Brady et al v. National Football League et al

Filing 42

Supplemental DECLARATION of Richard A. Berthelsen in Support of 41 Reply, filed by Tom Brady, Drew Brees, Vincent Jackson, Ben Leber, Logan Mankins, Peyton Manning, Von Miller, Brian Robison, Osi Umenyiora, Mike Vrabel. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D). (Berens, Barbara) Modified text on 3/29/2011 (lmb).

EXHIBIT B

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

----------------------------------------x
REGGIE WHITE, et al.,
Plaintiffs,

Civil Action
No. 4-92-906

v.

NATIONAL FOOTBALL LEAGUE, et al.,

Judge Doty

Defendants.

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STIPULATION AND SETTLEMENT AGREEMENT

As Amended

May 6, 1993

XXVI.
~.

TERMINATION PRIOR TO BYPIBATION DATE

In the event that this Agreement does not

receive Court Approval or is invalidated by any appellate
court prior to September
(a)

~,

~993:

this Action and the Related Litigation

shall be reinstated to the status quo ante that existed in
such actions prior to January 6,
(b)

~993;

all pending motions in White and McNeil

shall be decided by the Court; and
(c)

with respect to all Player Contracts

entered into by Unrestricted Free Agents during the period
from March

~

to the date of such disapproval, and by

Restricted Free Agents during the period from March

~

to the

date of such disapproval:
(i) any Club that had rights to the
services of any such player on January

3~,

~993

shall have

the right to assume any such Player Contract by notice to
the player, the New Club, Class Counsel, and any Players
Union, within ten days of the date of such disapproval, and
in such event such Prior Club shall have the same rights to
the services of such player that the New Club would have had
under such Player Contract; and

~8~

(ii)

within twenty days of the date of

such disapproval, any such player shall have the right to
void any such Player Contract, whether such contract was
assumed by the Old Club or not, by notice to the Old Club or
New Club, which clubs shall notify Class Counsel and any
Players Union of such election as soon as possible but in no
event no later than one day after receiving such notice (in
the event the player voids such Player Contract, the player
shall return to the Team any compensation received
thereunder); and any such player shall have such further
relief as determined by the Court pursuant to the pending
motions in White and McNeil.
(iii)

in the event that a player voids a

Player Contract pursuant to subparagraphs (c) (ii) above,
such player shall not be entitled to assert any claim
covered by the releases and covenants not to sue set forth
in Article XIX (Releases and Covenants Not to Sue) that
arise out of such Player Contract after the date of such
election; and
(iv)

in the event that a player elects

not to void a Player Contract pursuant to subparagraph
(c) (ii) above, such player shall not be entitled to assert
any claim covered by the releases and covenants not to sue

182

set forth in Article XIX (Releases and Covenants Not to Sue)
that arise out of such Player Contract.
2.

In the event that this Agreement receives

Court Approval but such approval is invalidated by any
appellate court on or after September 1, 1993:
(a)

this Action and the Related Litigations

shall be reinstated to the status quo ante that existed in
such actions prior to January 6, 1993;
(b)

all Player Contracts entered into prior

to such date of such disapproval shall remain in full force
and effect and shall be binding on all Parties;
(c)

a player with a Player Contract referred

to in subparagraph (b) above shall not be entitled to assert
any claim covered by the releases and covenants not to sue
set forth in

Arti~le

XIX (Releases And Covenants Not to Sue)

that arises out of such Player Contract, for conduct prior
to such disapproval consistent with the express terms of
this Agreement.
3.

(a)

If at any time after Court Approval

during the term of this Agreement, any provision of the
Agreement is enjoined, declared null and void, rendered
unenforceable or otherwise invalidated by a court of

183

competent jurisdiction, and such

cO~~~'s

order having become

final and all appeals through the Court of Appeals having
been exhausted, the provision in question shall be severed
from the Agreement, and the remainder of the Agreement shall
remain in full force and effect.
(b)

Notwithstanding anything in subparagraph

(a) above, either the NFL or Class Counsel shall have the
right to terminate this Agreement if one or more of the ·
following provisions is rendered invalid, null and void, as
unenforceable:

(1) Articles IV, VII, X-XIV, XVIII, XIX, and

XXIV, or (2) the provisions relating to the maintenance of a
mandatory settlement class under Rule 23 (b) (1).

If eithe'r

the NFL or Class Counsel wishes to exercise its option to
terminate, it may do so by serving upon the other parties
written notice of termination within 30 days of the date of
such determination and any appeals relating thereto.
4.

