Brady et al v. National Football League et al

Filing 142

DOCUMENT FILED IN ERROR, CAPTION INCORRECT, WILL RE-FILE. MOTION to Alter/Amend/Supplement Pleadings Leave to Amend and Crossclaim by Obafemi Ayanbadejo, Ryan Collins, Carl Eller. (Attachments: # 1 Second Amended Complaint, # 2 Exhibit(s) Index, # 3 Exhibit(s) A, # 4 Exhibit(s) B, # 5 Exhibit(s) C, # 6 Exhibit(s) D, # 7 Exhibit(s) E, # 8 Exhibit(s) F, # 9 Exhibit(s) G, # 10 Exhibit(s) H, # 11 Exhibit(s) I, # 12 Exhibit(s) J, # 13 Exhibit(s) K, # 14 Exhibit(s) L, # 15 Exhibit(s) M, # 16 Exhibit(s) N, # 17 Exhibit(s) O, # 18 Exhibit(s) P, # 19 Exhibit(s) Q, # 20 Exhibit(s) R, # 21 Exhibit(s) S, # 22 Exhibit(s) T, # 23 Exhibit(s) U, # 24 Exhibit(s) V, # 25 Exhibit(s) W, # 26 Exhibit(s) X)(Stuckey, Shawn) Modified on 7/7/2011 (JME).

EXHIBIT A

Page 1
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))

Only the Westlaw citation is currently available.
United States District Court,
D. Minnesota.
Reggie WHITE, Michael Buck, Hardy Nickerson,
Vann McElroy and Dave Duerson, Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE; The Five
Smiths, Inc.; Buffalo Bills, Inc.; Chicago Bears
Football Club, Inc.; Cincinnati Bengals, Inc.; Cleveland Browns, Inc.; The Dallas Cowboys Football
Club, Ltd.; PDB Sports, Ltd.; The Detroit Lions, Inc.;
The Green Bay Packers, Inc.; Houston Oilers, Inc.;
Indianapolis Colts, Inc.; Kansas City Chiefs Football
Club, Inc.; The Los Angeles Raiders, Ltd.; Los Angeles Rams Football Company, Inc.; Miami Dolphins,
Ltd.; Minnesota Vikings Football Club, Inc.; KMS
Patriots Limited Partnership; The New Orleans Saints
Limited Partnership; New York Football Giants, Inc.;
New York Jets Football Club, Inc.; The Philadelphia
Eagles Football Club, Inc.; B & B Holdings, Inc.;
Pittsburgh Steelers Sports, Inc.; The Chargers Football
Company; The San Francisco Forty-Niners, Ltd.; The
Seattle Seahawks, Inc.; Tampa Bay Area NFL Football Club, Inc.; and Pro-Football, Inc., Defendants.
Civil No. 4-92-906(DSD).
March 1, 2011.

170A Federal Civil Procedure
170AXIII Reference
170Ak1896 Report, Findings and Conclusions
170Ak1900 k. Conclusiveness in General.
Most Cited Cases
Federal Civil Procedure 170A

1901

170A Federal Civil Procedure
170AXIII Reference
170Ak1896 Report, Findings and Conclusions
170Ak1901 k. Clear Error in General. Most
Cited Cases
On appeal, a special master's conclusions of law
are reviewed de novo and factual findings are reviewed under the clearly erroneous standard.
[2] Contracts 95

147(2)

95 Contracts
95II Construction and Operation
95II(A) General Rules of Construction
95k147 Intention of Parties
95k147(2) k. Language of Contract.
Most Cited Cases
Under New York law, the terms of a contract
must be construed so as to give effect to the intent of
the parties as indicated by the language of the contract.

Background: Professional football players brought
action against football league alleging it violated the
settlement and stipulation agreement (SSA) the parties
had entered into. Special master ruled in favor of
league. Players objected.

[3] Contracts 95

Holding: The District Court, David S. Doty, J., held
that the conduct of league constituted a breach of
provision of SSA requiring it to use best efforts to
maximize revenue for both league and players during
years covered by SSA.

95 Contracts
95II Construction and Operation
95II(A) General Rules of Construction
95k151 Language of Instrument
95k152 k. In General. Most Cited Cases

Recommendation adopted in part and overruled
in part.

Under New York law, the court should also give
the words in a contract their plain and ordinary
meaning unless the context mandates a different interpretation.

West Headnotes
[1] Federal Civil Procedure 170A

1900

[4] Contracts 95

152

143.5

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))

95 Contracts
95II Construction and Operation
95II(A) General Rules of Construction
95k143.5 k. Construction as a Whole. Most
Cited Cases

Under New York law, an obligation in a contract
that a party must use “best efforts” imposes a higher
obligation than a provision requiring a party to act
good faith.
[8] Contracts 95

Under New York law, the court must give effect
and meaning to each term of a contract, making every
reasonable effort to harmonize all of its terms.
[5] Contracts 95

153

95 Contracts
95II Construction and Operation
95II(A) General Rules of Construction
95k151 Language of Instrument
95k153 k. Construction to Give Validity
and Effect to Contract. Most Cited Cases
Under New York law, the court must interpret a
contract so as to effectuate, not nullify, its primary
purpose.

189

95 Contracts
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases
Under New York law, good faith connotes an
actual state of mind motivated by proper motive and
encompasses, among other things, an honest belief,
the absence of malice and the absence of a design to
defraud or to seek an unconscionable advantage; it
requires that neither party shall do anything which will
have the effect of destroying or injuring the right of
the other party to receive the fruits of the contract.
[9] Compromise and Settlement 89

[6] Compromise and Settlement 89

11

89 Compromise and Settlement
89I In General
89k10 Construction of Agreement
89k11 k. In General. Most Cited Cases
Under New York law, the phrase “consistent with
sound business judgment” in stipulation and settlement agreement (SSA) between football league and
players, that required football league to exercise good
faith in carrying out the SSA consistent with sound
business judgment, permitted football league to consider its long-term interests in renegotiating broadcast
agreements, provided it did so while acting in good
faith and using best efforts to maximize total revenues
for each SSA playing season.
[7] Contracts 95

20(1)

