Brady et al v. National Football League et al

Filing 46

EXHIBIT re 4 Memorandum in Support of Motion, by Tom Brady, Drew Brees, Vincent Jackson, Ben Leber, Logan Mankins, Peyton Manning, Von Miller, Brian Robison, Osi Umenyiora, Mike Vrabel. (Berens, Barbara)

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!N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT CF MINNESCTA
FOURTH DIVISION
- - - - - - - - - - - - - - - - - - x

REGGIE WHITE , et al.,
Plaintiffs,

Civil Action
No. 4-92-906

vs.

NATIONAL FOOTBALL LEAGUE, et al.,
Defendants.
- - - - - - - - - - - - - - - - - - x

DECLARATION OF PAUL TAGLIABUE
1.

I am Commissioner of the National Football

League ( the "NFL" or "League"), a position I have held
since November 1989. Prior to my appointment as Commissioner , I was an attorney in private practice representing the NFL in a wide variety of matters from 1969 to
1989. 1 make this declaration in support of final court
approval of the Stipulation and Settlement Agreement (the
"Agreement ").

I also respectfully refer the Court to my

earlier declaration , made in support of preliminary court
approval of the Agreement , which is equally relevant here
and is incorporated herein by reference.
2.

I was primarily responsible for negotiating

the Agreement on behalf of defendants , the NFL and its 28

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member clubs under the direction of The _xec•utive Ccsmi_-

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tee of the VFL management Council i"CEC").
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mate and detailed knowledge of both the terms of

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Agreement and the nature and substance of the negotiations leading up to the Agreement. Having been a principal in the negotiation of the Agreement, I believe very
strongly that the proposed settlement is fair, reasonable , and adequate.
THE CHALLENGED TERMS OF THE AGREEMENT
3.

I understand that a relatively small number

of players and agents have lodged objections to various
provisions of the Agreement. In each case, these objections are directed at provisions that the clubs deemed
essential, and without which, the players would not have
received from the NFL any form of free agency, other
structural relief, or monetary payments. These provisions include those relating to the College Draft, Restricted Free Agents, Franchise and Transition Players,
the Final Eight Plan, and the Salary Cap. I respectfully
submit to the Court that the NFL would not have agreed to
settle this litigation without these provisions.
4. The NFL's principal motivation for entering
into this proposed settlement was to achieve long-awaited
labor and litigation peace. After a bitter 5 1/2 year
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battle with N FL players, the Agreement_, when viewed as a

whole, represents an arm's :ength and hard-bargained
accommodation of the often divergent needs, interests,
and perspectives of the League and its various :ember
clubs, on the one hand, and of NFL players, on the other.
5.

indeed, the League and the NFL players, as

represented by Class Counsel, have different views as to
the purpose and need for rules which govern player allocation and movement in the NFL. Similarly, the parties

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are not in agreement with respect to the monetary damage,
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if any, that restraints on player movement may or may not
cause or have caused. As such, the Agreement must, of
necessity, reflect a compromise between the parties with
regard to these issues, among others.
6. As the Court knows, the NFL believes that
significant movement of the better players in an unconstrained manner will substantially reduce the League's
competitive balance, disrupt team continuity, and ad-

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versely affect the quality of the NFL's entertainment
product. To the extent that rules governing player allocation and movement prevent these effects, they are procompetitive, because they enhance the League's ability to

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compete with other forms of entertainment. In addition,
such rules lead to higher League revenues which, in turn,
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result in higher player salaries and greater financial
stability for the League and its member :tubs.
7. From the NFL's perspective, :he Agreement
is intended to meet the NFL's interest in preserving
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competitive balance , the high quality of its entertainment product , fan interest , and team and League—wide

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stability .

To that end, the Agreement contains certain

provisions designed specifically to achieve these goals.
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Such provisions include : ( 1) rules governing the selection and signing of college and other amateur football
players ; ( 2) restrictions on player movement during the
first four or five years of a player's career ( depending
on whether the Salary Cap has been triggered ); ( 3) provisions regarding the designation of Franchise and Transition Players ; ( 4) the Final Eight Plan ; and (5 ) the Salary Cap.
The College Draft
8. The college draft is one of the central
provisions in the Agreement .