If at any time the conditions of Article XIV

(Enforcement of Anti-Collusion Provisions), subparagraph

o

12(a), (b) or (c) are satisfied, Class Counsel shall have
the right to terminate this Agreement.

To execute such a

termination, Class Counsel shall serve upon the NFL written
notice of termination within thirty days after the Special
Master's report finding the requisite conditions becomes

•
184

final and any appeals therefrom to the District Court have
been exhausted.

The Parties agree, however, that such

termination shall be stayed if any Party appeals such
finding to the Court of Appeals.

All Parties agree to seek

and accept expedited review in any appeal of a collusion
determination, with all the procedural limitations thereof.
Thirty days after any expedited review by the Court of
Appeals, and in the absence of a stay by the

u.s.

Supreme

Court within ten days thereof, the termination shall be
effective, unless the Parties agree otherwise.

The Parties

shall confer in person or by telephone during the thirty day
period to attempt to resolve the dispute.
5.

In effectuation of this Agreement, in the

event that a majority of NFL players have not decided to be
represented by a Players Union or a CBA is not executed by
the time of Court Approval, Defendants shall have the option
to terminate this Agreement and the parties will return to
the status quo prior to this Agreement, under the same terms
and conditions as if Court Approval had been denied at such
time.
6.

If this Agreement is terminated after the

Closing Date, the following rules apply:

185

(a)

the waivers, covenants not to sue, and

releases of claims for past injuries fram August 31, 1987
through the end of the 1992 League Year set forth in Article
XIX (Releases and Covenants Not To Sue) shall remain in
effect, and all settlement payments shall continue to be
paid pursuant to Article XII (Settlement Payments)
notwithstanding such termination, except that the

o

$115,000,000 in payments for Class Members shall be
proportionately reduced by the fraction of terminated League
Years set forth in Article XXV (Term of Agreement), divided
by seven;
(b)

Class Counsel, the Players Association,

any Players Union, and all Class Members may not assert any
clatm against Defendants for any conduct engaged in prior to
such termination that was pursuant to and in compliance with
this Agreement; however, nothing in this Agreement shall
preclude or limit the right of Class Counsel, the Players
Association, any Players Union, or any player to commence
any new action with respect to any claims arising after such
termination or against any conduct or threatened conduct of
Defendants after termination;
(c)

all Player Contracts that were entered

into prior to such termination pursuant to the ter.ms of this

•
186

Agreement, and all assignments of such contracts, shall be
deemed to be valid and enforceable, notwithstanding the
termination of this Agreement; and
(d)

this Action shall be maintained solely

for the purpose of enforcing claims of violations of this
Agreement arising prior to its termination.
7.

Any failure of the NFL, Class Counselor any

Players Union to exercise its right to terminate this
Agreement with respect to any League Year in accordance with
this Article shall not be deemed a waiver of or in any way
impair or prejudice any right of any such party, if any, to
terminate this Agreement in accordance with this Article
with respect to any succeeding League Year.
8.

In the event that a CBA is not ratified by

the membership of the National Football League Players
_~sociation

("NFLPA") pursuant to the NFLPA's Constitution

and By-Laws, Defendants shall have the option to terminate
this Agreement.

The Defendants may exercise such option to

terminate between December 1, 1993 and December 10, 1993 but
such termination will not take effect until February 19,
1994.

The NFLPA shall use its best efforts to complete the

ratification process within forty-five (4S) days after a CBA
is signed and will inform the Defendants, in writing, of the

187

results of any ratification proceedings within five (5) days
after the results are known.
9.

In no event shall any of the funds specified

to be paid pursuant to Article XII (Settlement Payments) be
distributed from the Fund until the CBA has been ratified.
If Defendants exercise their option to terminate this
Agreement in accordance with these provisions, all monies in
the Fund, including accrued interest and investment earnings
but less expenses and fee of the Receiving Agent, shall be
returned to Defendants within three (3) business days after
such option is exercised.
10.

In the event ratification of the CBA has been

rejected and the Defendants terminate this Agreement, the
Parties will return to the status quo existing prior to the
execution of this Agreement under the same terms and
conditions, as if Court Approval had been invalidated
pursuant to paragraph two (2) of this Article.

XXVII.

GOVBRNI:NG LAW

To the extent that federal law does not govern the
implementation of this Agreement or of the Final Consent
Judgment, this Agreement and the Final Consent Judgment

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188