189

95 Contracts
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases

89 Compromise and Settlement
89I In General
89k20 Performance or Breach of Agreement
89k20(1) k. In General. Most Cited Cases
Under New York law, conduct of football league
in renegotiating broadcast contracts to benefit its exclusive interest in ensuring revenue for itself during a
possible player lockout, in order to gain a bargaining
advantage over players and help league achieve a
more favorable collective bargaining agreement
(CBA), at the expense of, and contrary to, the joint
interests of the league and the players in maximizing
total revenues for each playing season covered by
stipulation and settlement agreement (SSA) that
league and players had entered into, constituted a
design to seek an unconscionable advantage, that was
inconsistent with the good faith that the league was
required to exercise under the SSA.
[10] Compromise and Settlement 89

20(1)

89 Compromise and Settlement
89I In General
89k20 Performance or Breach of Agreement

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
89k20(1) k. In General. Most Cited Cases
Under New York law, conduct of football league
in failing to act in good faith so as to maximize total
revenues for each playing season covered by stipulation and settlement agreement (SSA) entered into with
players, constituted a breach of the SSA; league renegotiated broadcast agreements so as to ensure revenue for itself during a possible player lockout, and to
avoid possibility of defaulting on its debt obligations,
at expense of maximizing revenue for both league and
players during years covered by SSA.
[11] Contracts 95

189

95 Contracts
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases
Under New York law, there is no more significant
context for a best efforts obligation than the agreement
of which it is a part or is made so; best efforts necessarily takes its meaning from the circumstances.
[12] Contracts 95

189

95 Contracts
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases
Under New York law a best efforts clause imposes an obligation to act with good faith in light of
one's own capabilities.
[13] Contracts 95

189

95 Contracts
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases
Under New York law, a party obligated to give
best efforts maintains the right to give reasonable
consideration to its own interests and is allowed a
reasonable variance in the exercise of sound business

judgment.
[14] Contracts 95

189

95 Contracts
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases
Under New York law, although a best-efforts
provision does not require a promisor to spend itself
into bankruptcy, it does prohibit a promisor from
emphasizing profit above everything else without fair
consideration of the effect on the promisee.
[15] Contracts 95

189

95 Contracts
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases
Under New York law, a best-efforts clause requires the promisor to do more than treat a promisee's
interest as well as its own.
[16] Compromise and Settlement 89

20(1)

89 Compromise and Settlement
89I In General
89k20 Performance or Breach of Agreement
89k20(1) k. In General. Most Cited Cases
Under New York law, conduct of football league
in actively renegotiating broadcast contracts to ensure
favorable changes for itself and disadvantage the
players, while failing to seek revenue for modifications to the broadcast contracts in seasons covered by
the settlement and stipulation agreement (SSA) that
had been entered into between league and players,
constituted breach of provision of SSA requiring
league to use best efforts to maximize revenue for both
league and players during years covered by SSA.
[17] Contracts 95

189

95 Contracts

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
95II Construction and Operation
95II(C) Subject-Matter
95k189 k. Scope and Extent of Obligation.
Most Cited Cases
Under New York law, a promisor's consideration
of its own interests becomes unreasonable under best
efforts clause when it is manifestly harmful to the
party to which it has obligations.
[18] Injunction 212

9

212 Injunction
212I Nature and Grounds in General
212I(B) Grounds of Relief
212k9 k. Nature and Existence of Right
Requiring Protection. Most Cited Cases
The court considers four factors in determining
whether an injunction should issue: (1) the threat of
irreparable harm to the movant in the absence of relief,
(2) the balance between that harm and the harm that
the relief may cause the non-moving party, (3) the
likelihood of the movant's ultimate success on the
merits and (4) the public interest.
[19] Injunction 212

14

212 Injunction
212I Nature and Grounds in General
212I(B) Grounds of Relief
212k14 k. Irreparable Injury. Most Cited
Cases
Injunction 212

17

212 Injunction
212I Nature and Grounds in General
212I(B) Grounds of Relief
212k15 Inadequacy of Remedy at Law
212k17 k. Recovery of Damages. Most
Cited Cases
Irreparable harm, for purposes of determining
whether injunctive relief is warranted, occurs when a
party has no adequate remedy at law because its injuries cannot be fully compensated through money
damages.
Thomas J. Heiden, Esq., Latham & Watkins, Chicago,

IL, David A. Barrett, Esq., Latham & watkins,
Washington, DC, Anthony N. Kirwin, Esq., Lindquist
& Vennum, Minneapolis, MN, David G. Feher, Esq.,
Jeffrey L. Kessler, Esq., David L. Greenspan, Esq.,
Eva W. Cole, Esq., Dewey & LeBoeuf LLP, New
York, NY, James W. Quinn, Esq., Weil, Gotshal &
Manges, New York, NY, Heather McPhee, Esq., NFL
Players Association, Washington, DC, Timothy R.
Thornton, Esq., Briggs & Morgan, Minneapolis, MN,
cousel for plaintiffs.
Daniel J. Connolly, Esq., Aaron D. Van Oort, Esq.,
Faegre & Benson, Minneapolis, MN, Gregg H. Levy,
Esq., Benjamin Block, Esq., Neil K. Roman, Esq.,
Covington & Burling, Washington, D.C., Shepard
Goldfein, Esq., Skadden, Arps, Slate, Meagher &
Flom, New York, NY, for defendants.
ORDER
DAVID S. DOTY, District Judge.
*1 This matter is before the court upon the objection in part by Class Counsel and the National
Football League Players' Association (collectively,
Players or NFLPA) to the February 1, 2011, opinion of
Special Master Stephen B. Burbank. Based on a review of the file, record and proceedings before the
court, and for the reasons stated, the court adopts in
part and overrules in part the recommendation of the
special master.
BACKGROUND
This appeal arises out of a proceeding commenced by the Players pursuant to Article XXII of the
White Stipulation and Settlement Agreement (SSA).
FN1
See ECF No. 524. The Players allege that the National Football League, its member clubs and the
National Football League Management Council (collectively, NFL) violated the SSA by ignoring the
obligation to act in good faith and use best efforts to
maximize total revenues for both the NFL and the
Players for each SSA playing season. In this appeal,
the court must, in considering the special master's
opinion, determine (1) what the SSA requires of the
parties; and (2) whether the NFL violated the SSA
when it extended and renegotiated broadcast contracts
with DirecTV, CBS, FOX, NBC and ESPN (collectively, broadcasters).
I. Historical Context
On September 10, 1992, following a ten-week
trial, a jury found the NFL in violation § 1 of the

