Opposition Brief — Jones v. National Football League

—

Nos. 94-1749, 1750

: a

“F

IN THE ! 0 & 19%

Supreme Court of the United States |

er Oe mre pee es

OCTOBER TERM, 1994

-_

SEAN JONES, et al... MARK DUSBABEK, ef a/..

Petitioners,

REGGIE WHITE, et al.,

Respondent/Plaintiffs,

NATIONAL FOOTBALL LEAGUE, er al.,

Respondent/Defendants.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT/PLAINTIFFS

IN OPPOSITION

James W. Quinn WEIL, GOTSHAL & MANGES

Counsel of Record 767 Fifth Avenue

Jeffrey L. Kessler New York, New York 10153

Jonathan T. Weiss (212) 310-8000

David G. Feher

Yoav M. Griver

ap LINDQUIST & VENNUM

Of Counsel

4100 IDS Center

Edward M. Glennon Minneapolis, Minnesota 55402

Charles J. Lloyd (612) 371-3211

Mark A. Jacobson

Class Counsel and Attorneys

Of Counsel

for Respondent/Plaintffs

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eo ie

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QUESTIONS PRESENTED

1. Whether the lower courts erred in finding that Petition-

ers submitted to personal jurisdiction by filing appearances

and voluntarily challenging the merits of a proposed class

action settlement agreement.

2. Whether, as a matter of fact, Petitioners waived any due

process challenge to the District Cou.t’s certification of a

Rule 23(b)(1) non-opt-out class.

3. Whether the District Court’s approval of a class action

settlement agreement as fair, reasonable and adequate to class

members, and the Court of Appeal’s affirmance of that

approval, constituted an abuse of discretion.

PARTIES TO THIS PROCEEDING

The Petitioners in this proceeding are eighteen individual

class members out of a class of over 5,000. They are Sean

Jones, Leslie O'Neal, Eric Allen, Cris Dishman, William

Matthews, and Van Waiters (the “California Objectors”);

Mark Dusbabek, Carl Lee, Audray McMillian, Felix Wright,

Cody Risien, Mark Harper, Sammy Martin, Don Beebe, and

Gregory Scales (the “Viking Objectors”); Maurice Hurst, John

Fourcade, and Byron Evans. Petitioners appeared and vol-

untarily objected to the merits of a class action settlement in

proceedings before the United States District Court for the

District of Minnesota, and were appellants before the United

States Court of Appeals for the Eighth Circuit.

Respondent/Plaintiffs Reggie White, Michael Buck, Hardy

Nickerson, Vann McElroy, and Dave Duerson were plaintiffs

and class representatives in the proceedings before the Dis-

trict Court, and appellees before the Court of Appeals.

Respondent/Defendants the National Football League and

its twenty-eight member clubs (“NFL”) were defendants in

the proceedings before the District Court, and appellees

before the Court of Appeals.

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TABLE OF CONTENTS

QUESTIONS DOREGSENTED.......-------crcecseseere’

PARTIES TO THIS PROCEEDING........-----++--+>:

TABLE OF AUTHORITIES .....----------s000rt0

MET ES INVOLVED ......---2s-eersersceres serene

STATEMENT OF THE CASE.....--------22ssrrrrr

IIE oi dananwarecancernecsrtecersrerssrorser?®

THE FACT-SPECIFIC, UNANIMOUS DECISION OF

PAGE

to

THE COURT OF APPEALS APPROVING THIS CLASS

ACTION SETTLEMENT AGREEMENT DOES NOT

RAISE ANY ISSUE WARRANTING THIS COURT'S

I eae Lcuenadeerenndevessecssescer eect ess?

A. This Case Does Not Properly Present Any

Constitutional Issue Concerning The

Application Of Rule 23(b)(1) To Absent

Class Members.......------escecsrsrtr

B. Even If The Due Process Issue Was Properly

13

Presented, Certification Of This Rule 23(b)(1)

Class Would Not Conflict With Shutts ......

C. The Lower Courts’ Approval Of The

Settlement Agreement As Fair, Reasonable,

And Adequate To Class Members Presents

No Issue Warranting This Court's Review ..

MITE SIMIEIE , oy ccc ecneesetssccsecrnrsassccrerseccs:

17

19

TABLE OF AUTHORITIES

Cases PAGE

Alexander v. NFL, 1977-2 Trade Cas. (CCH) 4 61,730

To. NN BPE Bes sodeh ceeusbebnssvaen sar ednesweas 18

Alger v. Hayes, 452 F.2d 841 (8th Cir. 1972).......... 15

Arata v. Nu Skin International, Inc., 1993 WL

321710 (9th Cir.) (opinion not reported) ......... 18

Arnold v. United Artists Theater Circuit, Inc., 158

F.R.D. 439 (1994), motion to reconsider or

certify for interlocutory appeal denied, (N.D.

