Brady et al v. National Football League et al

Filing 144

DOCUMENT FILED IN ERROR, CAPTION INCORRECT, WILL RE-FILE. MEMORANDUM in Support re 142 MOTION to Alter/Amend/Supplement Pleadings Leave to Amend and Crossclaim filed by Obafemi Ayanbadejo, Ryan Collins, Carl Eller. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Stuckey, Shawn) Modified on 7/7/2011 (JME).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
Carl Eller, Franco Harris, Marcus Allen,
Paul Krause, Lemuel Barney, Joseph
DeLamielleure, Elvin Bethea, Michael
Haynes, Obafemi Ayanbadejo, and Ryan
Collins, individually, and on behalf of all
others similarly situated,

Civil Action No: 11-cv-00639
SRN/JJG

Plaintiffs,
v.
National Football League, Arizona
Cardinals, Inc., Atlanta Falcons Football
Club LLC, Baltimore Ravens Limited
Partnership, Buffalo Bills, Inc., Panthers
Football LLC, Chicago Bears Football
Club, Inc., Cincinnati Bengals, Inc.,
Cleveland Browns LLC, Dallas Cowboys
Football Club, Ltd., Denver Broncos
Football Club, Detroit Lions, Inc., 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,
New England Patriots, LP, New Orleans
Louisiana Saints, LLC, New York Football
Giants, Inc., New York Jets Football Club,
Inc., Oakland Raiders LP, Philadelphia
Eagles Football Club, Inc., Pittsburgh
Steelers Sports, Inc., San Diego Chargers
Football Co., San Francisco Forty Niners
Ltd., Football Northwest LLC, The Rams
Football Co. LLC, Buccaneers Limited
Partnership, Tennessee Football, Inc.,
Washington Football Inc.. and National
Football League Players Association, Tom
Brady, Drew Brees, Vincent Jackson, Ben
Leber, Logan Mankins, Peyton Manning,
Von Miller, Brian Robison, Osi

MEMORANDUM IN SUPPORT
OF MOTION FOR LEAVE TO
FILE SECOND AMENDED
COMPLAINT AND
CROSSCLAIM

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Umenyiora, Mike Vrabel and DeMaurice
Smith.
Defendants.
---------------------------------------------------x

INTRODUCTION
Plaintiffs Carl Eller, Obafemi Ayanbadejo, and Ryan Collins (the “Eller
Plaintiffs”) respectfully request leave of the Court to file and serve Plaintiffs’ Second
Amended Complaint (“SAC”) pursuant to Fed.R.Civ.P. 15(a).

The Eller Plaintiffs

previously sought to enjoin the lockout perpetrated by the National Football League
(“NFL” or “League”) and its 32 member clubs. That cause of action remains although
monetary relief is now sought in the SAC. Two new causes of action have been added.
One is against the NFL Defendants, the National Football League Players Association
(“NFLPA”) and its Executive Director, DeMaurice Smith, and Tom Brady, Drew Brees,
Vincent Jackson, Ben Leber, Logan Mankins, Peyton Manning, Von Miller, Brian
Robison, Osi Umenyiora, and Mike Vrabel (the named plaintiffs in the case of Brady v.
NFL, No. 0:11-cv-00639 SRN JGG (D. Minn.) (“the Brady Plaintiffs”)) for unlawfully
engaging in settlement negotiations intended to deprive former NFL players of benefits
so that higher salaries can be paid to current NFL players. The second is a cause of action
against the NFLPA for breach of fiduciary duties. These latter two claims became
apparent to the Eller plaintiffs only within the last few weeks. The claims as to the Brady
plaintiffs constitute a crossclaim pursuant to Fed.R.Civ.P. 13(g). The SAC also adds