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
Sherman Antitrust Act, 15 U.S.C. § 1. See McNeil v.
Nat'l Football League (Plan B Free Agency), No.
4-90-476, 1992 WL 315292, at *1 (D.Minn. Sept.10,
1992). Following the verdict, individual players
sought injunctive relief to become free agents for the
1992 season. See Jackson v. Nat'l Football League,
802 F.Supp. 226, 228 (D.Minn.1992). Based on the
McNeil verdict, the court temporarily enjoined enforcement of Plan B. Id. at 235. Less than two weeks
after the McNeil verdict, players Reggie White, Michael Buck, Hardy Nickerson, Vann McElroy and
Dave Duerson brought an antitrust class action seeking injunctive relief in the form of total or modified
free agency. See White v. Nat'l Football League, 822
F.Supp. 1389 (D.Minn.1993). The parties decided to
settle their financial and labor disputes, and a mandatory settlement class was certified for damages and
injunctive relief. The NFLPA became the official
exclusive bargaining authority for football players in
March 1993. The NFL and the Players formed the
SSA to bring an end to a wide range of litigation. On
April 30, 1993, the court approved the SSA. The parties also entered into a Collective Bargaining Agreement (CBA) that mirrors the SSA. The parties
amended and extended the CBA in 1996 and 1998. In
2006, the parties renegotiated the CBA for 2006-2012.
On May 20, 2008, the NFL opted out of the final
two years of the current CBA and SSA because,
among other reasons, it believed that the current
agreement “does not adequately recognize the costs of
generating the revenues of which the players receive
the largest share,” and other elements of the deal
“simply are not working.” Ex. 77.FN2 As a result, the
SSA and CBA expire on March 4, 2011. The NFL
recognized that a lockout was “realistically” possible
in order to achieve a new agreement more favorable to
its interests. Tr. 771; see Ex. 221.
*2 Soon after opting out of the CBA, the NFL
began to negotiate extensions of its broadcast contracts. Rights fees in the broadcast contracts generate
approximately half of the NFL's total revenues. Goodell Direct Test. 4. Existing broadcast contracts effectively prevented the NFL from collecting revenue
during a lockout in 2011 because the contracts did not
require broadcasters to pay rights fees during a lockout
or required the NFL to repay lockout fees in 2011. Op.
20-21, ¶¶ 12-22; Ex. 228, at 00065812. Moreover,
some of the NFL's loan obligations include “average
media revenues” covenants which provide that an

“event of default” occurs if average annual league
media revenues fall below a specified value. Op. 20, ¶
9; id. at 21, ¶ 11; Siclare Direct Test. 1, 3. The NFL
worried that its creditors could argue that a default
event had occurred if the NFL locked out the Players
in 2011, the same year that some broadcast contracts
were set to expire, and that a default would give the
Players bargaining power in labor negotiations. Op.
21, ¶ 23; Goodell Direct Test. 3. In light of “market
conditions and strategic considerations,” the NFL
understood that it was “prudent to consider [broadcast
contract] extension alternatives today.” Ex. 228, at
00065812.
II. Broadcast Contracts
In May 2008, the NFL had broadcast contracts
with DirecTV for the 2006-2010 seasons, with CBS,
FOX and NBC, respectively, for the 2006-2011 seasons, and with ESPN for the 2006-2013 seasons
(collectively, previous contracts).
A. DirecTV
The NFL's contract with DirecTV was to expire at
the end of the 2010 season. The previous contract had
no work-stoppage provision. As a result, the NFL
would receive no revenue if it locked out the Players.
DirecTV had the exclusive right to broadcast a “Red
Zone” channel featuring scoring opportunities from
every regular-season Sunday afternoon game. The
NFL wanted to offer its own version of the Red Zone.
Op. 22, ¶ 31; Rolapp Direct Test. 4.
The NFL and DirecTV began negotiations in July
2008. The extended contract provides that DirecTV
will pay a substantial fee if the 2011 season is not
cancelled and up to 9% more, at the NFL's discretion,
if the 2011 season is cancelled. Of the total amount
payable in the event of a cancelled season, 42% of that
fee is nonrefundable and the remainder would be
credited to the following season. Op. 27, ¶¶ 71-72;
Goodell Direct Test. 11. As a result, the NFL could
receive substantially more from DirecTV in 2011 if it
locks out the Players then if it does not. DirecTV
would have considered paying more in 2009 and 2010
“to have [the work-stoppage provision] go away.” Tr.
410.
In the extended contract, DirecTV: (1) gained the
right to distribute Sunday Ticket via broadband; (2)
gained packaging flexibility; (3) maintained the exclusive right to carry out-of-market games (Sunday