je ae * rnrep ry eres eT ee oer re 17, 18

Berenyi v. District Director, Immigration and

Naturalization Service, 385 U.S. 630 (1967)..... 16, 20

Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio

SE sinus Pe bKvadbueFimasees FAcaceesnenesaak ees 2a

Branti v. Finkel, 445 U.S. 507 (1980) ................. 16, 20

Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d

Te Cees SET ids tedocns 555 4e dee ehosebbbace 15

Brown vy. Ticor Title Insurance Co., 982 F.2d 386 (9th

Cir. 1992), cert. dismissed, 114 S. Ct. 1359

Ei, 1 Oa PE e Pe Cn, PIN a mn rte ys Sera 17, 18

Califano v. Yamasaki, 442 U.S. 682 (1979)............ 21

Capital Investors Co. v. Executors of Estate of

Morrison, 800 F.2d 424 (4th Cir. 1986) .......... 15

Continental Bank, N.A. v. Meyer, 10 F.3d 1293

Pee Biss cAnd dca eeanasecebicasdakssesenes 15

PAGE

Datskow v. Teledyne, Inc., Continental Products

Division, 899 F.2d 1298 (2d Cir.), cert. denied,

RO is Ie COD bin os bs cba ds had hdd nes pacecnk. 15

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)... 20

Enterprise Energy Corp. v. Columbia Gas

Transmission Corp., 137 F.R.D. 240 (S.D. Ohio

digi CEE Oe OTC EAE OD Ne TIE ERD eae Ce a 23

Evans v. Jeff D., 475 U.S. 717 (1986) ................. 21

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)... 20

Graver Tank & Manufacturing Co. v. Linde Air

Products, 336 U.S. 271 (1949) ................... 16, 20

Grunin v. International House of Pancakes, 513 F.2d

114 (8th Cir.), cert. denied, 423 U.S. 864

hg | DELS ion ete a ee a |

Huguley v. General Motors Corp., 128 F.R.D. 81

(E.D. Mich. 1989) aff'd, 925 F.2d 1464 (6th Cir.).

cert. denied, 502 U.S. 909 (1991) ................

In re Corrugated Container Antitrust Litig., 643 F.2d

PP EEN BE enn vo ws doe nb oe ndednbcecaees

In re Jac .son Lockdown/MCO Cases, 107 F.R.D. 703

CR Set I, BOO rcs x o.dubn bu node koovkkncee nda’, 17,

In re Texas Eastern Transmission Corp., 15 F.2d 1230

(3d Cir.), cert. denied, 115 S. Ct. 291 (1994) ....

In re Wolverine Radio Co., 930 F.2d 1132 (6th Cir.

Ri cneu neato et ieee mee etc. | f

Insurance Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982)........

Jackson v. NFL, 802 F. Supp. 226 (D. Minn. 1992)..... 4,

to

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15

15

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to

vi

PAGE

League of Martin v. City of Milwaukee, 588 F. Supp.

5OG6 €0.EP. Wels MO hander kncdhiededniktaénsacas’ 24

Leroy v. Great Western United Corp., 443 U.S. 173

(1979)... ccvcsdcgementecdameeeddekan iat tikest as 14,15

Lo Re v. Chase Manhattan Corp., 19 Fed. Empl. Prac.

Cas. (BNA) 1366, 1369 (S.D.N.Y. 1979)......... 24

Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981).... 23

Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994

(150 Cap, BF cecawntenes Sethe ea ee es tdnkccoests 15

NCAA v. Board of Regents, 468 U.S. 85 (1984) ....... 20

Neirbo Co. v. Bethlehem Ship Building Corp., 308

U.S. 366 (ERIE recor ieee eisea sare ahs oeebve sees: 15

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340

(1978) . . .nsesccnnpedeeneeeet eaten abe s sas siesses 20

Pardazi v. Cullman Medical Center, 896 F.2d 1313

(i hele Cin. FD saci ee ed Rhee eeawsspecs a: 15

Phillips Petroleum Co. v. Shutts, 472 U.S. 797

(1909) ....i:sssnceasneeneneebeseeeaaasaeeetense. 13, 14,17

Pipkin v. United States Postal Service, 951 F.2d 272

(1 QtR Cig, SO siatcrcks tree nkenese scbaeecesess 15

Powell v. NFL, 930 F.2d 1273 (8th Cir. 1989), cert.

denied, 493 U.S. TOGO CEST). cnc ccnccncccccvecs: 4

Robertson v. NBA, 72 F.R.D. 64 (S.D.N.Y. 1976), aff'd,

$36 P.20 GEE CG SEED cen ercesicsavevevesces 18, 19

Rogers v. Lodge, 458 U.S. 613 (1982)................. 16, 20

Thornton v. East Texas Motor Freight, 497 F.2d 416

(Gite Cle. FIGS 6 oka en eke aes FORE NdS 4 ot kn 9580s 23

PAGE

Three Affiliated Tribes of the Fort Berthold Reservation

v. Wold Engineering, P.C., 467 U.S. 138 (1984).. 13

Ticor Title Insurance Co. v. Brown. ie Bae

Bey See BW COED Sok sek kukdecuveectasesceves »- dy 34, 96

United States v. Doe, 465 U.S. 605 (1984) ............ 16, 20

United States v. Johnston, 268 U.S. 220 ty. ae 20

United States v. Vacant Land Located at 10th Street

and Chalienger Way in Palmdale, Cal., 15 F.3d

| a 15

White v. National Football League, 822 F. Supp.

gS) passim

White v. National Football League, 836 F. Supp.