The college draft is the

mechanism by which incoming player talent is distributed
among the NFL clubs .

Each club receives one selection in

each round of the draft; clubs with the worst records the
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preceding season are given the first choices in each
round. It is my understanding that every professional
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sports league has had a draft, organized in essert:ally
the same :canner, since at Least .he 1960s.
9. The NFL believes that the draft mechanism
is absolutely essential to its ability to maintain competitive balance because it: U) provides all NFL clubs
access to the most talented incoming players on comparable terms prior to each new season, and (ii) provides the
weaker teams with a better opportunity to improve themselves by according them the highest selections in each
round.
10. The draft contemplated by the proposed
settlement is the least restrictive in League history.
The draft, which was twelve rounds under the 1977 and
1982 Collective Bargaining Agreements, has been reduced
this season to eight rounds. This modification is again
the product of compromise between the League and NFL
players. The eight-round draft still provides for the
equitable distribution of rights to the best college
players, thereby furthering the pro-competitive effects
of competitive balance, while providing a larger number
of entering players with the opportunity to market their
services to clubs of their own choosing. The League's
willingness to agree to a less comprehensive drafting
mechanism is a reflection of its strong desire to reach
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an accord with NFL players, and of other provisions of
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the Agreement.

11. The proposed settlement also provides for
a so-called "entering player pool” from which all drafted
players are to be compensated. Incoming players will
negotiate their salaries individually within the pool;
thus, the entering player pool does not represent a wage

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scale. The total amount available in the pool for 1993
is the average of the total amount spent on drafted play-

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ers in the first eight rounds over the past three sea'

sons. The pool will be adjusted annually to account for
any increases in League revenues, and it can never decline in absolute dollar terms from year to year.
Restricted Free Agency
12. Certain class members have also objected
to the "restricted free agency" provisions of the proposed settlement. Under these provisions, players with
more than three but less than five (less than four in a
"capped" year) seasons of accrued service whose contracts
have expired are designated "Restricted Free Agents."
Clubs may retain first refusal and compensation rights as
to such players by making contract offers of specified
amounts -- in general, the higher the offer, the greater
the rights acquired. With the limited exceptions dis6

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cussed below, all players with expired contracts become
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(or, in "capped" years, fifth) season.
13. Under the terms of the proposed settlement, a Restricted Free Agent is permitted to makee: his
services to other teams but, if another club makes him an
offer, the player's club has the right to match the competing offer. Alternatively, the club will receive draft
choices to compensate it for the loss of a valuable player. Either way, by ensuring that clubs have the ability
to seek to maintain their own playing talent, or to receive compensatory playing talent in the event they were
to lose their player, the restricted free agency provisions protect the ability of individual clubs to remain
competitive, and the ability of the League to remain
competitively balanced.
14. In my opinion, the rules limiting the
movement of restricted free agents are eminently reason-

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abl*. As an initial matter, these provisions affect a
limited number of players -- in seasons where no Salary
Cap is in effect, players with more than three but less
than five years of accrued service, and, in "capped"
seasons, fourth-year players only. In addition, the
restricted free agents are entitled to seek offers and
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negotiate with multiple :earns (as many such players are
c~rrentiy doing). They are required to receive
salary tenders in order for rights of first .efusa: or
compensation to be maintained; and the maximum drat_
choice compensation to a club in the event it does not
re-sign such a player -- one first round draft choice and
one third round draft choice -- is less than the two
first round draft choices provided for under the prior
system.
15. The restricted free agency provisions are
obviously vital to the League's ability to maintain competitive balance, team continuity, and quality of play.
Fourth and fifth-year players are generally key contributors to a club's success, having spent much of the first
three years learning the club's system and honing their
skills; in this respect, limiting their ability to change
teams preserves the balancing effects of the draft.
16. The right of first refusal and compensation provisions attaching to Restricted Free Agents also
strikes a balance between the NFL's goals in maintaining
competitive balance, team continuity, and quality of
play, and the players' interests in greater mobility.
while it is true that these provisions are designed to
protect and promote the League's legitimate business
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interests, rights of first refusal and the relaxed com-

