MINNEAPOLIS -- Seeking more clout in their fight with the NFL, locked-out players asked a federal judge Thursday to make $4 billion in disputed broadcast revenue off limits to the league and to award them at least $707 million in damages, too.
U.S. District Judge David Doty took the request under advisement after a two-hour hearing that included arguments from attorneys for the league and the players.
Jeffrey Kessler, an attorney for the players, urged Doty to rule quickly on the request to put the $4 billion "war chest" in escrow because of the ongoing lockout. The players have argued that the league can make it through the work stoppage in part because it illegally secured that money by renegotiating TV contracts for 2011 that allows the NFL to get paid even if there are no games to televise.
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Gregg Levy, an attorney for the league, said the players have no right to damages, and he accused them of "sandbagging and ambush."
Levy told reporters afterward the league never intended to finance a work stoppage with money from the networks. He said the players don't have the right to access the money, however, and balked at the proposal for an escrow arrangement.
"It would in effect give the players some entitlement to that money which we don't believe they are entitled to," Levy said.
The damages award alone could amount to a huge piece of leverage for the players in their fight with the NFL over the next collective bargaining agreement. And so could making the broadcast money off limits.
"I think that the owners predicated a lot of their strategy in having a revenue stream for 2011," said Marc Greenbaum, a labor law professor at Suffolk University Law School in Boston who is following the case. "If Judge Doty grants the players' request, an important part of their strategy is undermined."
None of the team owners or high-ranking league officials attended the hearing. Players Ben Leber, Chester Pitts and Steve Smith were present, as was the head of the NFL Players Association, DeMaurice Smith.
Leber is one of the 10 named plaintiffs in the federal antitrust lawsuit against the league pending before one of Doty's colleagues, U.S. District Judge Susan Richard Nelson.
On March 1, 10 days before the lockout began, Doty ruled that the NFL failed to maximize revenues for the players, essentially leaving money on the table for the past two years to gain leverage in the labor fight. He described it as an "unconscionable advantage."
That order overruled a special master's decision in February to award $6.9 million in damages to the players for an extra Sunday night game given to NBC last season, but it left open the chance for the players to seek more damages over the objections of the league.
"We continue to believe that the special master got it right, that Judge Doty's findings did not give adequate deference to the special master and we are hopeful that Judge Doty will look at this record and see that the players' claims for damages and injunctive relief need not go beyond and should not go beyond what the special master ordered," Levy told reporters.
Thomas Heiden, another attorney for the players, accused the league of manipulating broadcasters to serve as banks for the lockout.
In addition to the $707 million, the players are also seeking unspecified damages for other alleged breaches, including digital and advertising rights. The extra NBC game, the players argued, was worth $39 million, which would entitle them to more than $15 million based on their 57.5 percent share of TV revenue in the CBA that expired March 11.
The players have also asked for at least three times the total amount of compensation awarded by the court.
The TV revenue fight is a separate battle from the court fight over the lockout, though Doty's decisions will almost surely influence the tack of attorneys for both sides.
Nelson ordered the lockout lifted on April 25, saying it is irreparably harming the players and their careers. The 8th U.S. Circuit Court of Appeals has put the order on hold pending a June 3 hearing in St. Louis.
The NFL asked the appeals court for an expedited decision to keep the issue from lingering too far into the summer, but in the broadcast contracts case the league doesn't have such incentive and Levy made that clear to Doty.
"In our view it's most important that you get it right than you race to get it done," Levy said.
The players, meanwhile, asked for a quick injunction that would keep the $4 billion off limits to the league until the NFL's first work stoppage since 1987 is settled. Doty described that as a request to "put my thumb on the scale" and push along the process.
"They have illegally obtained a very large thumb that they have inserted in the players' eye," Kessler responded. And in concluding his remarks, Kessler waved his arms and pointed to Leber, Pitts and Smith, saying: "They're being hurt irreparably."
Later, Kessler stressed to reporters the importance to the players of putting the war chest in escrow: "That makes a difference to players, to fans, to communities right now. Damages, we can enjoy a little bit later if the court needs more time, but we do hope we'll get the injunction right away."
Doty has consistently ruled for the players since he began handling NFL labor cases in the late 1980s. He opened the hearing by chiding both sides for their inability to reach an agreement and achieve labor peace to ensure a 2011 season.
"I'll be honest with you. I didn't think we would have this hearing, and I'm a bit disappointed that we are having it," Doty said. "Judges don't like to make decisions in business matters like this. We like you to do it, but if we have to we will."
He also sounded sentimental when noting this could be the last time he presides over such a hearing since Nelson has the new case.
The 81-year-old Doty tried to keep the mood light, jokingly suggesting to Levy at one point during a disagreement that they should continue their discussion over a beer sometime. Doty also teased Kessler about his penchant for exceeding time limits on his arguments: "When he gets wound up like that, it's awfully hard to get him off the stage."