PE RE POUs SPUD vend vdncndevrccesccececsccc. passim

White v. National Football League, 41 F.3d 402

ST UE a seed pbc ken cs bud) oekoeedckckas passim

Women’s Committee v. National Broadcasting Co..,

Pe Pee. £99 CB.TIIN.Y. I9TT) «0. oo ccccscccccace 24

Statutes

WE We PS Be ONES) ov ocnceancc cede ccsccusevancesce, passim

UN EM Os snp ce snp av cdavieesivedeceareduceces 20

supreme Court Rale 10 .... 2... o.oo ccc ccc ccc ccccce. 12

Miscellaneous

7BC. Wright, A. Miller & M. Kane. Federal Practice

& Procedure § 1789 (2d ed. 1986)................ 17

| H. Newberg & A. Conte, Newberg On Class Actions

eR em fee es 17, 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

Nos. 94-1749, 1750

SEAN JONES, et al., MARK DUSBABEK., et al..

Petitioners,

—_—VYV—

REGGIE WHITE, ct al,

Respondent/Plaintiffs.

NATIONAL FOOTBALL LEAGUE, et al.,

Respondent/Defendants.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

a i

BRIEF FOR THE RESPONDENT/PLAINTIFFS

IN OPPOSITION

RULES INVOLVED

Certification and settlement of the class action below was

carried out pursuant to Federal Rule of Civil Procedure 23.

kl BE at a SE RRS ee Oe

STATEMENT OF THE CASE

Introduction

Petitioners—18 individual members of a class of more than

5,000—-seek this Court’s review of orders of the United States

Court of Appeals for the Eighth Circuit and the United States

District Court for the District of Minnesota, approving as fair,

reasonable, and adequate a class action stipulation and set-

tlement agreement (the “Settlement Agreement’) between

Respondent/Defendants, The National Football League and its

28 member clubs (the “NFL”), and Respondent/Plaintiffs

Reggie White, ef al., on behalf of themselves and a class of

current and former professional football players (the

“Class”).!

Although petitioners try mightily to portray this action as

raising the same constitutional issue which this Court initially

granted certiorari to review in TJicor Title Insurance Co. v.

Brown, __ U.S. __, 114 S. Ct. 1359 (1994), that due process

issue was never reached or decided by the Court of Appeals

below. See White v. National Football League, 41 F.3d 402

(8th Cir. 1994). To the contrary, the Court of Appeals unan-

imously affirmed the District Court’s decision on the more

narrow grounds that: (1) Petitioners had waived any due pro-

cess objections because they nad submitted themselves to the

The Settlement Agreement is the cornerstone of a global liti-

gation settlement resolving six years of litigation, including two dozen

separate lawsuits, between the NFL and professional football players.

The Settlement Agreement, which has been operating successfully in the

NFL for the past two seasons, has provided these players for the first

time in history with a comprehensive system of meaningful free agency;

and further provides monetary relief, in the amount of $115 million, to

class members who were injured as a result of the player restrictions that

were in place in the NFL from 1989 through 1992. The new free agency

system created by the Settlement Agreement has now been included in a

Collective Bargaining Agreement (“CBA”). The CBA was overwhelm-

ingly approved by more than 96% of the NFL players who voted. White

v. National Football League, 836 F. Supp. 1458, 1467 (D. Minn. 1993).

ee meren” t/t

Pat Whe baad vila co at i weg ND

NA in tte ti hee Alb

District Court’s jurisdiction by voluntarily litigating the mer-

its of the Settlement Agreement (as opposed to just contest-

ing jurisdiction); and (ii) the Settlement Agreement was fair,

reasonable and adequate, and in the best interests of the Class.

Neither of these fact-specific determinations presents any

conflict with the decisions of this Court or any circuit court;

nor do they present any significant issue of law that would

warrant a grant of certiorari in this case.

The White Case And Its Predecessors

On September 21, 1992, Respondent/Plaintiffs commenced

the White case on behalf of themselves and a class of pro-

fessional football players against Respondent/Defendants, the

NFL and its twenty-eight member clubs. The complaint ini-

tially sought only injunctive relief, but was later amended to

also seek antitrust damages arising out of, inter alia, the oper-

ation of various restraints on competition for NFL player ser-

vices, including the so-called “Plan B” right of first refusal/

compensation (“RFR/C’”) rules, the college draft, the Uniform

NFL Player Contract and the NFL’s pre-season pay rules. See

White v. National Football League, 836 F. Supp. 1458, 1462

(D. Minn. 1993).* Defendants answered the White complaint,

denying all material allegations and asserting various affir-

mative defenses. /d. Thereafter, plaintiffs moved for a pre-

liminary injunction to prohibit the continued imposition of the

Plan B rules or any similar restrictions, and to permit players

whose contracts expired to sell their services to other NFL

‘ Under the Plan B RFR/C rules which were in effect for the 1989

through 1992 NFL seasons, each NFL club “restricted” 37 veteran play-

ers, whether or not those players remained under contract to the team.

Pursuant to Plan B, a team had the right to match any offer made by

another NFL club to one of its restricted players (the right of first

refusal); further, if the player’s former club did not choose to match such

an offer, the old club was entitled to receive “compensation” from the

acquiring Club in the form of one or more draft choices from the NFL’s

college draft. White v. National Football League, 822 F. Supp. 1389,

1480 (D. Minn. 1993).

teams. White v. National Football League, 822 F. Supp. 1389,

1395 (D. Minn. 1993).