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pensation rules provided for order

themselves, have not deterred :ompetitive bidding. indeed, to date, at least eight players subject to these
provisions with fewer than five years of NFL experience
have received offers from other teams of which five offers were matched, and three were not.
Franchise and Transition Player Designations
17. A very strong concern of the clubs in an
environment of substantial unrestricted free agency was
their ability to retain certain key members of their
playing squads. The NFL and its clubs felt this was
necessary for several reasons; to preserve competitive
balance by insuring that even the weaker or less wellfinanced teams could retain their top players; to preserve a degree of squad continuity; to maintain the quality of the League's entertainment product; and to maintain fan support, which often turns on whether certain
players remain with the team.
18. In response to these concerns, the Fran-

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chise and Transition Player provisions were developed.
Under the terms of the Agreement, each team is able to
designate a specified number of its "star" players -precisely the type of players that the Eighth Circuit
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as a legitimate 1nCeres: :z rest:._:. .^. g -- as :.ee

team's Franchise or '"ransit.:n ?Layers.
19. The Franchise Player provision of the
proposed settlement allows each club to restrict one
critical player each year of the Agreement. This provision allows both the club and, more importantly, the
fans, to be secure in the knowledge that a chosen star
will remain with the team from year to year. Should the
club ever choose to withdraw the Franchise Player designation, the player in question would immediately become a
free agent. The Franchise Player designation was intended to be separate and apart from the Transition Player
designation. The clubs felt it was critical that at
least one key player (in fact, because NFL teams play
with separately comprised offensive, defensive, and special team units, the clubs had sought to have the right
to designate more Franchise Players and at differently
defined salary levels than the Agreement provides) would
be assured of being with the team in the following season.
20. We emphasized during the negotiations that
a right of first refusal alone would not be an adequate
substitute for the Franchise Player rights. First, a
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right of first refusal =would not eliminate the prospect
of a "blockbuster offer" being tendered by a bet_erfinanced rival. in such a circumstance, the o:d _::;b

could be weakened in either possible scenario; either the
club would :ose its Franchise Player to a rival team, or,
if it decided to match the offer, the club might have to
forgo its opportunity to sign other players. In many
cases, team development, planning, and player selection
efforts over a period of years could be negated or seriously undermined if a club were unable to retain the
services of a critical player on one of the core units of
its team. Second, in years in which a Salary Cap is in
effect, a right of first refusal alone would be unavailing and unfair both to the old club and to the other
players on the club's roster. The old club may :ind
itself unable, because of the cap, to retain a critical
player on one of the core units of its team. Alternatively, the club's other players may find their own salaries reduced because the club must pay an exorbitant
amount to retain its Franchise Player while still complying with the Salary Cap requirements. In all cases, the
individual club's ability to remain competitive is hindered. For these reasons, the League and the clubs felt
it was important that there be at least one player as to
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whom each team held exclusive negotiating rights, :hough
at "pegged" star salary leve:s subject to free acen__r
market indexing, and the Agreement reflects .his =ompromise.
21. The Franchise Players are not unreasonably
restrained as a result of their designation, and they
will not be limited to employment opportunities or salary
levels that are unfair, arbitrary, or unbalanced in relation to the employment terms or salaries of players not
so designated. For instance, while the Franchise ?layer
is restricted from negotiating with other teams, he is
also, under the terms of the Agreement, guaranteed to
earn at' least a salary amounting to the greater of: (1)
the average of the five highest paid players at the designated player's same position, or (2) a 20% increase
from the designated player's previous year's salary.
Thus, the Franchise Player will automatically qualify as
one of the highest paid players at his position in the
entire League and his salary for successive seasons will
be linked, under a generous and realistic guideline, :o
the salaries of other players of equivalent skill, ability, and length of service.
22. The objectors also seemingly ignore the
fact that the required tender that must be made to the
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Thus, .: is most _,nkely, ; ven _ne

