Brady et al v. National Football League et al
Filing
84
Supplemental AFFIDAVIT of Mark J. Feinberg in SUPPORT OF 58 MOTION for Preliminary Injunction (originally filed in 11-748 SRN/JJG on 4/7/11) filed by Obafemi Ayanbadejo, Ryan Collins, Carl Eller, Priest Holmes, Antawan Walker. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Service)(akl)
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ELLER EXHIBIT 1
Eller, et al. v. National Football League, et al.
Civil No. 11-CV-748 (SRN/JJG)
Wednesday, April 6, 2011, 9:30 a.m.
Hearing on Plaintiffs’ Motion for a Preliminary Injunction
Washington
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San Francisco
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New York
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Philadelphia
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London
Antitrust Violation
American Needle—NFL and its teams can conspire to
violate antitrust laws
Group Boycott/League-Wide Lockout
Concerted foreclosure of entire market
Monopoly-Competitors and Players
FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990), bar
association members colluded to stop providing legal services unless
District of Columbia gave them price concessions
League’s “Boycott Insurance”
Washington
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San Francisco
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New York
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Philadelphia
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London
Antitrust Violation-Likelihood of
Success
“Among the practices which have been deemed to be so pernicious as to
be illegal per se are group boycotts and concerted refusals to deal.” –
Mackey, 543 F.2d at 618
Concerted refusals to deal- “an agreement by two or more persons not to
do business with the other individuals, or to do business with them only on
specified terms” – Id.
Group Boycott- generally connotes ‘a refusal to deal or an inducement of
others not to deal or to have business relations with tradesman’” – Id.
Washington
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San Francisco
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New York
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Philadelphia
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London
Antitrust Violation-Likelihood of
Success
“The unique nature of the business of professional
football renders it inappropriate to mechanically apply
per se illegality rules….” Mackey, 543 F.2d at 619.
Rather the appropriate inquiry “is the reasonableness of
the restraint under the circumstances” – Id
Washington
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San Francisco
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New York
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Philadelphia
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London
Antitrust Violation-Likelihood of
Success
“Importantly, this holding [on the nonstatutory labor exemption in Powell] does not
entail that once a union and management enter into collective bargaining,
management is forever exempt from the antitrust laws….” – Powell v. NFL, 930 F.2d
1293, 1303 (8th Cir. 1989).
The League concedes that the Sherman Act could be found applicable, depending
on the circumstances, if a challenged restraint related to a permissive rather than a
mandatory subject of bargaining; if the restraint had been imposed on employees
outside of the collective bargaining process or had not originally been
proposed in good faith; or if the affected employees ceased to be represented
by a certified union. -Powell, 930 F.2d at 1303 n. 12 (emphases added):
“We hold that restraints on competition within the markets for players’ services
fall within the ambit of the Sherman Act” - Mackey, 543 F.2d at 618.
Washington
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San Francisco
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New York
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Philadelphia
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London
Likelihood of Success— Damages Cases
Against League Restraints
Smith (D.C. Cir. 1978) (NFL College Draft)
Kapp (ND Cal 1974) (NFL’s Rozelle Rule, draft and other rules)
L.A. Coliseum (9th Cir. 1986) (NFL rule limiting movement of member
clubs)
NcNeil (D Minn 1992) (Jury verdict against NFL for Plan B rules)
Washington
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San Francisco
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New York
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Philadelphia
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London
Likelihood of Success—Injunctions
Against League Restraints
Bowman (D Minn. 1975) Boycott by NFL against hiring of football players who played
for WFL
Linesman (D Conn 1977) World Hockey Association eligibility rule prohibiting persons
under 20 from playing professional hockey
Denver Rockets (CD Cal 1971) American Basketball Association eligibility rule that
players could not be drafted until they were 4 years out from high school
Mackey (8 Cir. 1976) NFL’s Rozelle rule: team acquiring a player had to compensate the
former team even if the player completed his former contract
Jackson (D Minn 1992) NFL’s Plan B (first refusal/compensation) rules
NFLPA (D Minn 2008) Enforcement of NFL suspension against certain players
Robertson (SDNY 1975) National Basketball Association's player draft, uniform player
contract, reserve clause
White (D Minn 1993) NFL settlement agreement that includes injunctive relief
White (D Minn 2011) Injunction hearing ordered re NFL’s broadcasting deals
Washington
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San Francisco
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New York
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Philadelphia
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London
Antitrust Injury
Three Subclasses:
Rookies
Players
Retirees & Former Players
Relaxed requirements for injunctive relief under Section16 of
Clayton Act (Campos (8th Cir. 1998))
Washington
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San Francisco
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New York
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Philadelphia
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London
Irreparable Injury- Balance of Harm
Rookies
Anticompetitive draft - April 28-30
Loss of opportunity to play and build career
Issue of accommodating successive drafts if no games played in
2011
Retired/Former Players
Loss of Bell/Rozelle Retirement Plan (which DoL has deemed
“endangered”) in the absence of game revenues
Effects on other health/retirement benefits subsidized by team
contributions
Endangerment of Hall of Fame program
Washington
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San Francisco
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New York
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Philadelphia
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London
Choice and Risks
Union
Collective Bargaining
Renunciation of Collective Representation and Pursuit by
interested classes of Claims of Illegal Restraint
The League
Collective Bargaining
Group Boycott – Antitrust Accountability for Illegal Restraint
Washington
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San Francisco
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New York
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Philadelphia
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London
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