The White action followed closely on the heels of two other

lawsuits previously filed in the United States District Court

for the District of Minnesota challenging the Plan B RFR/C

rules. On September 10, 1992, following 4 three month trial

before Judge David S. Doty, the jury in McNeil v. NFL, 4-90-

476 (D. Minn.)—a lawsuit brought by eight professional foot-

ball players against the NFL and its member clubs—found

that the Plan B RFR/C rules violated Section 1 of the Sher-

man Act, 15 U.S.C. § 1, because they: (i) substantially harmed

“competition in the relevant market for the services of pro-

fessional football players”; and (ii) were “more restrictive

than reasonably necessary.” White, 822 F. Supp. at 1398. The

jury found that all eight McNeil plaintiffs suffered antitrust

injury, but awarded damages to only four. /d.

Shortly after the jury returned its verdict in McNeil, ten

individual NFL players who had not signed contracts for the

already commenced 1992 NFL season brought an antitrust

action against the NFL and its clubs seeking, inter alia,

injunctive relief, to stop the Plan B rules from being applied

to them. Jackson v. NFL, 802 F. Supp. 226 (D. Minn. 1992).

On September 24, 1992, Judge Doty issued a temporary

restraining order against the continued operation of Plan B,

thereby permitting those ten players to sign contracts with any

NFL clubs. /d. at 235.

Each of the above cases, as well as numerous other suits

brought by individual NFL players against the NFL Clubs,

were financially supported by the National Football League

Players Association (“NFLPA”), which is currently the col-

lective bargaining representative for all NFL players.’

. After the Eighth Circuit ruled on November 1, 1989, in Powell

v. NFL, 930 F.2d 1273 (8th Cir. 1989), cert. denied, 498 U.S. 1040

(1991), that previously agreed to player restrictions were exempt from

antitrust challenge as long as the players continued to be represented by

—— eS

The Global Litigation Settlement

On January 6, 1993, the parties to White, McNeil, Jackson

and over twenty other lawsuits involving professional football

players and NFL teams reached agreement in principle on a

global settlement of these lawsuits, with the White class

action settlement as its centerpiece. White, 822 F. Supp. at

1435.

By order dated January 6, 1993, as amended and reaffirmed

on February 17, 1993, the District Court in White certified,

for the purposes of settlement, a damages and injunctive relief

class, pursuant to Fed. R. Civ. P. 23(b)(1), consisting of:

(i) all players who have been, are now, or will be under

contract to play professional football for an NFL club at

any time from August 31, 1987 to the date of final

approval of the settlement of this action and the deter-

mination of any appeal therefrom, and (ii) all college and

other football players who, as of August 31, 1987,

through the date of final approval of the settlement of

this action and the determination of any appeals there-

from, have been, are now, or will be eligible to play foot-

ball as a rookie for an NFL team.

On February 26, 1993, the plaintiffs and defendants in

White formally entered into the class action Settlement Agree-

a union, a majority of NFL players voted to terminate the NFLPA’s union

Status. Thereafter, the NFLPA was reconstituted as a professional asso-

ciation, which financed and supported litigation by players against the

NFL, such as the McNeil and White actions, aimed at ending unreason-

able restrictions on players’ freedom of movement.

After an agreement in principle was reached settling the White class

action, the NFLPA sought once again to become the collective bargain-

ing representative for NFL players. White, 822 F. Supp. at 1396. Sub-

sequently, the NFLPA was authorized by a majority of NFL players to

represent them for purposes of collective bargaining, and by letter dated

March 29, 1993, the NFL recognized the NFLPA as the sole and exclu-

sive collective bargaining representative of pre sent and future NFL play-

ers. /d. at 1397, 1435

ment. In addition, the parties to the related NFL player law-

suits being supported by the NFLPA reached agreements to

separately settle those actions. White, 822 F. Supp. at 1395-

96. The concurrent resolution of the White class action with

twenty-three related lawsuits supported by the NFLPA

brought an end to seven years of litigation between the NFL

teams and their players.

Proceedings Before the District Court

The District Court evaluated the White Settlement Agree-

ment using “the two-stage procedure suggested in the Manual

for Complex Litigation, § 30.44, at 241-42 (2d ed. 1985).”

White, 822 F. Supp. at 1399. First, after a preliminary hearing

on February 26, 1993, at which a few class members appeared

in Opposition to the Settlement Agreement, the District Court

determined that “the proposed settlement fell within the range

of possible approval.” /d. Second, the District Court ordered

that notice of the Settlement Agreement, which provided that

objectors would have an opportunity to appear and be heard

at a final approval hearing, be mailed to individual class

members and published. /d.

Pursuant to the Court's order, plaintiffs mailed notice of the

Settlement Agreement to over 5,000 class members at their

last-known addresses, and published notice of the agreement

in the USA Today newspaper. /d. at 1400. In response, 58

class members, one player agent, and one defendant submit-

ted briefs and affidavits in opposition to the Settlement

Agreement on or before the April 2 deadline reflected in the

notice. in addition, the District Court accepted and considered

briefs and affidavits on behalf of thirty other class members

who submitted their briefs after this deadline. In total, more

than 50 briefs and affidavits, comprising thousands of pages,

were submitted by both supporters and opponents of the Set-

tlement Agreement for the District Court’s review. /d. at

1424-25.

