson’s grant of a preliminary injunction
barring the lockout. See Defs.’ Mem. in Supp. of Mot. to Extend Time at 4 (hereinafter
“Defs.’ Mem.”). The pendency of the appeal is simply a red herring, not justifying relief.
But this case will go forward on the merits of the Brady Plaintiffs’ other claims
whether or not Judge Nelson’s preliminary injunction of the lockout is upheld or
reversed, and thus there is no reason to grant yet another extension, thereby prolonging
the bar on discovery.
This is particularly true where Judge Nelson has already found that the Brady
plaintiffs are suffering irreparable harm every day that the NFL Defendants’ lockout
continues, a finding which guts the NFL Defendants’ second justification for yet another
extension (i.e., that an additional extension will not prejudice the Brady Plaintiffs, see
id.).
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The NFL Defendants’ third justification for another extension, that it will divert
resources from preparing for the Eighth Circuit hearing, see id., is incredible where the
NFL Defendants have already had nine attorneys from four law firms make an
appearance in this matter (here and/or in the Eighth Circuit) and they are unable to
credibly claim that they do not have a battalion of additional attorneys at their disposal.
The Eller Plaintiffs’ agreement to this extension is also irrelevant where Judge
Nelson found that it is the Brady Plaintiffs who are suffering irreparable daily harm from
the lockout, and not the Eller Plaintiffs or other retired players (who are not subject to the
lockout).
The Brady Plaintiffs also intend to move in the near future for summary judgment
to challenge, inter alia, the NFL Defendants’ illegal lockout. If discovery continues to be
barred, a necessary consequence of the requested extension, it is predictable that the NFL
Defendants would invoke Rule 56(f) in response to a motion for summary judgment, that
is, another delay would ensue. The Brady Plaintiffs do not want to be faced with a Rule
56(f) response to their motion, particularly where the holdup results from the NFL
Defendants’ delaying tactics.
Most importantly, the NFL Defendants have locked out the players intending to
bring the players to their knees and force them to accept a deal that is unjust. Brady v.
NFL, et al., Order Granting Injunction (hereinafter “Inj. Order”) at 13 (D. Minn. Apr. 25,
2011) (Docket No. 99) (noting that the League had warned players that a lockout would
be imposed to force a deal more favorable to the NFL’s interests) (citation omitted). The
NFL Defendants’ motion for an extension is thus much more than a routine request for
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more time in which to respond to a complaint, it is yet another deliberate step in their
campaign to crush the players by extending the lockout for as long as they can. The
Court should not put its imprimatur on this improper conduct, particularly where Judge
Nelson has already found that the “the NFL does ‘not contest that their ‘lockout’ is a per
se unlawful group boycott and price-fixing agreement in violation of antitrust law.’” Id.
at 83 (quoting Brady Plaintiffs’ Mem. at 1) (Docket No. 41)).
Accordingly, the Brady Plaintiffs oppose the motion for a third extension and ask
this Court to deny the motion and permit this action, and discovery in this action, to
proceed at this point in time.
BACKGROUND
On March 11, 2011, the Brady Plaintiffs filed their Complaint in anticipation of
the NFL Defendants’ imposition of a lockout, which was imposed the next day, on March
12, 2011. On March 11, 2011, the Brady Plaintiffs also moved for a preliminary
injunction to lift the lockout. (Docket No. 2).
The NFL Defendants’ answer or other responsive pleading was due on April 1,
2011. They first asked for a twenty-six day extension (i.e., until April 27, 2011), in
which to respond to the Brady Complaint. The Brady Plaintiffs agreed to that twenty-six
day extension via stipulation dated March 25, 2011 (Docket No. 38). This Court granted
that extension until April 27, 2011 by Order dated March 28, 2011 (Docket No. 40).
The NFL Defendants then requested a second extension (of another twenty-six
days, or until May 23, 2011) to respond to the Brady action. The Brady Plaintiffs agreed
to that second extension, via stipulation dated April 22, 2011. (Docket No. 97). This
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Court granted the second extension until May 23, 2011, via Order dated April 22, 2011.
(Docket No. 98).
On April 6, 2011, Judge Nelson conducted a hearing on the Brady and Eller
Plaintiffs’ respective motions for injunctive relief to bar the NFL Defendants’ lockout.
On April 25, 2011, Judge Nelson issued an 89-page opinion granting the Brady Plaintiffs’
motion for preliminary injunction and denying the Eller Plaintiffs’ motion as moot. Inj.
Order at 89 (Docket No. 99).
In granting the Brady Plaintiffs’ motion for an injunction, Judge Nelson expressly
found that the “Brady Plaintiffs have shown not only that they likely would suffer
irreparable harm absent the preliminary injunction, but that they are in fact suffering such
harm now.” See Inj. Order at 71 (emphasis added); see also id. at 71-79 (setting forth in
detail the factual and legal bases for the Court’s finding of irreparable harm).2
Judge Nelson also concluded that every day that the lockout remains in effect
exacerbates the players’ irreparable harm. See, e.g., id. at 43, 74-79.
In addition, Judge Nelson rejected the NFL Defendants’ argument that they would
suffer irreparable harm if the district court were to enjoin the lockout because “the
League cannot predicate harm on the results of its illegal conduct.” Id. at 80.