undeniable bargaining power that these star =:avers have.
that the Franchise Player provisions of the proposed
settlement will, in any way, unfairly limit the earning
potential of Franchise Players.
23. Under the terms of the proposed settlement, clubs may also designate two Transition Players
this season, one Transition Player next season, and one
Transition Player in 1999. In addition, clubs may designate one additional Transition Player in lieu of naming a
Franchise Player. Transition Players, like Restricted
Free Agents, are free to market their services on a competitive basis to all clubs; their old clubs maintain
only a right of refusal and no compensation rights.
24. The purpose of the Transition Player provision is to allow clubs to ameliorate the disruptive and
potentially destabilizing effects of the transition from
the prior NFL player employment terms to the terms of the
proposed settlement by entitling clubs to designate a
limited number of their most important players and to
give the clubs the choice of whether to retain such players for the highest price the market will produce.
25. The Transition Player provisions of the
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proposed settlement do not and cannot
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the employment opportunities or saiares of a player so
designated. Under the terms of the Agreement, a Tarsi:ion Player is entitled to earn at least a salary amounting to the greater of: (1) the average of the salaries of
the ten highest paid players at the designated player's
same position, or (2) a 20% increase in the designated
player's previous year's salary. Again, these provisions
automatically guarantee that the player will be among the
highest paid at his position in the League.
26. In addition, the right of first refusal
provisions applicable to Transition Players are not unduly restrictive, or discriminatory, or arbitrary in relation to either the overall terms of the proposed settlement or the provisions applicable to other players similarly situated. Currently, for example, the Transition
Players are negotiating in a marketplace in which total
club salaries and player expenditures are "uncapped." :n
future seasons, as the rights of the clubs to designate
Transition Players become increasingly more limited and
are eventually unavailable, "cap" provisions may or may
not be applicable. In any event, in the short period
since the Agreement took effect on February 26, of the
sixteen Transition Players whose contracts have expired,

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at least three have received offers from other teams, and
one Transition Player has contracted with a new ---i

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changed teams. It is realistic to expect .^at addi__or.ai
players will similarly obtain new empioyment prior to .e
1993 season under the Transition Player provisions.
The Final Eight Plan
27. Under the terms of Final Eight Plan, the
top eight clubs in the prior season's playoff and championship competition are limited, for reasons of _ompititive balance, in the number of top free agents they may
sign; the remaining twenty clubs are free to sign as many
free agents as they wish. These provisions are, however,
qualified by a number of carefully-designed and negotiated limitations. First, the rules allow the top clubs to
sign free agents to replace any they may have lost. The
obvious rationale for this term is that, while dominant
clubs should not be able to stockpile additional top
talent, they should not be unduly limited by their past
success in their efforts to maintain the quality of their
team and to replace key losses of playing talent. Second, the Final Eight provisions apply only in years --

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such as the current year -- in which no Salary Cap is in
effect; the provisions do not apply when a Salary Cap is
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clubs. Obviously, these terms also reflect give-and-take
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and comprcmise in the negotiations leading to tae proposed settlement. The terms are rooted in. require-rents
of competitive balance, and recognize the competitive
playing field advantages that could be obtained by a
dominant team in signing additional top playing talent in
an unconstrained or "uncapped" marketplace. As the Court
is aware, concepts of this type were presented on behalf
of the plaintiffs in the McNeil case in support of their
contention that alternative, less restrictive systems
could be implemented to accord players broader negotiating opportunities while preserving the competitive balance interests of the NFL member clubs. As noted above,
in "capped" years of the Settlement Agreement, the clubs
have agreed to terms regarding free agency that do not
involve the provisions of the Final Eight Plan on the
premise that the equal amount of salary "room" under the
cap available to all clubs will then make it unlikely
that any club -- even "winning" teams -- will be able to
secure an unfair c~ Dmpetitive playing field by signing