On April 16, 1993, the District Court held a final approval

hearing, at which parties and class members were given the

opportunity to be heard in support of or in opposition to the

Settlement Agreement, irrespective of whether they had pre-

viously submitted their positions in writing. At the hearing,

which lasted over ten hours, parties and objectors presented

Oral argument, and witnesses, who were subject to cross-

examination, testified in favor of, or against, the Settlement

Agreement. /d. Each of the Petitioners herein submitted briefs

attacking the merits of the Settlement Agreement and vol-

untarily appeared, in person or through counsel, at the final

approval hearing to contest the merits of the Settlement

Agreement.

Based upon an exhaustive review of the record before him,

on April 30, 1993, Judge David S. Doty issued a 115-page

Order in which he found that the Settlement Agreement was

fair, reasonable, adequate and in the best interests of the

Class. Among the benefits to the Class found by the District

Court were: (1) a “radically modified player reservation sys-

tem,” pursuant to which almost all players with at least five

years of experience (four, if a salary cap is in place) would

have the opportunity to become unrestricted free agents (822

F. Supp. at 1419); (ii) substantially increased “tender”

requirements before a club could limit the free agency rights

of those players still subject to some restrictions (id.); (111)

significantly reduced restrictions on those players who are

still subject to free agency limitations (id.); (iv) a greatly

reduced number of rookies subject to the NFL’s college draft,

due to a reduction in the number of rounds of the draft from

twelve to seven (id.); (v) strict anti-collusion provisions, to

deter and punish collusion by or between the NFL and its

teams (id.); (vi) guaranteed annual payments to players in

salaries and benefits of at least fifty-eight percent of defined

revenues (in any year in which there is a salary cap), the

highest such guarantee in professional team sports; and (vii)

settlement payments to class members of $115 million ($17

million of which has already been distributed (id.)).*

In addition, the District Court found, inter alia, that: (1)

objections to specific provisions of the Settlement Agreement

by a small number of class members did not merit disapproval

because the “Agreement as a whole is fair, reasonable and

adequate to the class” (822 F. Supp. at 1426); (11) mail and

publication notice to the Class satisfied “the requirements of

[Fed. R. Civ. P.] 23 and due process” (id. at 1402); (iii) the

plaintiffs and class counsel “competently and vigorously rep-

resented the interests” of the Class (id. at 1405); and (iv) the

individual objectors had waived any due process objections to

a non-opt-out class and submitted to the court’s jurisdiction,

because they did not confine “their arguments to the claim

that they [were] beyond the court’s jurisdiction” but rather

“objected to the merits of the proposed settlement” (id. at

1432).

Following preliminary approval, the unprecedented free

agency system created by the Settlement Agreement became

effective. 822 F. Supp. at 1420. As a result, class members

have already enjoyed the substantial benefits of this new sys-

tem for more than two years. During this period, hundreds of

NFL players have switched clubs as Unrestricted Free Agents;

many more Restricted Free Agents have received offers from

other teams than ever did under Plan B; and average player

salaries throughout the NFL have increased by more than fifty

percent, providing hundreds of millions of dollars in addi-

5 In addition, it was agreed that the named plaintiffs in White and

Lewis v. NFL, Civ. A. No. 91-2685 (D.D.C.), would receive the follow-

ing amounts: Reggie White - $0; Michael Buck - $134,805; Vann McEI-

roy - $470,194; Hardy Nickerson - $494,836; Albert Lewis - $711,600;

and Wayne Radloff - $214,115. The named plaintiff for pre-season pay

claims, Dave Duerson, will receive $98,302. These sums reflect the

amount of damages these plaintiffs would have sought at trial, before tre-

bling, and will not be paid from the $115 million White Settlement Fund.

White, 822 F. Supp. at 1415.

Oe

tiona: compensation to class members. See White, 836 F.

Supp. at 1479-80.

In addition to the new free agency system, and the $115

million in damages paid into the White Settlement Fund, sub-

stantial additional benefits to class members were provided by

other parts of the global litigation settlement, as set forth

below:

Back Pay - The settlement of NFLPA v. NFL Management

Council, a lawsuit commenced on behalf of all NFL players

who were denied one week’s pay after returning to work at

the end of the 1987 players’ strike, provided for payment by

the NFL to the striking players, all of whom are White class

members, of $30 million. White, 822 F. Supp. at 1415.

Individual Player Lawsuits - In addition to the McNeil and

Jackson cases, there were eight other lawsuits by individual

players, supported by the NFLPA, that predated the White

class action. These lawsuits challenged the legality of Plan B

and other restrictions on player employment. All of these

cases, plus McNeil, Jackson, Lewis and Powell, were found to

have contributed substantially to the ability of class counsel

to negotiate the White Settlement Agreement on terms highly

favorable to the Class. White, 822 F. Supp. at 1405, 1407. The

related player actions were settled separately for payments

totalling $19,028,628. /d. at 1416.°

’ The other player lawsuits settled at this time included: Joyner v.

NFL, Civ. No. 92-2876 (E.D. Pa.); Allen v. Chargers Football Co., Civ.

No. 91-4322 (C.D. Cal.); Hebert v. Los Angeles Raiders, Civ. No.

$023546 (Sup. Ct. Cal.); Solomon v. NFL, Civ. No. 92-1244-F (D. Tex.):;

Morris v. New York Giants, Inc. (Arbitration before Hon. Bernard S.

Meyer); Chandler v. Indianapolis Colts, Inc., Civ. No. 54601-9009-CP-

0453 (Ind. Cir. Ct.); Mullin v. Los Angeles Rams Football Co., No.

