Delay of Game Dooms Cincinnati’s Antitrust Claim Against the NFL

Apr 21, 2006

A federal judge in the Southern District of Ohio has granted the NFL’s motion for summary judgment, finding that the statute of limitations had run out on an antitrust claim brought by the Hamilton County (Ohio) Board of County Commissioners.
Specifically, the commissioners had alleged in 2003 that the NFL illegally used their influence as a de facto monopoly to pressure cities into picking up the tab for expensive new stadiums. The county was seeking $200 million in punitive damages from the NFL.
The court had put the litigation on a course for settlement in 2005, first appointing mediator and then, as a last resort, holding its own meetings with the parties. On January 25, 2006, the court said enough was enough and disbanded the settlement talks, opting instead to consider earlier motions, such as the defendants’ claim that the statute of limitation had run out on the claim.
The plaintiff countered that the concept of “fraudulent concealment of a federal antitrust claim” had come into play, meaning “the four-year federal statute of limitations began anew from the time the plaintiff knew or should have known of the federal claim. State of Michigan ex rel. Kelley v. McDonald Dairy Co., 905 F. Supp. 447, 451 (W.D. Mich. 1995); see also Norton-Children’s Hosp. v. James E. Smith & Sons, Inc., 658 F.2d 440, 445 (6th Cir. 1981); State of Ohio ex rel. Fisher v. Louis Trauth Dairy, Inc., 856 F. Supp. 1229, 1236 (S.D. Ohio 1994) (Spiegel, J.).”
Central to its argument was the contention that it learned of the Bengals and the NFL’s “misleading” statements and/or omissions in May 2001, leading to the discovery of facts necessary to bring the instant suit. At that time, the Los Angeles Times published evidence regarding team revenues and profits submitted as part of a lawsuit between the NFL and Oakland Raiders owner Al Davis.
“These materials revealed that the Bengals were actually among the most profitable teams in the 1990s. For example, in 1996, the team posted the eighth-highest profit in the league of $ 10.9 million. One year later, it posted the ninth-highest profit of $12.2 million. The plaintiff argues that this information – refused the County during the negotiation process – reveals that the Bengals did not, in fact, require the stadium deal to be ‘competitive and viable.’”
The court, however, wrote that there was “pivotal” evidence that “the parties uniformly agreed that any information related to the Bengals’ income was simply irrelevant to the negotiation between the Bengals and the County. It is axiomatic that there can be no wrongful concealment of a fact that the parties agreed was irrelevant, whether prudently or foolishly. Accordingly, Plaintiff simply fails to meet its burden as to this element of the fraudulent concealment doctrine.”
The court concluded that “to be sure, the lease that Hamilton County enjoys with the Bengals is highly favorable – perhaps egregiously so – to the Bengals. It may well be that the Hamilton County taxpayers are not enjoying benefits concomitant with their investment in Paul Brown Stadium and in the Bengals’ franchise. It may even be that this lease was the consequence of unlawful anticompetitive behavior by the Bengals and the NFL. Despite these truths – if they be truths – this Board cannot advance stale claims. Whether for good or ill, prior members of the Board negotiated the instant lease with the Bengals fully aware of the possibility that the team and the NFL allegedly wielded unlawful antitrust power to obtain favorable terms under the lease. They simply failed to object or to otherwise advance a claim on behalf of Hamilton County taxpayers until it was lost to the passage of time. It should be abundantly clear that the Court’s dismissal of Plaintiff’s claims is strictly on the question of the statute of limitations and is in no way a decision on the merits of Plaintiff’s substantive causes of action under anti-trust law.”
Hamilton County Board of County Commissioners v. NFL et al.; S.D.Ohio; NO. 1:03-CV-00355; 2/8/06
Attorneys of Record: (for plaintiff) Robert Raymond Furnier, Furnier & Flagel LLC, Cincinnati, OH; Stanley Morris Chesley, Waite Schneider Bayless & Chesley Co LPA, Cincinnati, OH; Paul M DeMarco, Waite Schneider, Cincinnati, OH.
(for defendants) Gregg H Levy, Robert Raymond Furnier, Steven E Fagell, Timothy D. Greszler, James M Garland, Covington & Burling, Washington, DC; Kenneth Franklin Seibel, Mark Joseph Byrne, Jacobs, Kleinman, Seibel & McNally, Cincinnati, OH. Robert Alexander Pitcairn, Jr, James Francis McCarthy, III, Wijdan Jreisat, Katz Teller Brant & Hild, Cincinnati, OH.


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