If he has his way, owner Mark Davis’s Oakland Raiders will soon become the Las Vegas Raiders. And, not surprisingly, Las Vegas officials would welcome him with open arms. Legislation to provide $750 million in public funding through tourist taxes (of course) sailed at warp speed through state congressional committees and full sessions all the way to the governor’s signature on Monday. Seems like a deal, right? Well, hold the phone on the moving vans. Getting buy-in and public funding from the Nevada legislature (with tourists paying the bill) is one thing; getting approval from the required 24 NFL owners is quite another.
We are only months removed from a relocation process in which Oakland was the third-place finisher in a three-team race for Los Angeles. While the Rams were given the keys to the country’s second-largest market, the Chargers and Raiders were sent back to their substandard facilities with $100 million parting gifts to use toward new stadium deals with city officials. Although both teams have the option of joining the Rams in L.A.—with the Chargers having first option through January followed by the Raiders should the Chargers decline—that is an option no one truly wants. The Rams would prefer the market to themselves, the NFL would prefer the other two teams stay where they are, and the Chargers and Raiders know they would be simply be a reluctant tenant playing second fiddle in the new L.A. stadium being developed by Rams owner Stan Kroenke.
Pending the outcome of a November 8 referendum to fill the funding gap with a tourist tax (of course), the Chargers could remain in San Diego, move to L.A. or start flirting with other cities as has Davis. As for Davis, he is currently operating on a one-year lease in Oakland that can be renewed on a year-by-year basis (Davis would renew the lease while a stadium elsewhere was under construction). And he has not been shy with his relocation interest, talking to city officials in San Antonio as well as Las Vegas. He may well be poised to apply to the NFL for relocation before the January deadline for the second consecutive year.
This potential relocation effort is murkier than the L.A. relocation process, where owners lined up with sentimentality toward the Chargers and the loyal Spanos family, or with a moneyed lean towards the Rams and Kroenke’s $11 billion net worth. The Raiders and Davis appeared to be an afterthought to the discussion. As a potential relocation applicant without other teams involved, Davis will now have to make his case to an ownership group that, while having not ostracized him, has certainly not embraced him. Further, as with any application for relocation, Davis would have to show that he exhausted every effort to work out a stadium financing deal in his home market of Oakland. And last year owners were impressed with Oakland mayor Libby Schaaf when they met with her, despite the city’s limited stadium negotiations.
And we haven’t even mentioned that the destination is synonymous with the previously taboo subject of gambling. Gambling strikes at the heart of the league’s “integrity” mantra, an argument the NFL is using in its vigorous opposition of legalized sports betting in New Jersey. Of course, as noted often in this space, the NFL and its teams are a contradiction in this area: They accept advertising and sponsorship money from casinos, lotteries and Daily Fantasy kingpins FanDuel and DraftKings. And although the NFL is not an equity partner in either company—unlike the other major sports leagues—Jerry Jones and Robert Kraft are early investors in DraftKings. The NFL spins a conflicting web on the subject of gambling (I have advocated for a “Gambling Czar”); a move to Las Vegas would signal that it has crossed the Rubicon to the other side.
Finally, another concern for ownership regarding Las Vegas is, as always, the bottom line. After an inevitable initial honeymoon period in Las Vegas, some owners wonder whether a team could be sustainable in a relatively small market that has a transient and fickle populace. We can certainly expect market feasibility studies as to long-term fan investment into a franchise there. And while there are scores of high rollers in addition to supportive magnates such as Sheldon Adelson and Steve Wynn, Las Vegas is certainly not rife with the Fortune 500 companies that usually purchase luxury suites at NFL stadiums.
Davis can celebrate the stadium funding passage in Nevada. However, remarking about the “proud new home for the entire Raider Nation” is a stretch at this point. There are many obstacles ahead for Davis; his brethren of owners may be skeptical of him, of Las Vegas, or of both.
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LEAGUE OF INSURERS
The NFL’s stated highest priority over the past several years has been clear: player safety. To their credit, the league has been on an upward trajectory since 2009 congressional hearings compared them to the tobacco industry for slipshod concussion protocols. Since then, the NFL has shown better vigilance with rules changes and CBA-mandated restrictions on padded practices, earnestly trying to move past the era depicted in League of Denial and Concussion. However, a constant reminder of that era—the now five-year old concussion litigation against the NFL—continues to linger.
Brought by thousands of retired players, this bulky litigation was tentatively settled years ago with a $765 million cap, later revised to eliminate the Cap and receive final approval from Judge Anita Brody. Although the vast majority of plaintiffs are part of the settlement, there remain “opt-outs” who have appealed to the Third Circuit Court of Appeals (appeal denied) and now to the United States Supreme Court (petitions pending).
Before settling on the $765 million number, the plaintiffs certainly asked for a number in the billions, only to be negotiated downward by a group used to having their way in negotiations. I spoke with lead counsel Chris Seeger about his experience negotiating with owners such as Jerry Jones, who he referred to as a “hard ass.” Seeger recounted: “I think Jones took it as a compliment; you know he’s very Trumpian. I probably could’ve said that about any of the owners.”
