Brady et al v. National Football League et al

Filing 159

MEMORANDUM in Support re 157 Amended 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
Carl Eller, Priest Holmes, Obafemi
Ayanbadejo, Ryan Collins, and Antawan
Walker, 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.

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

Defendants.
---------------------------------------------------x

1

INTRODUCTION
Plaintiffs Carl Eller, Obafemi Ayanbadejo, and Ryan Collins (the “Eller
Plaintiffs”) respectfully move the Court for leave to file and serve their Second Amended
Complaint (“SAC”) pursuant to Fed.R.Civ.P. 15(a) and Crossclaims pursuant to
Fed.R.Civ.P. 13. 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 proposed SAC.
Two additional 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. 0:11cv-00639 SRN JGG (D. Minn.) (“the Brady Plaintiffs”)) for unlawfully negotiating
collectively to reach an agreement that deprives former NFL players of increased 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 two claims became apparent to
the Eller Plaintiffs only recently. The claims as to the Brady Plaintiffs constitute a
crossclaim pursuant to Fed.R.Civ.P. 13(g).
In light of the Eighth Circuit’s Opinion in Brady v. NFL, 2011 U.S. App. LEXIS
14111 (8th Cir. 2011) (“Brady”), the Eller Plaintiffs plan to file a request for a hearing on
the requested injunctive relief.

2

The proposed SAC also adds additional plaintiffs. One former plaintiff—Antawan
Walker—is filing a separate notice of dismissal under Fed.R.Civ.P. 41(a)(1).
The Eller Plaintiffs’ Motion should be granted because there is no prejudice to
Defendants, the Eller Plaintiffs are acting in good faith without undue delay, and the
Eller Plaintiffs will be prejudiced if they cannot file their SAC.
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 16-17. 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 of retired players’ claims 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 sessions. 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.

3

Additionally, on July 8, 2011 the Eighth Circuit Court of Appeals rendered its
decision in Brady, which now provides an additional reason for amending the Eller
Plaintiffs’ First Amended Complaint. See Brady, 2011 U.S. App. LEXIS at 14111.
ARGUMENT
The Eller Plaintiffs should be allowed to file their proposed SAC. The standard for
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 this liberal 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). To further foster the liberality provided 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 – including the
actions by Defendants, Mr. Smith, and the Brady Plaintiffs, in addition to the Eighth
Circuit’s Opinion in Brady.
The Defendants and Cross-Defendants named previously have not, nor will they,
suffer undue prejudice. Generally, courts refuse leave to amend on the basis of undue
4

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 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, no
defendants have answered, no trial date has been set, and no deadline for identifying
experts has passed. Allowing the Eller Plaintiffs to file their SAC will not hinder in any
way the ability of the Defendants, or Cross-Defendants, to prepare a defense to any of the
claims set forth in the SAC.
Finally, the Eller Plaintiffs will be prejudiced if they are not allowed to file their
proposed SAC, because the Eller Plaintiffs’ amendments to their Complaint involve, and
rely upon, unlawful behavior that did not exist when the Plaintiffs filed their Original
Complaint and First Amended Complaint, and the recent decision in Brady now provides
an additional reason for amending the Eller Plaintiffs’ 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 their SAC pursuant to
Fed.R.Civ.P. 15(a), including Crossclaims against the Brady Plaintiffs, pursuant to
Fed.R.Civ.P. 13(g).

5

Dated: July 13, 2011

Respectfully Submitted,

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

Michael D. Hausfeld
Hilary K. Scherrer
HAUSFELD LLP
1700 K Street, NW
Suite 650
Washington, D.C. 20006
Telephone: [phone]
Facsimile: [phone]
[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

6
360186v6