B063729 (Cal. Ct. App.); Tice v. Pro Football, Inc., Civ. No. 91-2314

(D.D.C.); Powell v. NFL, Civ. No. 4-87-917 (D. Minn.), No. 91-3430MN

(8th Cir.); Five Smiths v. NFLPA, Civ. No. 4-90-261 (D. Minn), No. 92-

2118MN (8th Cir.); and NFL v. NFLPA and Hilton, Civ. No. 4-91-877 (D

Minn.).

10

Reimbursement To The NFLPA Of Litigation Expenses- All

of the actions mentioned above, including McNeil, Jackson,

Lewis and White, were funded by the NFLPA. As part of the

global litigation settlement, the NFL Clubs agreed to pay the

NFLPA, for the benefit of NFL players, $18,847,520, as par-

tial reimbursement for the attorneys’ fees, disbursements and

other expenses it incurred to support the McNeil case, the

White case, and all related player lawsuits. White, 822 F.

Supp. at 1416.°

When considered with the $115 million that will be directly

distributed as part of the White settlement, a total of $195

million will be disbursed for the benefit of NFL players.

On May 6, 1993, the NFL and the NFLPA reached agree-

ment on the terms of a new collective bargaining agreement

(the “CBA”). The CBA incorporated most of the terms of the

White Settlement Agreement relating to the new free agency

system. In addition, as a result of the CBA, the NFL defen-

dants and class counsel agreed to amend a few specific pro-

visions of the White Settlement Agreement, and class

plaintiffs moved the District Court to approve these amend-

ments. White, 836 F. Supp. at 1469. The CBA was subse-

quently ratified by 96% percent of the NFL players who voted

on ratification. /d. at 1467, 1485.

The District Court held a preliminary approval hearing on

the proposed amendments to the Settlement Agreement on

. In addition, as part of the global litigation settlement, the par-

ties to various lawsuits between and among the NFLPA, NFL Properties,

Inc. (the NFL’s licensing arm), various individual players, and various

NFLPA and NFL Properties licensees, also reached a settlement of their

lawsuits, under which the right of NFL players to engage in group licens-

ing through the NFLPA was preserved and recognized. In addition, the

NFLPA received $10 million in settlement payments and a guarantee of

at least $5 million a year in additional licensing revenues from 1993

through 1999. All of the monies received by the NFLPA pursuant to this

settlement will be distributed to, or used directly for the benefit of, NFL

players. White, 822 F. Supp. at 1415-16; White, 836 F. Supp. at 1476.

1]

June 1, 1993. Notice of the hearing was provided to all class

members, including Petitioners, who had previously objected

to approval of the Settlement Agreement. In an order dated

June 2, 1993, the District Court preliminarily approved the

proposed amended Settlement Agreement, ordered that notice

again be mailed to class members and published, and gave all

class members the opportunity to object in writing to the pro-

posed amended Settlement Agreement. Plaintiffs thereafter

mailed notice to the over 2,500 class members who were

likely to be affected by the amendments to the Settlement

Agreement and once again published notice in USA Today.

White, 836 F. Supp. at 1469.

Twenty-eight class members, all of whom had previously

objected, and one defendant, submitted briefs and affidavits

in opposition to the amended Settlement Agreement. A sec-

ond “final” approval hearing was held on July 7, 1993, during

which class members were again given the opportunity to pre-

sent oral argument and testimony in opposition to the

amended Settlement Agreement. /d. at 1470. After consider-

ing all of the evidence and arguments presented, on August

20, 1993, the District Court entered a 116-page order in which

the Court reaffirmed its prior order and concluded that the

amended Settlement Agreement, as a whole, was in the best

interests of the Class and should be approved.

Proceedings Before the Court of Appeals

On appeal, the Eighth Circuit affirmed the District Court's

determination that the Settlement Agreement was fair, reason-

able and adequate, and in the best interests of the Class.

White, 41 F.3d at 408. Further, the Court of Appeals unani-

mously held that “each of the objectors either had minimum

contacts with the forum or submitted himself to the jurisdic-

tion of the District Court by appearing through counsel to

contest the merits of the settlement, offering testimony, cross-

examining witnesses, and filing numerous memoranda of law

regarding the settlement.” /d. Based on this factual determi-

12

nation of waiver, the Court of Appeals found it unnecessary

to “reach the [constitutional] issue raised by the objectors”

regarding “whether a trial court may certify a non-opt-out

plaintiff class in an action brought primarily for injunctive

relief under Fed. R. Civ. P. 23(b)(1).” Jd.

The Court of Appeals also rejected the claim by certain

objectors that “the named plaintiffs and their counsel inade-

quately represented the class.” /d. To the contrary, the Court

of Appeals found “substantial evidence that the settlement

agreement provides significant benefits to the class” from

which the District Court “reasonably concluded that the inter-

ests of the plaintiff class were protected by the settlement

agreement.” /d. In addition, the Court of Appeals held that

“class members received adequate notice of the proposed set-

tlement and were given multiple opportunities to challenge

their inclusion in the plaintiff class.” Jd. at 408-09.

An order denying the motion by certain Petitioners for

rehearing en banc was entered by the Court of Appeals on

January 20, 1995.