Even without a cap on damages paid by the NFL, many have questioned a settlement that should end up costing the NFL no more than $1 billion, roughly $30 million per owner, in a case in which the NFL’s risk of exposure could have been several billion. The reality, however, is that the NFL would have delayed the process for years in litigation while waiting for a completed settlement. Further, there were obstacles for the players such as CBA preemption (requiring the cases to be filed through arbitration) and causation.
“Imagine being a juror in a trial and you want to do the right thing by everybody and you’re hearing evidence that here’s a player who played since Pop Warner and played a lot of rough sports, maybe he wrestled in addition to playing football, things where you bang your head, or maybe played lacrosse, might have gotten hit by the ball,” Seeger says. “There are so many things, and you’re asking a jury to say, ‘O.K., we will hang the price tag of these injuries just on the NFL.”
The NFL leveraged those challenges to forge a favorable settlement that did not require the league to admit any liability, produce one document or take one deposition. That may not be the case, however, in another case regarding the same issue, this in the tricky area of insurance.
As NFL owners have tried to offload payment liability from this settlement to their insurance companies, those companies have argued head trauma to be beyond the scope of coverage, leading to more litigation (of course). That case has now reached an inflection point: The judge has threatened to lift the stay of discovery, an action that would compel the NFL to produce all documents, emails, texts and other communications concerning head trauma and concussions. In an intriguing plot twist, Judge Brody, the presiding judge in the player case, has testified on behalf of the insurers. Judge Brody evidently felt arrogance from the NFL lawyers—she mentioned the NFL saw her as a “lovely little grandmother”—and that may now be coming around to force the NFL to do something it did not have to do in her case.
It will be interesting to see if the NFL moves quickly to settle the case with the insurers, and head off the specter of releasing all communications from an era they would like to forget. Stay tuned for another chapter in this long-running concussion litigation saga: Revenge of the Insurers.
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BRANDT’S RANTS
Speaking of concussions, a final note on the now-resolved investigation into concussion protocol regarding Cam Newton in the season's opening game against the Broncos. After six weeks of investigation from both the NFL and NFLPA, their joint statement endorsed the notion that after medical professionals reviewed the video and observed Newton from the sideline, “no further evaluation was necessary.” Really?
The reigning MVP is on all fours after a vicious hit and is literally steps away from several doctors and trainers, but video evaluation and observation from the sideline is enough? How many of us would accept going to a doctor's office and having him or her look at us from 20 feet away and say “You’re good to go!”
Newton was standing (or kneeling) right in front of them; no one could come out and do an examination? Earlier in the game, Broncos linebacker Brandon Marshall gathered himself on one knee after a blow; trainers were tending to him within seconds. But not Newton? If player health and safety is the priority that the league and union say it is, time of game and importance of player should not matter. It appears that it did here.
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After a report this summer of more than 20 cases of alleged domestic abuse by Giants kicker Josh Brown towards his ex-wife, the story surfaced again this week in documents obtained and shared by SNY. In what are alleged to be Brown’s own writings from 2013, he wrote he had “physically, verbally and emotionally abused my wife.” This revelation once again raises the question of discipline from (1) the Giants, having applied no discipline and re-signed Brown, and (2) the NFL, having applied total discipline of a one-game suspension.
It has been two years since the NFL’s seismic reaction to the Ray Rice video, one that included a new conduct policy unveiled in December 2014 that includes a six-game suspension for a first domestic violence offense. That policy has been dormant since, still yet to be applied even with situations such as Brown. On the Brown matter, sensitive to the criticism upon the reaction of the one-game suspension, the NFL issued a statement saying the primary reason for such light punishment was that they were unable to interview the complaining ex-wife. Really? The reluctance of complaining witnesses to speak up is certainly not uncommon; the league was also unable to interview Greg Hardy’s ex-girlfriend, yet applied a 10-game suspension (later reduced to four games).
Questions are once again raised about the NFL’s concern about domestic violence and Roger Goodell being soft on discipline in this area, first with Ray Rice (pre-video) and now with Brown.
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The Ryan Fitzpatrick saga with the Jets represents a cautionary tale for teams and fans viewing drawn-out contract negotiations. As the Jets stood firm all summer, offering contracts with multiple years or a one-year contract at a much lesser amount than $12 million, Fitzpatrick and agent Jimmy Sexton held firm. Many fans and media were frustrated, chiming in that the team should just get the deal done and “pay the man!” And they did, succumbing to Fitzpatrick at the training camp deadline despite the player having no other options.
Now, less than halfway through the season, the one-year $12 million rental agreement with Fitzpatrick appears to be over before Halloween, as he has been benched. The Jets are essentially starting over at quarterback, seeing what they have in their younger players, something they could have done before what looks like a lost season with the stopgap Fitzpatrick at the helm. Sometimes “pay the man!” is not the right thing to do, and some of the best deals teams make are the ones they don’t.
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