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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The Gavel and the Gridiron: A short history of football law in Minnesota state and federal courts

From lawsuits over fan injuries all the way to NFL antitrust litigation, Minnesota courts have played an important role in a number of football-related disputes. As Minnesota prepares to host Super Bowl LII, this article offers a brief survey of some of the highlights.

When Super Bowl XXVI was played in Minnesota 26 years ago, professional football in the state was barely three decades old. The Minnesota Vikings, who are also hosting next month’s extravaganza, began playing in 1961 and managed to make their way into four Super Bowl contests in the 1970s—all losses.

With Minnesota on a seeming 26-year cycle for hosting the Super Bowl, the imminent Super Bowl LII at U.S. Bank Stadium in downtown Minneapolis provides an opportune moment to review a handful of eclectic clashes that have taken place in federal and state courtrooms, rather than on the gridirons, in this state.

Taxes & tickets

The site of the upcoming Super Bowl is on the same land formerly occupied by the venerable Metrodome, where the Super Bowl was played in 1992. That facility was the subject of a major lawsuit that ended shortly before Super Bowl XXVI here.

In the 1991 case Metropolitan Sports Facilities Commission v. Hennepin County,1 the state Supreme Court gave an early Christmas present to the Vikings, as well as the Minnesota Twins baseball club, by upholding the statutory exemption from real estate property taxes for space leased by the two teams at the Metrodome.
Reversing the tax court, the justices held that the tax exemption under Minn. Stat. §473.566, subd. 4, did not violate equal protection clauses of the federal and state constitutions or the “single subject” for the restriction of Article 4, §17 of the Minnesota state constitution. Rather, the law satisfied the rational basis test for adjudication of tax issues. Under the tenet that courts should be “very deferential” in reviewing tax legislation because taxation policy is “peculiarly a legislative function [of] give-and-take,” the court regarded the exemption as serving the legitimate public purpose of assisting in-state business activities, as the professional teams “were not so much a leisurely diversion, but an industry.”

Earlier that same year, the Supreme Court handed the Vikings another victory when it upheld the contractual arrangement between the club and General Mills that obligated the company to purchase any unused tickets to Vikings games in Metropolitan Sports Facilities Commission v. General Mills.2 The decision enforced an agreement requiring the Fortune 500 food company to buy all unsold tickets in order to prevent local TV blackouts of home games, which was a condition for the construction of the Metrodome.

Those two tax and ticket decisions shortly before Super Bowl XXVI were part of a long line of litigation involving financial features of professional football.

The “Rozelle Rule” and antitrust

One of the most memorable clashes—which has had a profound effect not only on professional football but professional sports in general—concerned the so-called Rozelle Rule, a provision in the NFL Constitution that allowed the commissioner of the league to require a team signing a player from another squad to relinquish comparable value in draft picks or players to the team from which the player departed. The arrangement effectively deterred teams from bidding for top-notch players and limited the mobility—and compensation—of players.

The neophyte union representing professional players challenged the restriction in federal court in Minnesota, and the outcome changed the face of football and professional sports forever. In Mackey v. National Football League,3 the players scored a major triumph when Judge Earl R. Larson held that the clause violated the Sherman Anti-Trust Act, 15 U.S. §1, et seq., rejecting the NFL’s contention that the quality of football would decline if players were given enhanced mobility, and further held that the rule was an overbroad restraint that unfairly curtailed the economic freedom of a majority of NFL players. The 8th Circuit concurred, affirming the decision on grounds that the restriction on player mobility constituted an “unreasonable restraint of trade.”4

Another round of litigation aimed at further sundering the ties that bind players to their teams arose in Minnesota in the late 1980s in Powell v. National Football League,5 a lawsuit brought by nine NFL players (including one Viking) and their union challenging the NFL’s modified “first refusal system,” which provided that a team could retain a player after his contract expired by exercising a right of first refusal and matching a competing club’s offer. The arrangement was invalidated by Judge David Doty, but the 8th Circuit reversed and kept the system intact for the time being.6 Subsequent developments, including a requirement imposed by the 8th Circuit that the parties pursue the matter through the collective bargaining process, ultimately resulted in substantially loosening the reins that franchises held over players and leading to the downpour of free agents permeating professional football and other pro sport leagues.

A different antitrust twist was generated in a 1973 suit7 by a Vikings season ticket holder alleging that requiring purchase of tickets to all pre-season or exhibition home games in order to procure a season ticket for regular season games constituted an impermissible antitrust “tie-in,” requiring purchasers to buy one item that they do not want in order to obtain a desired commodity. Judge Larson also presided over this case, upholding the ticket plan on grounds that the Viking fans were not illegally compelled to purchase unwanted tickets because the team made the regular season tickets available on an individual per game basis, a determination that was subsequently affirmed by the 8th Circuit.8

Injury issues

Injuries are part of the game, but when fans get hurt, litigation often ensues. In a Depression-era scrimmage between Shattuck School and the predecessor of University of Minnesota Mankato, a woman watching from the sidelines suffered a fractured leg when several players smashed into her. The fan sued Shattuck, claiming that the school was negligent because it failed to guard against players leaving the field during play or warn spectators of the possibility of being injured when play extended beyond the sidelines and boundaries. Although she prevailed at the trial court level, the decision was reversed by the Supreme Court in Ingerson v. Shattuck School,9 which held that the school was not liable for the fan’s injury because a reasonable person would have been aware of the existence of such a danger.