ARGUMENT

THE FACT-SPECIFIC, UNANIMOUS DECISION OF

THE COURT OF APPEALS APPROVING THIS CLASS

ACTION SETTLEMENT AGREEMENT DOES NOT

RAISE ANY ISSUE WARRANTING THIS COURT’S

REVIEW

The decision of the Court of Appeals does not present any

“special” or “important” question of federal law which would

warrant review by this Court. Supreme Court Rule 10. There

is no conflict with the decisions of any circuit or the prior

decisions of this Court. Nor is there any legal question of

exceptional importance resolved by the decision below.

Contrary to the claims of Petitioners, their “due process”

challenge to the application of a Rule 23(b)(1) class certifi-

SS ee MD Dib tet

13

cation to absent class members was never decided by the

Court of Appeals below. Instead, all that the Court of Appeals

did, in a unanimous opinion, was apply well-established

authority to: (i) affirm, as a factual matter, that the individual

objectors had waived their due process argument by vol-

untarily appearing and challenging the merits of the White

Settlement Agreement; (ii) determine that the notice to the

Class was proper and that the Class was adequately repre-

sented; and (iii) determine that the District Court did not

abuse its discretion in concluding that the Settlement Agree-

ment was fair, reasonable, adequate and in the best interests

of the Class. White, 41 F.3d 402. None of these fact-based

determinations present any issue warranting review by this

Court.

A. This Case Does Not Properly Present Any Constitu-

tional Issue Concerning The Application Of Rule

23(b)(1) To Absent Class Members

Petitioners claim to be seeking review of the application of

this Court’s decision in Phillips Petroleum Co. v. Shutts, 472

U.S. 797 (1985), to a Rule 23(b)(1) class action. That due

process issue, however, was never reached or decided by the

Court of Appeals below, and thus is not properly presented by

the petitions. Rather, the Court of Appeals simply applied

well-established authority to conclude that, as a factual mat-

ter, each of the objectors had, by their actions, subjected

themselves to the jurisdiction of the District Court (thus pre-

cluding any due process objections).

“It is a fundamental rule of judicial restraint. . . that this

Court will not reach constitutional questions in advance of the

necessity of deciding them.” Three Affiliated Tribes of the

Fort Berthold Reservation v. Wold Engineering, P.C., 467

U.S. 138, 157 (1984), and cases cited therein. It thus has been

this Court’s uniform “practice to avoid the unnecessary deci-

sion of novel constitutional questions” when there exists a

sufficient non-constitutional basis for resolving a dispute. See

14

Leroy v. Great Western United Corp., 443 U.S. 173, 181

(1979); Ticor Title Insurance Co. v. Brown, __ U.S. __, 114 S.

Ct. 1359 (1994). As the Court of Appeals concluded, a non-

constitutional basis for the decision below (waiver) exists

here, and thus there was and is no need to reach the due pro-

cess issue asserted by Petitioners.

Petitioner’s constitutional argument is premised upon the

decision in Shutts, where this Court determined that, in a class

action “wholly or predominantly for money judgments,” a

court could, consistent with due process, bind absent class

members, not otherwise subject to the jurisdiction of the

court, to a class action settlement, so long as it provided a

number of procedural protections, including the right to opt-

out. 472 U.S. at 811-12 & n.3. The new constitutional issue

asserted by Petitioners is whether, consistent with the holding

of Shutts, a court may bind absent class members, who are not

otherwise subject to the jurisdiction of the court, to a non-opt-

out Rule 23(b)(1) class, in which injunctive relief is pre-

dominant but money damages are also being sought. The

Court of Appeals, however, never decided this constitutional

issue because of its factual determination that Petitioners had

voluntarily submitted themselves to the District Court’s juris-

diction by arguing the merits of the Settlement Agreement.

Specifically, the Court of Appeals unanimously determined,

as a factual matter, that each of the Petitioners submitted to

the jurisdiction of the District Court, rather than making a

special appearance solely to contest jurisdiction. In particu-

lar, the Court of Appeals found that “each of the [Petitioners]

either had minimum contacts with the forum or submitted

himself to the jurisdiction of the District Court by appearing

through counsel to contest the merits of the settlement, offer-

ing testimony, cross-examining witnesses, and filing numer-

ous memoranda of law regarding the settlement.” White, 41

F.3d at 408; White, 836 F. Supp. at 1503 nn. 92-95. Accord-

ingly, the Court of Appeals found that Petitioners had waived

any jurisdictional objections to the Rule 23(b)(1) non-opt-out

15

class so that it was unnecessary to reach the constitutional

issue posed by Petitioners. White, 41 F.3d at 408, White, 836

F. Supp. at 1503 nn. 92-95.

Dich air W

ok Sierra a

There is clearly no conflict between the Court of Appeals’

determination that Petitioners submitted to the jurisdiction of

the District Court by their decision to argue the merits of the

Settlement Agreement, and any prior rulings of this Court or

the various circuits. Indeed, this Court has long recognized

that personal jurisdiction is a “personal privilege” of a party

that may be waived. See Leroy, 443 U.S. at 180; /nsurance

Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 702 (1982); Neirbo Co. v. Bethlehem Ship

Building Corp., 308 U.S. 165, 168 (1939) (the defense of lack

of personal jurisdiction is a privilege, and can be lost in a

number of ways, including “by failure to assert it seasonably,

by formal submission in a cause, or by submission through

conduct”) (emphasis added). Applying this authority, every

Court of Appeals has held that a party may submit itself to

personal jurisdiction by actively litigating the merits of a

case.’