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additional plaintiffs. Two former plaintiffs—Priest Holmes and Antawan Walker—are
filing separate notices of dismissal under Fed.R.Civ.P. 41(a)(1). The Eller Plaintiffs’
Motion should be granted because there is no prejudice to Defendants, Eller Plaintiffs are
acting in good faith without undue delay, and the Eller Plaintiffs will be prejudiced if
they cannot file their Second Amended Complaint.
FACTUAL BACKGROUND
On April 11, 2011, the District Court ordered mediation which was to include
ALL parties and was to occur before Chief Magistrate Judge Arthur Boylan. Mediation at
which all parties were present occurred on April 14-15 and 19-20, and May 15-16. At all
times in those proceedings, counsel for the Eller Plaintiffs alone represented the interests
of retired NFL players. All parties agreed, in one form or another, that the Eller Plaintiffs
would alone represent the interests of the retired players. Counsel for the Eller Plaintiffs
have consistently stated that any settlement would have to have the direct input of the
Eller Plaintiffs.
In the period since May 16, the NFL and NFLPA have held five negotiating
sessions in Chicago, Boston, Long Island, Maryland and Minneapolis. Neither the Eller
Plaintiffs nor their counsel were allowed to attend these meetings. However, it has
become clear that the NFLPA and NFL have been negotiating issues relating to retired
NFL players. Through cutting out the Eller Plaintiffs, the NFLPA and the NFL have
conspired to set retiree benefit and pension levels at artificially low levels.
ARGUMENT
Eller Plaintiffs should be allowed to file their proposed SAC. The standard for
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amending pleadings is intentionally liberal so that parties may resolve their disputes on
the merits. Fed.R.Civ.P. 15(a) provides that leave to amend pleadings “. . . shall be freely
given when justice so requires.” Because of the Rules’ open approach to amendments,
the Eighth Circuit has held that a denial of a motion to amend “is justified only in the
limited circumstances of ‘undue delay, bad faith on the part of the moving party, futility
of the amendment or unfair prejudice to the opposing party.’” Krispin v. The May Dep’t
Stores Co., 218 F.3d 919, 924 (8th Cir. 2000); see also Popp Telcom v. American
Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) (a motion to amend “should normally
be granted absent good reason for a denial”). To further foster the liberality provided in
by Rule 15(a), the Court has held that delay alone is an insufficient reason to deny a
motion to amend, and the burden of proof is on the party opposing the motion to prove
that the amendment would result in undue prejudice. Roberson v. Hayti Police Dep’t,
241 F.3d 992, 995 (8th Cir. 2001).
In the instant case, the Eller Plaintiffs should be allowed to amend their Complaint
to include additional allegations relating to intervening developments.

The NFL

Defendants named previously have not, nor will they, suffer undue prejudice. Generally,
courts deny motions for leave to amend on the basis of undue prejudice only when the
non-moving party is able to specifically articulate some form of obvious and severe
hardship that it would suffer if the amendment is allowed. Typically, this situation arises
when discovery has been completed or nearly completed, when the motion is made on the

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eve of trial, or when the time for identifying necessary experts has expired. See Williams
v. Little Rock Municipal Water Works, 21 F.3d 218, 224-225 (8th Cir. 1994). None of
these concerns are present here. No discovery has commenced and no defendants have
answered. Allowing the Eller Plaintiffs to file its Second Amended Complaint will not
hinder in any way the defendants’ ability to prepare a defense to any of the claims set
forth in the Second Amended Complaint.
Finally, the Eller Plaintiffs will be prejudiced if they are not allowed to file their
SAC, because and as stated earlier, the Eller Plaintiffs’ amendments to their Complaint
contain references to, and rely upon, unlawful behavior that did not exist when the
Plaintiffs filed their Original and First Amended Complaint.
CONCLUSION
For the foregoing reasons, the Eller Plaintiffs respectfully request that the Court
grant their Motion for an Order permitting them to file Plaintiffs’ Second Amended
Complaint pursuant to Fed.R.Civ.P. 15(a), including crossclaims against the Brady
Plaintiffs, pursuant to Fed.R.Civ.P. 13(g).

Dated: July 4, 2011

Respectfully Submitted,

Michael D. Hausfeld
Hilary K. Scherrer
HAUSFELD LLP
1700 K Street, NW
Suite 650
Washington, D.C. 20006

s/Shawn D. Stuckey
Mark J. Feinberg (#28654)
Michael E. Jacobs (#0309552)
Shawn D. Stuckey (#0388976)
ZELLE HOFMANN VOELBEL &
MASON, LLP
500 Washington Avenue, South

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Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Suite 4000
Minneapolis, MN 55415
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Michael P. Lehmann
Jon T. King
Arthur N. Bailey, Jr.
HAUSFELD LLP
44 Montgomery Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Daniel S. Mason
ZELLE HOFMANN VOELBEL &
MASON, LLP
44 Montgomery Street
Suite 3400
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Samuel D. Heins (#43576)
Vince J. Esades (#249361)
HEINS MILLS & OLSON, P.L.C.
310 Clifton Avenue
Minneapolis, MN 55403
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

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