Fans generally fare poorly when injuries occur on the sidelines, as reflected in an even earlier Minnesota case covering a football game at the University of Minnesota when a section of bleachers collapsed, leading to a personal injury lawsuit by a spectator.10 The lawsuit was dismissed on procedural grounds because it was brought against an association that was an official body of the university and thus immune from suit.

Harm of a different sort was alleged by Gopher football fans in House v. Sports Films and Talents.11 Two fans in the stands of the now-defunct Memorial Stadium consented to be filmed for what they understood to be a recruiting film for the university football program, depicting them enthusiastically rooting for the Gophers. After their cheering images were shown on television in a commercial for Gopher tickets when the team moved to the Metrodome in 1992, the outraged fans sued the film company, alleging that their privacy had been invaded and their reputation damaged by the unauthorized use of their images because they were opposed to the Gophers playing in the Dome and did not consent to this particular use of the film. Affirming dismissal of the lawsuit, the court of appeals held that Minnesota did not recognize an action for invasion of privacy, and even if it did, the action could not be brought because a suit for misappropriation of one’s likeness only extends to celebrities who enjoy a unique “property” interest in their likeness. The House case was often cited for the proposition that Minnesota does not recognize a common law right of privacy, a proposition subsequently discredited in 1998 when the right was recognized in Lake v. Wal-mart Stores, Inc.12

The ever-vigilant eye of the camera led to another spectator-inspired football lawsuit in Scott v. State of Minnesota.13 The lawsuit arose from a dispute between two players during a football game between prison inmates at the Oak Park Heights Correctional Facility. One of the incarcerated players was charged with knifing an opponent. Failing to find the home-made weapon allegedly used in the attack, the prosecution used a film of the game recorded by the prison surveillance camera. An objection to this form of instant replay by the accused, who claimed that the film lacked the proper foundation, was rejected, and the appellate court affirmed the conviction.

Criminal capers

Criminal activity has also been a source of football-related litigation in Minnesota. While there are 11 players on the field for a football team at any given time, the defendants in U.S. v. Guzek14 learned that only five participants are necessary to constitute an “illegal gambling business.” Five defendants were convicted under federal law for running an illegal gambling operation in St. Paul, betting heavily on professional football as well as other sports. Admitting involvement in illegal bookmaking, the gamblers bet they could prevail on the argument that the government failed to establish a sufficient nexus among the quintet to meet the statutory requirement under 18 U.S.C. §1955 that illegal gambling operations consist of “five or more persons.” But the odds (and the evidence) in the case were stacked too high for them to cover their bets: The 8th Circuit said “no dice,” upholding their convictions.

In a 1966 case,15 the federal government brought forfeiture proceedings to acquire a car owned by a Minneapolis man who allegedly had been using the vehicle to promote bookmaking operations. The presence in the vehicle of football betting paraphernalia resulted in a determination by U. S. District Court Judge Edward Devitt that the car was instrumental in the betting operation and was subject to forfeiture. The 8th Circuit affirmed, reasoning that the car, which also contained some currency, was an “integral tool of the trade” for carrying on the unlawful business of gambling.

Disciplinary decisions

The authority of the league to impose discipline on players has been a matter of continued controversy.16 One of the early cases that helped establish the league’s plenary authority in adjudication of internal disputes occurred in Alexander v. National Football League.17 A group of Minnesota Vikings assistant coaches challenged the termination of their employment after nonrenewal of their contracts. Their gravamen was that the contracts subjected them to the exclusive remedy of arbitration to be overseen by the commissioner of the league, whom they deemed to be inherently biased in favor of the team. But their argument failed at the Minnesota Court of Appeals, which upheld the arrangement because courts cannot hear “pre-arbitration challenges to (claimed) arbitration bias.”

More than a decade later, Vikings star running back Adrian Peterson was subject to the same obstacle when he challenged the discipline (upheld by an arbitrator) designated by the commissioner forcing him to sit out the 2014 season, due to an episode in which he beat his son for discipline in Texas. In NFL Players Assn. ex rel. Peterson v. National Football League,18 Judge Doty threw out the discipline, but his decision was subsequently overruled by the 8th Circuit, which upheld the arbitrator’s authority to impose discipline because Peterson’s challenge did not fall within the “narrow window” for overturning an arbitral award.19

Another Vikings legend also was sacked in Eller v. National Football League Player Association,20 which arose out of a 2011 lockout of players by their teams after the league and players reached an impasse in negotiating a new collective bargaining agreement (CBA). The work stoppage prompted a lawsuit by active players against the league, asserting antitrust violations and other claims, which was joined by an antitrust action by retired players against the league. The case for the active players was settled with a new CBA following prolonged litigation and settlement negotiations presided over by Federal Judge Susan Richard Nelson and Judge Arthur Boylan.