free agent players under those conditions.
28. The Final Eight Plan also seeks to protect
the quality of the League's product by placing limits on
the ability of the upper echelon teams from using their
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success to strengthen :herselves fur:her. :n shor:, :his
provision is designed to prevent me:nner ___bs frcm
Lizing the :mechanism of liberalized free acency :o bui:d
dominant teams -- capable of dinning championships year
after year. At the same time, the provision assures that
free agent players will nonetheless have a large :cumber
of teams in the marketplace from which to solicit offers.
It also forces free agents to consider offers from weaker
teams, thereby helping to distribute available free agent
talent on a more widespread and equitable basis.
The Salary Co
29. The Salary Cap provisions of the proposed
settlement are quite complex and will only briefly be
summarized here. First, the cap is not "triggered" until
player costs exceed 67 percent of "designated gross revenues," as that term is defined in the Agreement. Second,
once the cap is triggered, it begins at 64 percent of
designated gross revenues and never falls below 62 percent. And, third, in all "capped" years, there is a
guaranteed League-wide salary of 58 percent of designated
gross revenues and a minimum team salary of 50 percent.
30. The Salary Cap was also designed with
considerations of competitive balance in mind. As indicated above, the Salary Cap is intended to limit the
17

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ability of the more suc_essfui and better situated clubs
:o acquire a dispropor:ionate n mber of :e 'r.igr.es:

priced players. In addition, the Salary Cap is desicned
to promote (though not assuring) the continued financial
stability of the League and its 28 member clubs. This
will, in turn, benefit not only the clubs themselves, but
also the players, and most importantly, the customers and
consumers of the NFL's "product" (the fans). At the same
time, neither the Salary Cap itself nor the other provisions of the proposed settlement will necessarily ensure
the continued financial stability of each of the 28 member clubs nor ensure the clubs against losses or other
entrepreneurial risks in the highly competitive sportsentertainment marketplace in which they operate. Indeed,
while they support the proposed settlement, a number of
NFL clubs view its terms as involving both new and substantial risks to their continued successful operation
and as a risky alternative to other player employment
systems that might lawfully be implemented and maintained
under the federal labor and antitrust statutes. Acceptance of these risks was, however, another element of the

t`

compromise that resulted from the intensive, arm's length
negotiations that produced the proposed settlement.
31. As with the other challenged provisions of
18

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the proposed settlement, the objectors fail to acknowi-

i
edge the above-mentioned pro-compel:__ve be.ie :s c.f _ e
ri

Salary Cap and overstate the effects of any cap on salaries. Indeed, salaries must increase from their c-rren:
levels before the cap is triggered and, if revenues continue to rise, the opportunity will remain for further
increases.
32. The recent free agency experience of Beggie white serves as a useful example of how the Final
Eight Plan, working in conjunction with the prospect of a
Salary Cap, was designed to work and will, in fact, ooerate. Because Mr. White desired a multi-year contract and
expected to be paid at unprecedented levels, I believe
that the expectation of a Salary Cap for next year, as
well as the competitive balance limitations applicable to
the "winning" clubs under the Final Eight Plan, gave the
Green Bay Packers an advantage over various other clubs
in structuring multi-season contract terms attractive to
Mr. White. This example demonstrates how the Stipulation
and Settlement Agreement serves to promote competitive
balance and equitable competitive conditions within the
League and among teams operating in broadly varying circumstances.
33. For all of the above reasons, I firmly
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believe that the above-referenced provisions of the
Agreement constitute a reasonable accommodation of :e

often divergent needs and in:eres:s of the parries.
THE :.:CENS:NG LITtGAT?ON
34. The Philadelphia Eagles have also ob:ected
to the Agreement. As an initial matter, I believe that
the Eagles challenge to the proposed settlement violates
the express terms of the Stipulation and Settlement
Agreement (Article III, 1 1).

In addition, under the

Articles of Association and Bylaws of the NFL Management
Council and several resolutions adopted by the NFL member
clubs, the Eagles are bound to the terms of the Stipulation and Settlement Agreement, and are not entitled

now

to object to the Agreement. Those resolutions, attached
hereto as Exhibits A and B, demonstrate that the NFL
member clubs, including the Eagles, voted to delegate
complete authority to the NFL Management Council Executive Committee (the "CEC") to conclude a settlement of
the labor-related litigations, and that the CEC properly
exercised its authority under that delegation to approve
the proposed settlement here.
35. Many of the assertions made in the Eagles'
submissions objecting to the proposed settlement are both
misleading and inaccurate. The Eagles fail to state that
20

