Judge Doty: NFL owners' best incentive to settle

Roger Goodell arrives for day of talks that didn't include union.
Roger Goodell arrives for day of talks that didn't include union.
Posted: March 11, 2011

THE PLAYERS' ace in the hole in their snail's-pace labor negotiations with the NFL owners is an 81-year-old ex-Marine captain from Coon Rapids, Minn., with a 28 golf handicap and a fondness for cigars.

He is U.S. District Judge David S. Doty and he is the league's worst nightmare right now. He is the reason the owners haven't told the players to take their open-your-books request and shove it. He is the reason that commissioner Roger Goodell repeatedly mentions that talking is better than litigating.

Because, frankly, if this battle between the owners and players does become a litigation war, it likely will be fought in Doty's Minneapolis courtroom, where the league has won as often as Napoleon at Waterloo.

Doty has served as an arbiter in the league's collective bargaining issues since the early 1990s when he presided over the players' landmark antitrust victory over the league that opened the door for true free agency in the NFL. Since then, just about all of the league-related decisions Doty has rendered have been game, set and match in favor of the players.

In fact, his continued involvement in league matters might be a major sticking point for the owners in these negotiations.

Three years ago, Doty allowed Michael Vick to keep $16 million in roster bonus money from the Atlanta Falcons even though Vick pleaded guilty to federal dogfighting charges and allegedly used some of the money to fund his illegal activities.

Less than 2 weeks ago, he took away the owners' biggest leverage in these negotiations when he ruled that the owners' plan to pocket $4 billion in television money even if there was a season-ending work stoppage violated the league's collective bargaining agreement.

Now, with the clock ticking toward tonight's 11:59 extension deadline and the union's 5 p.m. deadline to file for decertification, the owners must decide between two unappetizing choices: Open their books to the players and prove to them that the league's current business model is out of whack, or risk a long court battle with Doty as the referee.

In what could be an ominous sign, the two sides had no face-to-face meetings yesterday. While the league spent much of the day meeting with federal mediator George Cohen, NFL Players Association executive director DeMaurice Smith and the union's executive committee were gathered at the union's offices two blocks away, waiting to be called.

Shortly after 6 p.m., Smith and his group called it a night and went home, though they were prepared to return if Cohen called them back in.

Before he left, Smith, who doesn't use his Twitter account much, tweeted this message to the league's players: "Players stay strong! Stay informed, update by 2 p.m. tomorrow."

If the players union opts to decertify, it is expected to file an antitrust suit against the league within days of decertification. The league likely would shut down operations - it wouldn't technically be a lockout because you can't lock out non-union workers. The union would then seek to enjoin the league from shutting down.

"I'm struggling to figure out what legal theory [the union] would base their [injunction] request on," said Gary Roberts, dean of the Indiana University School of Law in Indianapolis and one of the country's leading sports-law experts. "But Judge Doty seems to always give them what they want. So who knows how that would play out? From then on, I can't predict."

The owners exercised an opt-out clause in the current CBA 3 years ago, claiming the division of revenue they agreed to 2 years earlier, which gave them $1 billion in cost credits off the top for stadium construction and maintainance and a 50-50 split of the rest of the league's revenues, was unbalanced and one-sided.

The union has asked the owners to prove the deal is out of whack by opening their books and showing them team-by-team financial data. The owners, perhaps wary of revealing how much money they are funneling to Uncle Seymour and cousin Fredrick or how much of the team's money they used to purchase that villa in the south of France, have been reluctant to do that, telling the union it already has more than enough information to see how their profitability is shrinking even at the same time the league's revenues are continuing to climb.

Since agreeing to a 7-day extension last Friday, the owners have given a little bit on their request for an additional $1 billion in cost credits. Another extension is possible if the two sides are able to close the gap more today. If they can't, though, the union will likely decertify and play its hole card: Doty.

"Judge Doty has had - and I can't think of any way to say it without overstating it - he has had a remarkable and extraordinary string of always ruling for the union," Roberts said. "He has given them whatever they've wanted.

"Any case that goes to litigation usually has a plausible argument on each side. But I mean it's almost inconceivable that an objective, neutral judge would rule, in every single case - case after case after case - for the same side when both sides have plausible arguments."

After Doty ruled in favor of Vick in 2008, the league tried to have him removed because of bias. But the 8th Circuit Court of Appeals denied the request and upheld Doty's ruling on Vick.

Roberts said that if the union decertifies, the league could file a declaratory judgment action in another city other than Minneapolis where Doty has been a federal judge for 24 years in order to try to get it out of Doty's courtroom. But Roberts said he has been told that's not something the league is considering.

Roberts suspects that at least as big an issue in the negotiations - maybe even bigger - than reformulating how to split the league's $9.3 billion in annual revenue - is the matter of Doty's continued supervision of a new collective bargaining agreement.

"That's got to be a big issue in the negotiations," he said. "I can't imagine the owners would ever agree to a collective bargaining agreement in which Judge Doty continues to supervise the relationship. That's going to be a real sticking point, because the union is going to want their guy to continue to hear all disputes, which basically means the union wins [those disputes].

"That's not something that has bubbled up into the public as a big issue yet. But before the ink dries on any agreement, the owners almost certainly are going to insist that Doty be out of the picture moving forward."

Send e-mail to pdomo@aol.com.

For more Eagles coverage and opinion, read the Daily News' Eagles blog, Eagletarian, at www.eagletarian.com.

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