2

The Eighth Circuit also noted that the Brady Plaintiffs raised valid points on the issue of
irreparable harm while observing that both sides “likely will suffer some degree of
irreparable harm no matter how this court resolves the motion for a stay pending appeal.”
Brady v. NFL, No. 11-1898, 2011 WL 1843832, at *7, ___ F.3d ___ (8th Cir. May 16,
2011).

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Judge Nelson also made clear several times that she was not ruling on the merits
of the underlying dispute but solely on whether to grant the Brady Plaintiffs’ motion for
injunctive relief: “the requested injunction at issue is confined solely to the NFL’s
lockout. This Court is not addressing the merits of the Players’ other antitrust claims –
those regarding Player restraints.” Id. at 80; see also id. at 68-69 (“the injunctive relief
requested here is limited and does not extend to the majority of the underlying claims ...
“[t]he Brady Plaintiffs only ask this Court to enjoin the League’s lockout”); id. at 80 (the
requested “injunction is not an adjudication that the NFL is liable for any antitrust
violation”); id. at 81 (the Court “is not presently addressing the merits of the antitrust
claims regarding Player restrictions and is not ruling on whether the non-statutory labor
exemption shields the League from such claims”).
Two days later, Judge Nelson reaffirmed the finding of the players’ irreparable
harm when denying the NFL Defendants’ request for a stay of the preliminary injunction,
concluding that “[a] stay would re-impose on the Players precisely the irreparable harm
that this Court found the NFL’s lockout to be likely inflicting on them since March 12.”
See Brady v. NFL, et al., Order Denying Stay at 13 (D. Minn. Apr. 27, 2011) (hereinafter
“Stay Order”) (Docket No. 117).
When denying the stay, Judge Nelson confirmed yet again that her Order granting
injunctive relief did not rule on the underlying merits of the case, but only whether to
enjoin the lockout. Id. at 7 (finding that “the NFL has shown no … injury resulting from
or in any way related to this Court’s Order, which, importantly, only enjoins the lockout”)
(emphasis in original).
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The NFL Defendants subsequently appealed Judge Nelson’s grant of a preliminary
injunction on several legal basis, including that the NLRB has primary jurisdiction, that
the Norris LaGuardia Act bars the requested injunctive relief, and the non-statutory labor
exemption’s alleged impact on the lockout. See Appellants’ Form A (Docket No. 100-1).
All of the issues on which the NFL Defendants’ appealed deal solely with the propriety
of Judge Nelson’s preliminary injunction precluding the lockout. Thus, even if all of
those issues are resolved in favor of the NFL Defendants, the reversal will not dispose of
this case, but only the challenged injunction of the lockout.
The NFL Defendants’ response to the Brady First Amended Complaint is
currently due on May 23, 2011. On May 19, 2011, the NFL Defendants moved for
another forty-four days, i.e., until July 6, 2011, to put in a response. The Court should
deny that motion for the reasons set forth herein.
ARGUMENT
I.