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=hey have an ongoing disagreement with the CEC regarding
tae compensatory draft selections that are to be prvided
to clubs who may "lose" the services of certain vaned
plaintiffs :urrently or in the future. The Eagles are
also demanding compensatory draft pick selections in
return for the club's "loss" of Keith Jackson, a player
who

was

released pursuant to this Court's order in Jack-

son v. NFL. If it were not for these ongoing disputes,
the Eagles' objections to the proposed settlement would
not have been filed.
36. At all times during the course of the
settlement discussions relating to this case, the NFL
Licensing litigation (hereinafter the "NFL Properties'
cases"), and various other related litigation, the League
has kept all of its member clubs well-informed. There
were a number of League or Management Council meetings in
1991, 1992, and early 1993 at which the clubs were given
in-depth and detailed reports on the status of these
settlement negotiations. These included regular sessions
of annual League or Management Council meetings in October 1991, and March, May, and October 1992, as well as
special League or Management Council meetings in (among
!•

others) July, September, and December 1992, and January
1993. with respect to the settlement of the NFL Proper21

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ties' cases, in particular, Mr. Braman, the Eagles' owner, was kept apprised in depth of the status of these

;

negotiations by executives of the League, the Management
Council, and NFL Properties, because, among other tni^Cs,
he served at all relevant times as the Chairman of the

•

Executive Committee of NFL Properties and was actively
involved for many months in proposing and evaluating

•

financial, licensing, and other terms for the settlement
of the NFL Properties

•

'

cases.

37. NFL Properties is an entity owned by the
28 member clubs of the NFL. Its principal business is

•

the licensing of the names, logos, uniform designs, and
other identifying marks of the NFL (the "NFL Marks") for
use in promotions and on licensed retail merchandise.
The origin of the claims in the NFL Properties' cases
dates back to the late 1980's and 1990, when NFL Properties made certain changes in respect of player licensing
programs and expanded its business to include programs

in

which it would license the right to use the images,
names, signatures, and other publicity rights of NFL
players along with the NFL Marks. Essentially , the NFL

I.

Properties' cases involve allegations that NFL Properties ' business decision to expand into the player licensing business unlawfully interfered with NFLPA existing
22

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player licensing rights and to license their -ig:.=s to
H

:hid parties.
38. As part of the agreement in principle to
settle the NFL Properties' cases, the NFL, without admi_-

•

ting liability, has agreed (i) to pay the plaintiff NFLPA
$10 million; (ii) to sublicense certain of the contested

•

players' rights back to the plaintiff NFLPA; and (iii) to
assign to the NFLPA certain licensing agreements with

•

manufacturers that had licensed players' rights from NFL
Properties.
39. Mr. Braman has commented to me, or in my
presence, on the proposed terms of the NFL Properties'
settlement and, indeed, has strongly supported such a
settlement. Specifically, Mr. Braman has stated that:
(i) the football "card business" may well have peaked and
may not continue to be attractive for NFL Properties;
(ii) that the settlement contemplated was a very fair
arrangement with the NFLPA; and (iii) that, as Chairman
of the NFL Properties Executive Committee, he was satisfied that the proposed settlement would serve the interests of the member clubs, NFL Properties, the League, and
the players.

23

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40. Despite Mr. Braman's effor ts to secure .:- e
licensinc settlement, the Eagles have objected _o the

contemplated settlement of the NFL Propert:es cases
claiming that such settlement will preclude NF:. Proper'ties from competing in the player licensing business and
will give the NFLPA the exclusive right to license NFL
•

player identities in the future. Such claims are simply
wrong.
41. NFL Properties will continue to market NFL
Game Day and Classic NFL Pro Line Collection trading
cards for the foreseeable future in order that it may
recoup certain substantial expenses incurred in obtaining
player licenses and in continuing to perform certain
player agreements. In any event, through the NFL Quarterback Club, NFL Properties will continue to represent
up to 40 of the star players in the League with respect
to individual and group retail licensing opportunities.
Thus, the terms of the contemplated settlement do not
require NFL Properties to "exit" the player licensing
business.
42. Contrary to the assertions made in the
Eagles' submission objecting to the proposed settlement,
the NFL, as part of the contemplated settlement of the
NFL Properties' cases, did not agree to refrain from
24