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
Ticket); and (4) maintained the nonexclusive right to
carry programming that features year-round, 24-hour
football programming (the NFL Network) through the
end of the 2014 season. Op. 27, ¶ 74; Tr. 379; Goodell
Direct Test. 15. The NFL gained the immediate right
to distribute “look-ins” of Sunday Ticket games as
part of its Red Zone channel. Op. 27, ¶ 74; Tr. 381.
DirecTV agreed to pay an increased average rights fee
for 2011 through 2014. The NFL did not seek an increase in rights fees for the 2009 and 2010 seasons,
and those fees remained unchanged. Op. 26, ¶ 62;
Goodell Direct Test. 7.
B. CBS & FOX
*3 The NFL's contracts with CBS and FOX were
to expire at the end of the 2011 season. Under the
previous contracts, CBS and FOX had to pay rights
fees in the event of a work stoppage. The NFL and the
networks would then negotiate a refund and, if necessary, resolve disputes through arbitration. If refunds were due, the NFL had to repay fees for the first
three cancelled games during the affected season, with
the remainder due the following season. If a work
stoppage occurred in 2011, the final year of the contract, the NFL had to repay CBS and FOX that same
year. The NFL began simultaneous negotiations with
CBS and FOX in April 2009.
The NFL and CBS and FOX, respectively, extended the contracts through the 2013 season. Under
the extended contracts, the new work-stoppage provision: (1) eliminates the requirement that the NFL
repay rights fees attributable to the first three lost
games in the affected season; (2) allows the NFL to
request less than the full rights fee; and (3) allows the
NFL to repay the funds, plus money-market interest,
over the term of the contract. Op. 32, ¶ 126. If an entire
season is cancelled, the contracts extend for an additional season. Id. ¶ 127. Initially, FOX expressed
reluctance to pay rights fees during a work stoppage.
Goodell Direct Test. 19. The NFL considered opposition to the work-stoppage provision a “deal breaker[
].” Ex. 163.
CBS and FOX gained highlight rights, streaming
rights and advertising flexibility for the 2009-2010
seasons. See Op. 30, ¶¶ 106, 107-08, 119; Goodell
Direct Test. 21; Rolapp Direct Test. 11. The NFL
gained the immediate right to distribute “look-ins” of
CBS and FOX games for its Red Zone channel and the
right to distribute highlights through its wireless pro-

vider. See Op. 30, ¶ 103; Rolapp Direct Test. 11. CBS
and Fox agreed to pay increased rights fees for the
2012 and 2013 seasons. The NFL did not seek increased rights fees for the 2009, 2010 and 2011 seasons, and they remained unchanged. CBS, FOX and
the NFL approved the respective contract extensions
in May 2009.
C. NBC
The NFL's broadcast contract with NBC was to
expire at the end of the 2011 season. The previous
contract contained a work-stoppage provision identical to the provisions in the previous CBS and FOX
contracts. The NFL and NBC began negotiations in
March 2009.
The NFL extended NBC's contract through the
2013 season. Under the extended contract, the new
work-stoppage provision: (1) eliminates the requirement that the NFL repay rights fees attributable to the
first three lost games in the affected season; (2) allows
the NFL to request less than the full rights fee; and (3)
allows the NFL to repay the funds, plus money-market
interest, over the term of the contract. Op. 39, ¶ 190;
Goodell Direct Test. 21, 24. If an entire season is
cancelled, the contract extends for one year with the
right to broadcast the Super Bowl that year. Op. 39, ¶
191; Goodell Direct Test. 24.
*4 In extension negotiations, NBC felt that the
NFL was “hosing” it by its rights fees demand. Op. 39,
¶ 185; Tr. 1339. To “bridg[e] the gap,” the NFL agreed
to award NBC an additional regular-season game for
the 2010-2013 seasons. Op. 38, ¶ 181; Tr. 1048-1050,
1339. The NFL did not seek additional rights fees for
the 2009, 2010 and 2011 seasons, and they remained
unchanged. NBC agreed to pay increased rights fees
for the 2012 and 2013 seasons.
NBC gained limited digital and advertising rights
for the 2009-2010 seasons. The NFL gained the immediate right to stream Sunday Night Football via its
wireless partner and certain “lookin” rights. The NFL
and NBC approved the contract extension in May
2010.
D. ESPN
The NFL's contract with ESPN for Monday Night
Football was to expire in 2013. This contract was not
extended, but the work-stoppage provision was
amended. Op. 40, ¶ 194; id. at 41, ¶¶ 204-05; Goodell

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
Direct Test. 25-26. The previous contract contained a
work-stoppage provision similar to the provisions in
the previous CBS, FOX and NBC contracts, except
that the NFL could be required to repay damages
incurred by ESPN due to lost subscription fees. ESPN
wanted to obtain additional digital rights from the
NFL. Op. 40, ¶ 195. The NFL and ESPN negotiated
digital rights and a new work-stoppage provision in
fall 2009. Op. 40, ¶¶ 198-200; Goodell Direct Test. 25.

12. After securing contract extensions with CBS and
Fox, the NFL concluded a carriage agreement with
Comcast, whereby Comcast agreed to carry the NFL
Network on an expanded digital tier, leading to an
8-million subscriber increase in distribution. Op. 34,
¶¶ 1447-48; id. at 35, ¶ 150; Goodell Direct Test. 22;
Tr. 1038. As a result, the NFL Network revenue increased substantially from 2008 to 2009. Op. 35, ¶
150; Siclare Direct Test. 14.

In the event of a cancelled season, the new
work-stoppage provision provides that: (1) ESPN
would, at the NFL's discretion, pay up to the full rights
fee; (2) a credit for the first three games of the season
would be applied the same year; (3) the NFL may
request less than the full rights fee; and (4) the NFL
would repay the funds, with LIBOR interest plus 100
basis points, over the term of the contract. Op. 42, ¶¶
214-15; Tr. 302-03. If an entire season is cancelled,
the contract extends for an additional season. Op. 42, ¶
213; Rolapp Direct Test. 17. The NFL is not liable to
repay more than ESPN's yearly rights fee.

In February 2010, Verizon Wireless (Verizon)
became the NFL's wireless partner. Op. 43, ¶ 220;
Rolapp Direct Test. 15. Verizon agreed to pay higher
fees than the NFL's previous wireless partner, resulting in large increases in direct and indirect value. Op.
43, ¶¶ 223, 225; Rolapp Direct Test. 15. Access to the
NFL's Red Zone channel, Sunday night football
streaming, in-progress highlights, and post-season live
audio helped the Verizon deal move forward. Op. 43,
¶ 228; Rolapp Direct Test. 15-16. In the event of a
work stoppage, Verizon is obligated to pay a
non-refundable rights fee. Op. 44, ¶ 230; Rolapp Direct Test. 3.