Standard
Pursuant to Federal Rule of Civil Procedure 6(b)(1)(A), the Court may, for good

cause, enlarge a period of time (for example, the time in which to answer a complaint),
“with or without motion or notice if the court acts, or if a request is made, before the
original time or its extension expires.” Although courts have discretion to grant such
enlargements, courts should nonetheless “be mindful that the rules are intended to force
parties and their attorneys to be diligent in prosecuting their causes of action.” Spears v.
City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996) (affirming district court’s denial of

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a motion to extend time to respond to summary judgment by one day where the court had
previously granted two extensions in which to respond) (quotation omitted).
Moreover, an extension under Rule 6(b)(1)(A) will not be granted if there is
evidence of bad faith by the movant or prejudice to the party opposing the requested
extension. See, e.g., Mickalis Pawn Shop, LLC v. Bloomberg, 465 F. Supp. 2d 543, 545
(D.S.C. 2006) (although noting that an extension of time “normally will be granted in the
absence of bad faith or prejudice to the adverse party,” denying motion to extend time to
respond to motion to remand where plaintiffs were already suffering irreparable harm to
their reputations) (quotations omitted).
II.

There Is No Good Cause for the Requested Extension.
Here, there is no good cause for a third extension. First, the Brady Plaintiffs have

already agreed to two extensions of time, thereby already affording the NFL Defendants
an additional fifty-two additional days in which to answer or otherwise respond.
Second, any additional delay should not be countenanced in light of Judge
Nelson’s finding that the Brady Plaintiffs and other players are suffering irreparable harm
every day. Inj. Op. at 71; see Mickalis Pawn Shop, 465 F. Supp. 2d at 546 (when denying
defendants’ motion for an extension, finding prejudice where plaintiffs’ alleged
irreparably injury would only continue if the extension were to be granted). Moreover, if
the Eighth Circuit were to reverse Judge Nelson’s grant of injunctive relief, such a
reversal would only provide additional impetus to push the rest of the case forward where
the Brady Plaintiffs’ treble damages claims arising from the lockout would continue to

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mount in the absence of an injunction. Cf. Inj. Op. at 72 (discussing the NFL
Defendants’ arguments regarding treble damages).
And the Eller Plaintiffs’ agreement to a third extension is irrelevant where Judge
Nelson found that it is the Brady Plaintiffs who are suffering irreparable daily harm from
the lockout, and not the Eller Plaintiffs or other retired players (who are not subject to the
lockout).
Third, the NFL Defendants rely solely on conclusory statements, such as the
Brady Plaintiffs “will not be prejudiced by this extension,” see Defs.’ Mem. at 4, to
support their motion. However, “[g]eneralizations and conclusory allegations will not
suffice” to demonstrate good cause for an extension. Burgess v. Bell, 555 F. Supp. 2d
855, 857 (E.D. Mich. 2008) (denying request to file late answer because movant failed to
demonstrate good cause) (citation omitted).
Fourth, the pendency of the NFL Defendants’ Eighth Circuit appeal fails to
provide good cause for the requested extension. The rest of this case will continue no
matter what the Eighth Circuit rules as to Judge Nelson’s preliminary injunction of the
lockout. See supra (discussing the issues on appeal, all of which focus on Judge Nelson’s
injunction of the lockout). As a result, there is no reason to delay discovery in the
remainder of this case awaiting the Eighth Circuit’s ruling. See Spears, 74 F.3d at 157
(rules are designed to encourage diligent prosecution of cases).
The NFL Defendants also argue that the Eighth Circuit’s ruling “will likely inform
[their] decision whether to file motions to dismiss (and, if so, on which grounds) or to
answer [the] Complaints.” See Defs.’ Mem. at 4. The appeal, however, addresses a very
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narrow order, and not the merits of the underlying Brady case, as Judge Nelson made
clear in her rulings. See supra. Moreover, courts, including appellate courts, are careful
to rule on the precise issues before them, and do not wander about, opining at will, as the
NFL Defendants’ argument suggests.
This argument of convenience also pales in comparison to the irreparable harm
that the Brady Plaintiffs and other players are suffering each day this case is delayed.
There is also no reason to believe that this Court may join the Brady and Eller pleadings
post-appeal as the NFL Defendants contend, see Defs.’ Mem. at 4, nor do the NFL
Defendants offer one. See generally Defs.’ Mem.
Finally, the NFL Defendants’ suggestion that there may be insufficient resources
to prepare for oral argument before the Eighth Circuit while proceeding in this matter, see
Defs.’ Mem at 4, is specious on its face, and hardly reflects good cause for an extension.
In fact, it would be astonishing if the NFL Defendants did not already have their
responsive pleading finished, or nearly finished, and ready to go if their motion is denied.
Based on the foregoing, the Court should find that there is no good cause for the
requested extension.
III.