But a group of retirees, led by Hall of Fame Viking Carl Eller, the former Vikings defensive end on all four losing Super Bowl squads, sued the union, its officials, and some of the active players for intentional interference with prospective advantage. Alleging that they were wrongfully excluded from the settlement negotiations, the retirees claimed they obtained fewer benefits than they could have received had they been allowed to negotiate for themselves. Judge Nelson dismissed the lawsuit, and the 8th Circuit affirmed in a decision written by Judge James Loken of Minnesota, noting the “historical realities” of antitrust suits “as part of the labor relations landscape” of football negotiations. Although exclusion from the bargaining process created decidedly weaker positions for the retirees, Eller and his follow retirees were not “employees,” the court ruled, and thus not covered by mandatory collective bargaining under federal labor law.

The lockout-related litigation, which involved the league as a whole, offers a reminder that Minnesota litigation has not been confined to players in this state. Michael Vick, a quarterback with the Philadelphia Eagles, had his share of legal setbacks, including his infamous criminal conviction and incarceration for orchestrating dog fighting. But he did prevail in Minnesota litigation in Vick v. NFL.21 Judge Doty upheld his entitlement to keep bonuses he had been paid before he was sacked by the league for two years after the animal abuse brouhaha, and the 8th Circuit affirmed. Vick’s victory stemmed from a longstanding antitrust lawsuit by the players that was overseen by Judge Doty.

The 8th Circuit affirmed Judge Doty’s holding, reasoning that Vick’s bonus payments could not be reclaimed by the team because they were “earned” when Vick met the roster provisions in his contract, which called for bonus payments when he was on the team.

These cases run the gamut, reflecting the diversity of football-related litigation that has been addressed by Minnesota courts for more than a century. The lore is likely to continue in the future as more football-related litigation will be adjudicated in this state by the time the 26-year cycle rolls around and Minnesota hosts Super Bowl LXXVIII in 2044. Mark your calendars for that one!


MARSHALL H. TANICK is a Twin Cities attorney with the firm of Meyer, Njus and Tanick and a Certified Senior Civil Trial Specialist who represents parties in a variety of athletics-related litigation matters, including employment and personal injury litigation.


Notes

Metropolitan Sports Facilities Commission v. Hennepin County, 478 N.W.2d 487 (1991).

2 Metropolitan Sports Facilities Commission v. General Mills, 470 N.W.2d 118 (Minn. 1991).

3 Mackey v. National Football League, 407 F.Supp. 1000 (D. Minn. 1975).

4 543 F.2d 606 (8th Cir. 1976).

5 Powell v. National Football League, 678 F. Supp. 777 (D. Minn. 1988).

6 930 F.2d 1293 (8th Cir. 1989), cert. denied 498 U.S. 1640 (1991).

7 Laing v. Minnesota Vikings Football Club, 372 F.Supp. 599 (D. Minn. 1973).

8 492 F.2d 1381 (8th Cir. 1974) (per curiam).

9 Ingerson v. Shattuck School, 185 Minn. 16, 229 N.W. 667 (1931).

10 George v. the University of Minnesota Athletic Association, 107 Minn. 424, 120 N.W. 750 (Minn. 1909).

11 House v. Sports Films and Talents, 351 N.W.2d 684 (Minn. App. 1984).

12 Lake v. Wal-mart Stores, Inc., 582 N.W.2d 231 (1998).

13 Scott v. State of Minnesota, 390 N.W.2d 889 (Minn. App. 1986).

14 U.S. v. Guzek, 527 F.2d 552 (8th Cir. 1975).

15 One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467 (8th Cir. 1966).

16 This article omits discussion of legal disputes over NFL drug testing that were adjudicated in Minnesota from 2008-2011, because that matter was discussed in a recent Bench & Bar of Minnesota article: V. John Ella and Craig W. Trepanier, “Three Decades of DATWA: Minnesota’s Drug and Alcohol Testing in the Workplace Act continues to confound,” September 2017.  http://mnbenchbar.com/2017/09/three-decades-of-datwa/

17 Alexander v. National Football League, 649 N.W.2d 465 (Minn. App. 2002).

18 NFL Players Assn. ex rel. Peterson v. National Football League, 88 F. Supp. 3d 1084 (D. Minn. 2015).

19 831 F.3rd 935 (8th Cir. 2016).

20 Eller v. National Football League Player Association, 731 F.3d 752 (8th Cir. 2013).

21 Vick v. NFL, 585 F.3d 1129 (8th Cir. 2009).

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