ESPN gained (1) the right to use NFL footage in
linear distribution of regular programming across
digital platforms (excluding the right to distribute live
Monday Night Football wirelessly); (2) the right to
stream live Monday Night Football highlights on its
website; (3) the right to show game highlights online;
(4) incremental international rights; and (5) broad
wireless rights. Op. 40, ¶ 199; Rolapp Direct Test.
16-17. The NFL gained the right to distribute
in-progress highlights of ESPN's Monday Night
Football game on NFL.com and wireless devices.
ESPN agreed to pay rights fees for July 2010
through July 2014. Op. 40, ¶ 198; Goodell Direct Test.
25. ESPN requested that the fee not be payable in the
event of a work stoppage, but the NFL rejected the
request. Goodell Direct Test. 25. The NFL stated that
the digital deal and the work-stoppage provisions were
“linked.” Op. 41, ¶ 208; Tr. 889-90. To secure ESPN's
agreement to the work-stoppage provision, the NFL
granted the right to a Monday Night Football “simulcast” via the wireless partner. Op. 41, ¶ 209; Tr.
891-92.
E. Comcast & Verizon
*5 In 2008, the NFL was engaged in litigation
with cable provider Comcast over limited carriage of
the NFL Network. Op. 34, ¶ 141; Goodell Direct Test.

In total, the NFL negotiated access to over $4
billion in rights fees in 2011 if it locks out the Players.
Of that sum, it has no obligation to repay $421 million
to the broadcasters.
III. Present Action
On June 9, 2010, the Players sought a declaration
that the NFL violated Article X, § 1(a)(i) and Article
XIX, § 6 of the SSA when it extended and renegotiated broadcast contracts without satisfying its duty to
maximize total revenues in SSA years 2009 and 2010,
which would inure to the benefit of both the Players
and the NFL. The special master held a trial on January 4-7 and 13, 2011. On February 1, 2011, the special
master found that the NFL violated Article X, § 1(a)(i)
when it granted NBC an additional regularseason
game in the 2010 season and granted ESPN an additional right in the 2010 season in exchange for an
amended work-stoppage provision. Op. 46, ¶¶ 15-16.
The special master granted the Players $6.9 million in
damages for the NBC violation, and determined that
the Players had not met their burden of demonstrating
damages with respect to the ESPN violation. Op.
47-48. The special master found that the NFL did not
otherwise breach the SSA. The Players objected in
part to the special master's opinion. The court now
considers the objection.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 8
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))

DISCUSSION
[1][2][3][4][5] On appeal, the special master's
conclusions of law are reviewed de novo and factual
findings are reviewed under the clearly erroneous
standard. See White v. Nat'l Football League (Rob
Moore), 88 F.Supp.2d 993, 995 (D.Minn.2000); see
also Fed.R.Civ.P. 53(f)(3)(A)-(4) (factual findings
reviewed for clear error and legal conclusions reviewed de novo). New York law governs interpretation of the SSA. As the court has previously stated:
*6 Under New York law, the terms of a contract
must be construed so as to give effect to the intent of
the parties as indicated by the language of the contract. The objective in any question of the interpretation of a written contract, of course, is to determine what is the intention of the parties as derived
from the language employed. The court should also
give the words in a contract their plain and ordinary
meaning unless the context mandates a different
interpretation.
See White v. Nat'l Football League (30% Rule),
899 F.Supp. 410, 414 (D.Minn.1995). Further, the
court must give effect and meaning to each term of the
contract, making every reasonable effort to harmonize
all of its terms. See Reda v. Eastman Kodak Co., 233
A.D.2d
914,
649
N.Y.S.2d
555,
557
(N.Y.App.Div.1996). The court must also interpret the
contract so as to effectuate, not nullify, its primary
purpose. See id. Here, the primary purpose of the SSA
was to settle numerous labor and financial disputes
between the Players and the NFL, and to secure revenue for their mutual benefit. The SSA and the CBA
have been amended several times to continue labor
harmony between the parties.
I. Alleged SSA Violations
Article X, § 1(a)(i) of the SSA provides that:
The NFL and each NFL team shall in good faith act
and use their best efforts, consistent with sound
business judgment, so as to maximize Total Revenues for each playing season during the term of this
Agreement....
SSA Art. X, § 1(a)(i). The SSA defines total
revenues as:
“Total Revenues” (“TR”) means the aggregate
revenues received or to be received on an accrual

basis, for or with respect to a League Year during
the term of this Agreement, by the NFL and all NFL
Teams (and their designees), from all sources,
whether known or unknown, derived from, relating
to or arising out of the performance of players in
NFL football games....
Id.
The Players argue that the special master erred by
concluding that the NFL did not breach the SSA,
finding that the good-faith requirement adds nothing
to the SSA, erroneously interpreting “sound business
judgment” and total revenues, and declining to issue
an injunction. The Players “bear the burden of demonstrating by a clear preponderance of the evidence
that the challenged conduct was in violation of Article
X.” SSA Art. XV, § 3.
A. Consistent with Sound Business Judgment
The court first considers the meaning of the words
“consistent with sound business judgment” because
this language is essential to interpreting the meaning
of “good faith” and “best efforts” in Article X. The
special master found that “consistent with sound
business judgment” qualifies the duty to act in good
faith and use best efforts to maximize total revenues,
thereby rejecting the Players' argument that it imposes
an additional obligation. Op. 14.
The language of § 1(a)(i) cannot be construed by
looking at each word in isolation. See Dore v. La
Pierre, 226 N.Y.S.2d 949, 952 (N.Y.Sup.Ct.1962) (
“In interpreting a contract, particular words should not
be considered as isolated from the context.”). The
court looks to the entire sentence and the words surrounding the phrase for guidance. See Popkin v. Sec.
Mut. Ins. Co. of N.Y., 48 A.D.2d 46, 367 N.Y.S.2d
492, 495 (N.Y.App.Div.1975). In this case, applying
the principle of noscitur a sociis and considering
punctuation and grammatical structure, the court
agrees with the special master that “consistent with
sound business judgment” qualifies the duties to act in
good faith and use best efforts.
*7 The special master erred, however, in his application and analysis of “consistent with sound
business judgment.” He reasoned that “it would be
absurd and commercially unreasonable” to allow the
Players to substitute their own business judgment for
that of the NFL, Op. 13-14, because he relied on cases