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competing with the NFLPA f or rights to :.izense group
player identities, either when :ae NFLPA 7ie•+e3 .:se:.: as

a trade association or subseq •:: ently. Further. =here is
no provision in the proposed settlement that could pre~

vent other companies from competing with the NFLPA or
the right to sell players' publicity rights. while the
League is aware that the NFLPA will attempt to bargain
collectively on behalf of the players in its unit for the
right to be the exclusive group licensing agent of NFL
players , the NFL has not to date reached such an agree-

" ment and we recognize that any such arrangement crust be
concluded

i

n the context of collective bargaining. in-

deed , past collective bargaining agreements in the NFL
have addressed player licensing issues and representatives of the National Labor Relations Board have opined
that such matters are mandatory subjects of bargaining.
Thus, while the NFLPA may pursue such an agreement in
collective bargaining , it is not part of the settlement
negotiated with regard to settlement of the NFL Proper-

ties

'

cases.
43. For these reasons , I submit that none of

the Philadelphia Eagles' objections to the Agreement has
merit, and none warrants the disapproval of the Agreement.
25

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=ORMAT:ON OF THE •NtON
44.
which th e

?rior to January 6. :.333, :e iate cr.

parties reached a tentative a greement to se'_t.e

n
this action and a host of related litigation, Class Counsel, as well as representatives of the NFLPA (particu:arly Messrs. (Jpshaw and Berthelsen) who consulted with
Class Counsel, consistently maintained that they would
not collectively bargain with League representatives.
They similarly maintained that the NFLPA representatives

•

were no longer authorized to collectively bargain on
•

behalf of NFL players and that no meeting or negotiation
aimed at settling this and related litigation could,
under any circumstances, be construed as collective bargaining.
45. After agreement in principle was reached
on January 6, the NFL and NFL clubs were informed that
the Board of the NFLPA had voted to attempt to constitute
itself as the exclusive collective bargaining represer.ta-

•

tive of NFL players. Thereafter, NFLPA officials informed League representatives, including myself, that it

•

had begun to collect authorization cards from NFL players
in an effort to constitute itself as the sole and exclusive bargaining agent of all present and future NFL play-

26

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rat;d

ers. At no time during this process id the F. imoroper:.y assist the NFLPA.
46. By letter to me dated, March 23, 1993,
Richard A. 3erthelsen, General Counsel of the NFLPA,
officially informed the NFL that "(a] majority of the
players on 1992 season-ending rosters have now signed
cards authorizing the NFLPA to represent them for purposes of collective bargaining." See Exhibit C attached
hereto. At that time, Mr. Berthelsen requested that the
NFL voluntarily recognize the NFLPA as the exclusive
collective bargaining agent for NFL players. After confirmation of the authenticity of the cards by an independent entity (the American Arbitration Association), the
NFL voluntarily recognized the NFLPA as the exclusive
collective bargaining representative of NFL players by
letter dated, March 29, 1993. See Exhibit D attached
hereto.
47. At no time during the NFLPA's efforts to
constitute itself as the collective bargaining representative of NFL players, did the NFL, or any of its member
clubs, take any action to hinder or support the formation
of the players' union. The NFL has always recognized
that the decision whether or not the NFLPA should be the

27

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players' collective bargaining representative was solely
p to the players.
PRESEASON ?AY

48.

I am also aware that the law firm of Yab-

lonski, Both & Edelman ("Yablonski") filed various ob4ections on behalf of a handful of players to preliminary
approval of the settlement agreement. Even though they
have not filed objections to the final approval -- indeed, the named plaintiffs in the Tice case have settled
their claims -- I want the record to reflect certain
errors in the Yablonski factual assertions.
49. As I noted in my earlier declaration,
negotiations over a possible global settlement of the
labor dispute between the NFL clubs and NFL players were
conducted intermittently over the 5 1/2 years preceeding
the execution of the Agreement. The most serious and
intensive of these negotiations began shortly before the
start of the McNeil trial and continued during and after
the trial.
50. During these negotiations, I advised the
players' representatives (including Messrs. Quinn,
Kessler, (Jpshaw, and Berthelsen) on numerous occasions
that the NFL was negotiating with the expectation that
such discussions would lead to a global litigation set28

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clement -- one that would encompass all systemic cha:lenges to the NFL's rules governing player se . ec_'.or. and
retention and to the NFL Player Contract.