There Is Evidence of Bad Faith.
There is evidence, on which this Court relied, to recently find that the NFL

Defendants acted in bad faith when preparing for the lockout. Just two months ago, in
White v. NFL, Judge Doty found that the NFL had failed to act in good faith towards the
players by engaging in conduct to gain “an unconscionable advantage” over the players
by “renegotiat [ing] broadcast contracts to ensure revenue for itself in the event of a
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lockout.” See White, Civil No. 4-92-906 (DSD), 2011 WL 706319, at *8, ___ F. Supp.
2d ___ (D. Minn. March 1, 2011) (finding that the NFL’s conduct “constitutes ‘a design
… to seek an unconscionable advantage’ [over players] and is inconsistent with good
faith”) (citing Ashokan Water Servs., Inc. v. New Start, LLC, 807 N.Y.S.2d 550, 554
(N.Y. Civ. Ct. 2006)). Judge Doty specifically found that the “NFL sought to renegotiate
[various] broadcast contracts to ensure revenue for itself in the event of a lockout.” Id.
In concluding that the NFL “did not act in good faith” towards the players, id. at *12 n.6,
Judge Doty further found that “[t]he facts underlying this proceeding illustrate another
abuse of [the NFL’s] market power wherein various broadcasters of NFL games were
‘convinced’ to grant lucrative work-stoppage payments to the NFL if the NFL decides to
institute a lockout.” Id.
The NFL Defendants’ request for an extension here is tainted by its bad faith
conduct against the players in preparation for the lockout, and strongly suggests that the
NFL Defendants are not seeking an extension here for good cause (which they fail to
demonstrate in any event) but instead to crush the players into submission by prolonging
the lockout.
CONCLUSION
Based on the foregoing, the Brady Plaintiffs ask the Court to deny the NFL
Defendants’ motion to extend the time to respond to the First Amended Complaint.

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Dated: May 20, 2011

Respectfully Submitted,

s/Barbara P. Berens
Barbara P. Berens, #209788
Justi Rae Miller, #387330
Berens & Miller, P.A.
3720 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
[phone]
[phone] (fax)
[e-mail]
[e-mail]
Timothy R. Thornton #109630
Briggs & Morgan, P.A.
2200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
[phone]
[phone] (fax)
[e-mail]
James W. Quinn
Bruce S. Meyer
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
[phone]
and
Jeffrey L. Kessler
David G. Feher
David L. Greenspan
Dewey & LeBoeuf LLP
1301 Avenue of the Americas
New York, NY 10019
[phone]
Attorneys for the Brady Plaintiffs

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