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 9
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
that interpret the business-judgment rule as it applies
to fiduciary duties of corporate directors. See In re
Lipper Holdings, LLC, 1 A.D.3d 170, 766 N.Y.S.2d
561, 562 (N.Y.App.Div.2003) (reviewing limited
partnership agreement); Auerbach v. Bennett, 47
N.Y.2d 619, 629-30, 419 N.Y.S.2d 920, 393 N.E.2d
994 (N.Y.1979) (reviewing corporate action). The
rationale for the businessjudgment rule does not apply
here. In a corporate context, the business-judgment
rule exists to insulate corporate directors from personal liability when they take good-faith risks on
behalf of a corporation. The rule protects directors
from actions by stockholders (owners) and others.
Unlike corporate directors and stockholders, whose
interests generally align, the interests of management
(owners) and labor are adversarial. Therefore, in the
SSA, the words “sound business judgment” do not
grant the same discretion enjoyed by corporate directors.
The special master should have considered the
intent of the parties and the context from which this
language arose. The NFL and Players formed the SSA
to avoid the consequences of the jury verdict finding
the NFL in violation of antitrust law. The level of
discretion allowed by the SSA is constrained by the
context and hard bargaining which establish the intent
of the parties and the meaning of that language.
[6] The court must construe the SSA in light of
the language agreed to by the parties and New York
law. The phrase “consistent with sound business
judgment” qualifies, and is qualified by, the SSA
requirement that the parties act in good faith and use
best efforts to maximize total revenues for the joint
benefit of the Players and the NFL. Indeed, “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.
Accord Dist. Lodge 26 of Int'l Ass'n of Machinists &
Aerospace Workers, AFL-CIO v. United Techs. Corp.,
689 F.Supp.2d 219, 242 (D.Conn.2010) (considering
contract's “every reasonable effort” provision).FN3
“Sound business judgment” does not allow the NFL to
pursue its own interests at the expense of maximizing
total revenues during the SSA. Therefore, the special
master committed legal error in his interpretation of
“sound business judgment,” which effectively nullified pertinent terms of the SSA.

B. Good Faith
[7] Good faith and best efforts are distinct obligations:
Good faith is a standard that has honesty and fairness at its core and that is imposed on every party to
a contract. Best efforts is a standard that has diligence at its essence and is imposed on those contracting parties that have undertaken such performance. The two standards are distinct, and that of
best efforts is the more exacting....
*8 2 E. Allan Farnsworth, Farnsworth on Contracts § 7.17c (3d ed.2004) (citation omitted); see also
Grossman v. Melinda Lowell, Attorney at Law, P.A.,
703 F.Supp. 282, 284 (S.D.N.Y.1989) (best efforts
imposes additional obligation); Ashokan Water Servs.,
Inc. v. New Start, LLC, 11 Misc.3d 686, 807 N.Y.S.2d
550, 556 (N.Y.Civ.Ct.2006) (“A best efforts requirement must be reconciled with other clauses in the
contract to the extent possible, not used as a basis for
negating them.”) (citation and internal quotation
marks omitted). The special master correctly stated
that best efforts imposes a “higher obligation” than
good faith. Op. 12-13 (citing Ashokan Water Servs.,
807 N.Y.S.2d at 555); see also Kroboth v. Brent, 215
A.D.2d
813,
625
N.Y.S.2d
748,
814
(N.Y.App.Div.1995) (“ ‘best efforts' requires more
than ‘good faith’ ”). However, the special master then
declined to analyze the SSA's good faith obligation
because he reasoned that “under New York law, any
breach of the duty of good faith will also constitute a
failure to exert best efforts, although the converse is
not always true.” Op. 12-13. The failure to separately
analyze good faith constitutes legal error.
[8] Good faith “connotes an actual state of mind
... motivated by proper motive” and “encompasses,
among other things, an honest belief, the absence of
malice and the absence of a design to defraud or to
seek an unconscionable advantage.” Ashokan Water
Servs., 807 N.Y.S.2d at 554 (citation and internal
quotation marks omitted). In addition, good faith
requires that “neither party shall do anything which
will have the effect of destroying or injuring the right
of the other party to receive the fruits of the contract.”
511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98
N.Y.2d 144, 746 N.Y.S.2d 131, 773 N.E.2d 496, 500
(N.Y.2002) (citation omitted).
[9] Broadcast contracts are an enormous source of

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 10
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
shared revenue for the Players and the NFL. Under the
SSA, the Players rely on the NFL to negotiate these
contracts on behalf of both the NFL's own interests
and the interests of the Players. In May 2008, the NFL
opted out of the final two years of the CBA, and recognized that a lockout in 2011 would help achieve a
more favorable CBA. Thereafter, the NFL sought to
renegotiate broadcast contracts to ensure revenue for
itself in the event of a lockout. See, e.g., Exs. 98, 102,
110, 131, 228. The record shows that the NFL undertook contract renegotiations to advance its own
interests and harm the interests of the players.FN4 The
NFL argues that the SSA does not require it to act in
good faith in 2011 or subsequent seasons, that lockouts are recognized bargaining tools and that it is
entitled to maximize its post-SSA leverage. The court
agrees.FN5 However, under the terms of the SSA, the
NFL is not entitled to obtain leverage by renegotiating
shared revenue contracts, during the SSA, to generate
post-SSA leverage and revenue to advance its own
interests and harm the interests of the Players. 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. See Ashokan Water Servs., 807 N.Y.S.2d at 554
(citation and internal quotation marks omitted).
*9 [10] The NFL next argues that any injury to the
Players' interests will occur after the termination of the
SSA. The court disagrees. As a result of the broadcast
contract renegotiations, the NFL demanded and received “material[ly]” different, immediately effective
work-stoppage agreements. See, e.g., Bornstein Dep.
168-69. Moreover, at least one broadcaster would
have considered paying more in the 2009-2010 seasons “to have [the work-stoppage provision] go
away,” Tr. 410, indicating that the NFL's inflexibility
with respect to lockout provisions resulted in less total
revenues for the 2009-2010 seasons. The NFL also
argues that the broadcast contracts were renegotiated
to avoid defaulting under certain loan covenants. That
fact alone substantiates value to the NFL without a
corresponding increase in total revenues. Moreover,
the value of the renegotiated contracts far exceeds the
amount needed to satisfy loan covenants, and the
DirecTV contract creates a financial incentive to institute a lockout. Further, the decision to lockout the
Players is entirely within the control of the NFL, thereby rendering a debt default also entirely within its
control. Lastly, the debt covenants are of the NFL's