:n par:ics:ar,

I made clear that any settlement would have to incl de
•

all claims for damages based on NFL preseason pay policies of the kind asserted by plaintiffs in Tice v. Pro

•

Football, Inc., Civ. No. 91-2314 (D.D.C.), a case thenpending in the federal district court in the District of

•

Columbia.

As a result of these statements, which plain-

tiffs' representatives acknowledged and with which they
•

agreed, negotiations proceeded on the basis that resolution of the preseason pay dispute was a sine o'ua non of
any agreement.

(When certain other claims by developmen-

tal squad players were adjudicated in a jury trial

in the

early Fall of 1992, those claims -- and only those claims
-- were exempted from the "global" settlement.)
51.

Throughout our negotiations in late 1992,

I was informed by Class Counsel and the players' negotia•

tors that they would work with Yablonski,

then-counsel of

record for all Tice plaintiffs, and bring about a settlement of the preseason pay dispute within the context of a
contemplated global settlement.
•

I was also assured that

there were no insurmountable problems to resolving the
preseason pay dispute as part of the larger settlement.
29

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I received such assurances at east through January 3-6,
1993, when representatives of the parties net with :::is

Court and then reached an agreement in principle cn setelement terms. This was, obviously, subsequent to Jecem•

ber 18, 1992, the date on which Yablonski informed the
NFL, through our attorneys, of its interest in having the

Tice claims excluded from the global settlement.
52. On January 6, 1993, after extensive dis•

cussion, the mutual exchange of substantial concessions
on both sides, and a meeting with the Court concerning
several remaining matters, the parties reached an agreement in principle. Subsequent discussions have resulted
in a fully executed Stipulation and Settlement Agreement.
The Agreement provides for the settlement of numerous
outstanding litigation matters, including claims based on
NFL preseason pay policies.
53. Following the parties agreement in principle on January 6, 1 participated in discussions with
Yablonski regarding the portion of the $115 million in
settlement payments that would be allocated to preseason
pay claimants. For example, I spoke by telephone with
Yablonski on January 22, 1993, and asked League counsel
to confirm in writing the proposal that I had made. In
this regard, I was seeking to facilitate a consensus on
30

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the portion of the agreed-upon settlement payments that
should be accorded :o preseason pay claims. Yabions:
was fully informed about the role I was playing. Powever, because Yablonski ' s valuation of the oreseason oav
claims far exceeded the estimates generated both by :he
NFL and by the players' settlement representatives themselves , I was unable at that time to secure Yablonski's
commitment to the terms that had been agreed upon.
•

54. The players ' representatives have now
concluded that approximately $5 million of the proposed
settlement fund will be allocated to preseason pay claimants , who are represented by plaintiff Dave Duerson in
this litigation .

In contrast to the payments to be made

in connection with claims regarding Plan 9, which payments will be made over a period of years , payments on
preseason pay claims are due to be made promptly, and in
full, immediately upon final Court approval , and the
determination of any appeals therefrom .

Based on my

understanding of the preseason pay claims , my understanding of the claims regarding Plan a and other NFL player
employment practices , the substantial counterclaims associated with the preseason payment claims and the considerable uncertainties and extreme delays that would likely
accompany any attempt to determine damages incurred by
31

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individual preseason pay claimants, : have no doubt :tat
H

this allocation of funds is fair, reasonable , and adequate.
CONCLUSION
55.

•

In sum , nothing I have seen in the way of

objections to the proposed settlement has altered my firm
belief, as stated i n my earlier declaration , that the

•

proposed settlement , in its entirety , represents a fair,
reasonable, and adequate resolution of this labor dig-

•

pute.
56.

I declare under penalty of perjury that

the foregoing is true and correct .

Executed this /1 y

of April, 1993.

Pau T

L_.

32

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