own making. The risk of debt default brought about by
a lockout does not excuse or justify a breach of the
SSA. Therefore, construing the good faith obligation
as modified by “consistent with sound business
judgment,” the NFL breached the SSA by failing to
act in good faith so as to maximize total revenues for
each SSA playing season.FN6 The special master
committed legal error by failing to properly interpret
the good faith provision and by finding no breach.FN7
C. Best Efforts
[11][12] “There is, of course, no more significant
context for a ‘best efforts' obligation than the agreement of which it is a part or is made so.” Ashokan
Water Servs., 807 N.Y.S.2d at 556. Best efforts
“necessarily takes its meaning from the circumstances.” Bloor v. Falstaff Brewing Corp., 454 F.Supp.
258, 266 (S.D.N.Y.1978) (citation and internal quotation marks omitted). Under New York law “a best
efforts clause imposes an obligation to act with good
faith in light of one's own capabilities.” Bloor v.
Falstaff Brewing Corp., 601 F.2d 609, 613 n. 7 (2d
Cir.1979) (internal quotation marks omitted). Capability “is a far broader term than financial ability” and
“must take into account [the promisor's] abilities and
opportunities which it created or faced.” Bloor, 454
F.Supp. at 267 (internal quotation marks omitted).
[13][14][15] A party obligated to give best efforts
maintains the “right to give reasonable consideration
to its own interests,” Bloor, 601 F.2d at 614, and is
allowed a “reasonable variance ... in the exercise of
sound business judgment,” Bloor, 454 F.Supp. at 269.
Although a best-efforts provision does “not require [a
promisor] to spend itself into bankruptcy,” it does
prohibit a promisor from “emphasizing profit uber
alles without fair consideration of the effect” on the
promisee. Bloor, 601 F.2d at 614. A best-efforts clause
requires the promisor to do more than treat a promisee's interest “as well as its own.” Id.
*10 The special master failed to analyze the total
capabilities and the market power of the NFL because
he found it “difficult to believe that” the parties intended best efforts to “require the NFL to seek additional consideration for rights already under contract.”
Op. 15. This is another example of importing corporate law to a sui generis agreement that was forged at
the anvil of litigation, threatened repercussions and
hard bargaining. FN8

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 11
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
Moreover, although the rights fees for the
2009-2010 seasons were already agreed upon, the
renegotiated contracts materially changed almost
every other aspect of the previous contracts. Further,
the NFL gave digital rights in 2009 and 2010 without
incremental payments to convince two broadcasters to
agree to work-stoppage provisions. See Op. 46, ¶ 16;
Exs. 160, 163, 170; Tr. 866-77. The NFL gave digital
and other rights in 2009 and 2010 without incremental
payments to convince other broadcasters to pay increased rights fees in 2012 and subsequent seasons.
See Op. 46, ¶ 15; Ex. 167, at 00003736. The NFL
made no effort to maximize total revenues in
2009-2010 in exchange for those rights.
The court agrees with the special master that the
best-efforts clause does not require the NFL to “constantly badger[ ] its broadcast ... partners for more
money” without offering anything in return. Op. 15.
However, the SSA requires the NFL to use best efforts
to maximize total revenues for the 2009-2010 seasons
when it enters into widespread and lucrative contract
renegotiations. FN9 As the special master noted, the law
disfavors “those who come to regret deals they have
made and seek to switch the locus of risk ex post.” Op.
15. However, by actively renegotiating broadcast
contracts to ensure favorable changes for itself and
disadvantage the Players, the NFL did precisely that.
As a result, the failure of the NFL to seek revenue for
modifications to the broadcast contracts in the
2009-2010 seasons is inconsistent with best efforts.
In applying the total-capabilities analysis, the
court finds that the NFL's capabilities are formidable
and extensive. “Capability is a far broader term than
financial ability” and includes the NFL's market
power and “the opportunities which it created or
faced.” Bloor, 454 F.Supp. at 267. Along with favorable lockout protection and digital rights agreements,
the NFL secured annual rights fees increases large
enough to be considered an “enormous accomplishment.” Goodell Direct Test. 10, 20-21, 24; see Op. 22,
¶¶ 25-26. According to one network executive, “[y]ou
know you've reached the absolute limits of your power
as a major network ... [when] the commissioner of the
National Football League calls you ... and says ...
[w]e're done, pay this or move on .... [the NFL has]
market power like no one else, and at a certain point in
time, they'll tell you to pack it up or pay the piper.” Tr.
1346. The record indicates that, using its market
power, the NFL had substantial capability to maxim-

ize total revenues for the 2009 and 2010 playing seasons when it entered into broadcast contract renegotiations.
*11 [16][17] To the extent that “consistent with
sound business judgment” modifies the best efforts
requirement, the NFL may consider its long-term
interests but not at the expense of maximizing total
revenues for each SSA season for the joint benefit of
itself and the Players. A promisor's consideration of its
own interests becomes unreasonable when it is manifestly harmful to the party to which it has obligations.
See Van Valkenburgh, Nooger & Neville, Inc. v.
Hayden Pub. Co., 30 N.Y.2d 34, 330 N.Y.S.2d 329,
281 N.E.2d 142, 145 (N.Y.1972); accord Dist. Lodge
26, 689 F.Supp.2d at 242. “Consistent with sound
business judgment” does not permit the NFL to enhance its long-term interests at the expense of its
present obligations.FN10 The record shows, however,
that the NFL did just that. In considering broadcast
contract renegotiations, the NFL consistently characterized gaining control over labor as a short-term
objective and maximizing revenue as a long-term
objective. See, e.g., Exs. 142, 201, 228. The NFL used
best efforts to advance its CBA negotiating position at
the expense of using best efforts to maximize total
revenues for the joint benefit of the NFL and the
Players for each SSA playing season. Moreover, at
least three networks expressed some degree of resistance to the lockout payments. As it renegotiated the
contracts, the NFL characterized network opposition
to lockout provisions to be a deal breaker and “clearly
a deal” it would not consider. Ex. 163. To the contrary,
the evidence shows that maximizing total revenues for
SSA seasons was, at best, a minor consideration in
contract renegotiations. Therefore, the court finds that
the NFL breached Article X, § 1(a)(i) in extending or
renegotiating its broadcast contracts. Accordingly, the
special master committed legal error in failing to
properly interpret the SSA's requirement to act in good
faith and use best efforts, consistent with sound
business judgment, to maximize total revenues for
each SSA playing season, and thus finding no breach.
II. Remedies
[18][19] In his “recommendations of relief,” the
special master did not consider injunctive relief. See
Op. 46-48. The special master's failure to consider
injunctive relief constitutes legal error. The court
considers four factors in determining whether an injunction should issue: (1) the threat of irreparable

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 12
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
harm to the movant in the absence of relief, (2) the
balance between that harm and the harm that the relief
may cause the non-moving party, (3) the likelihood of
the movant's ultimate success on the merits and (4) the
public interest. Dataphase Sys., Inc. v. C.L. Sys., Inc.,
640 F.2d 109, 114 (8th Cir.1981) (en banc).FN11 Irreparable harm occurs when a party has no adequate
remedy at law because its injuries cannot be fully
compensated through money damages. See Gen. Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312, 319
(8th Cir.2009). The issue of the extent to which, and
whether, money damages can compensate the Players
has not been fully briefed or argued before the court.
Therefore, the court determines that additional briefing and a hearing concerning remedies are warranted
before it issues its final order.
CONCLUSION
*12 IT IS HEREBY ORDERED that:
1. The court adopts the special master's “recommendations for relief” paragraphs 1 and 2, see Op. 47,
as there is no objection to these findings and recommendations before the court;
2. The court overrules the special master's findings as to the NFL's breach of the SSA relating to its
contracts with DirecTV, CBS, FOX, NBC and ESPN,
and holds that the NFL breached the SSA as to those
contracts; and
3. The court orders that a hearing be held concerning relief to be granted to the Players arising from
the NFL's breach of the SSA. The hearing shall consider the award of both money damages and equitable
relief, including injunction. District of Minnesota
Local Rule 7.1(b) will dictate briefing schedules and
related procedures.
FN1. The parties amended the SSA in 1993,
1996, 2002 and 2006.
FN2. “Ex.” refers to joint trial exhibits submitted at the hearing before the special master. “Tr.” refers to the transcript of the hearing before the special master. “Direct Test.”
refers to direct testimony declarations. “Op.”
refers to the special master's February 1,
2011, opinion.

FN3. “New York courts use the term reasonable efforts interchangeably with best
efforts.” Monex Fin. Servs. Ltd. v. Nova Info.
Sys., Inc., 657 F.Supp.2d 447, 454
(S.D.N.Y.2009) (citation and internal quotation marks omitted).
FN4. The NFL's “Decision Tree” is one
glaring example of the NFL's intent and
consideration of its own interests above the
interests of the Players. See Ex. 216, at
00081969. Moving forward with a deal depended on the answer to the question: “Does
Deal Completion Advance CBA Negotiating
Dynamics?” If yes, the NFL should “Do Deal
Now”; if no, the NFL should “Deal When
Opportune.” Id.
FN5. The court notes, however, that a lockout is usually an economic weapon employed
in response to a strike. See 48B Am.Jur.2d
Labor & Labor Relations § 2652 (“A lockout
is a legitimate move by an employer in the
face of a strike....”).
FN6. The NFL rankles under the restriction
to its enormous market power imposed by the
White settlement after the jury in McNeil
found that the NFL had abused its power in
unlawful restraint of trade. The facts underlying this proceeding illustrate another abuse
of that 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. Typical work-stoppage
provisions anticipate a strike by players, not a
work stoppage created by the NFL itself.
Whether the contract provisions insuring
these payments might ultimately be deemed
unenforceable because of their potentially
collusive nature is not an issue before this
court, but the court does consider the abuse
of the NFL's market power when finding that
it did not act in good faith to benefit both itself and the Players, as required by the SSA.
FN7. As a result, the court need not analyze
whether the NFL also violated SSA Article
XIX, § 6.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 13
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)
(Cite as: 2011 WL 706319 (D.Minn.))
FN8. The special master noted that “a signed
writing is sufficient to overcome the traditional refusal to enforce a promise to pay
more in the absence of additional consideration.” Op. 15. The special master erred in
relying on the preexisting duty rule. The rule
does not apply where, as here, the parties do,
or promise to do, something in addition to
their preexisting duties. See, e.g., Care Travel Co., Ltd. v. Pan Am. World Airways, Inc.,
944 F.2d 983, 990 (2nd Cir.1991) (airline
promised that it would not terminate contract
within 90 days, even though it had right to do
so, and agency agreed to operate as nonexclusive agent).

END OF DOCUMENT

FN9. The court rejects the argument that such
an interpretation hypothetically requires the
NFL to sell tickets or sponsorship rights for a
future season in 2009 or 2010. Unlike the
hypothetical scenario, here the NFL renegotiated contracts for years within the term of
the SSA and obtained immediate benefits
from those renegotiations.
FN10. The NFL urges the court to follow an
unpublished Fourth Circuit case, which held
that the duty to use best efforts “consistent
with its overall business objectives” allows
the defendant “to act in accordance with its
own objectives if they conflict with those of
[plaintiff].” Mylan Pharm., Inc. v. Am.
Cyanamid Co., Nos. 94-1502, 94-1472, 1995
WL 86437, at *6 (4th Cir.1995). This unpublished case is not persuasive or controlling authority. See 8th Cir. R. 32.1A; 2d Cir.
R. 32.1. Moreover, it provides no analysis or
substantive reasoning for its interpretation.
FN11. The factors are the same for a permanent injunction except that the movant
must show actual success on the merits. See
Vonage Holdings Corp. v. Minn. Pub. Util.
Comm'n, 290 F.Supp.2d 993, 996
(D.Minn.2003) (citing Amoco Prod. Co. v.
Vill. of Gambell, 480 U.S. 531, 546 n. 12, 107
S.Ct. 1396, 94 L.Ed.2d 542 (1987)).
D.Minn.,2011.
White v. National Football League
--- F.Supp.2d ----, 2011 WL 706319 (D.Minn.)

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.