Accordingly, the only jurisdictional issue decided by the

Court of Appeals, and presented on this appeal, is the factual

question of whether, by their actions, Petitioners submitted to

a

j

See, e.g., Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 997

(1st Cir. 1983); Datskow v. Teledyne, Inc., Continental Products Division,

899 F.2d 1298, 1303 (2d Cir.), cert. denied, 498 U.S. 854 (1990); In re

Texas Eastern Transmission Corp., 15 F.3d 1230, 1236 (3d Cir.), cert.

denied, 115 S. Ct. 291 (1994); Capital Investors Co. v. Executors of

Estate of Morrison, 800 F.2d 424, 429 (4th Cir. 1986); Broadcast Music,

Inc. v. M.T.S. Enterprises, 811 F.2d 278, 279 (Sth Cir. 1987); Jn re

Wolverine Radio Co., 930 F.2d 1132, 1138 (6th Cir. 1991); Continental

Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993); Alger v. Hayes,

452 F.2d 841, 842-43 (8th Cir. 1972); United States v. Vacant Land

Located at 10th Street and Challenger Way in Palmdale, Cal., 15 F.3d

128, 131 (9th Cir. 1993); Pipkin v. United States Postal Service, 951 F.2d

272. 274 (10th Cir. 1991); Pardazi v. Cullman Medical Center, 896 F.2d

1313, 1317 (11th Cir. 1990).

ao

OT es - SET. e-

16

the jurisdiction of the District Court. It is well-established

that this Court will rarely disturb such “findings of fact in

which two other courts below have concurred.” United States

v. Doe, 465 U.S. 605, 614 (1984).

The reasons why this Court should not grant certiorari to

consider due process issues not reached by the Court of

Appeals below are underscored by the recent decision in Ticor

Title Ins. Co. v. Brown, __ U.S. __, 114 S. Ct. 1359, 1362

(1994). In that case, this Court dismissed a grant of certiorari

to consider a similar due process challenge to a non-opt-out

class as being improvidently granted because the determina-

tion of a non-constitutional question, not addressed in any of

the previous proceedings in Brown, might have made reso-

lution of the constitutional issue unnecessary. /d. at 1361-62.

A fortiori, any grant of certiorari to consider a due process

challenge would be improvident in this case, since the Court

of Appeals has already determined that it was not necessary

to reach these due process issues.

Petitioners’ assertion that the Court of Appeals “of neces-

sity” determined the due process issue for the Class (Petition

of Sean Jones, et al. (“Jones Pet.) at 3, 11) is without merit.

The Court of Appeals merely held that by submitting to per-

sonal jurisdiction before the District Court, these individual

class members had waived any due process objections. Noth-

ing in the Court of Appeals’ opinion would preclude other

class members, who did not submit to personal jurisdiction,

from arguing in a subsequent action that a Rule 23(b)(1) class

cannot preclude their individual damages claims (although, as

discussed below, Respondent/Plaintiffs would disagree with

such an argument).

8 See also Rogers v. Lodge, 458 U.S. 613, 623 (1982); Branti v.

Finkel, 445 U.S. 507, 512 (1980); Berenyi v. District Director, Immi-

gration and Naturalization Service, 385 U.S. 630, 635-36 (1967); Graver

Tank & Mfg. Co. v. Linde Air Products, 336 U.S. 271, 275 (1949).

-..

17

B. Even If The Due Process Issue Was Properly Pre-

sented, Certification Of This Rule 23(b)(1) Class

Would Not Conflict With Shutts

Alternatively, if the due process issue had not been waived,

certiorari would still be inappropriate because the certifica-

tion of this class action under Rule 23(b)(1) was wholly con-

sistent with this Court’s decision in Shutts, which was

expressly limited to class actions in which the claims are

“wholly or predominantly for money damages.” 472 U.S. at

811 n.3. The Petitioners’ assertion that Shutts implicitly holds

that there is a due process right for class members not subject

to personal jurisdiction to opt-out of a 23(b)(1) class action,

such as this, involving predominant claims for injunctive

relief (see Petition of Mark Dusbabek, ef al. (“Dusbabek

Pet.”) at 11, 12; Jones Pet. at 2, 8) is directly at odds with this

Court’s “wholly or predominantly” test.

As the District Court found below, “the plaintiff class’

claims for structural, injunctive relief ‘predominate’ over its

claims for damages” (see White, 822 F. Supp. at 1411; White,

836 F. Supp. at 1472). This determination flowed directly

from the fact that the principle relief sought and obtained by

the Class was the radically new free agency system created by

the Settlement Agreement. Such a non-opt-out class action,

which is not “wholly or predominantly” for money damages,

does not conflict with Shutts.?

For the same reason, this case does not present any conflict

with the decision in Brown v. Ticor Title Ins. Co., 982 F.2d

386 (9th Cir. 1992), cert. dismissed as improvidently granted,

114. S. Ct. 1359 (1994). The Ninth Circuit in Brown expressly

See, e.g.. Arnold v. United Artists Theater Circuit, Inc., 158

F.R.D. 439, 464 (1994). motion to reconsider or certify for interlocutory

appeal denied, (N.D. Cal. Sept. 15, 1994); In re Jackson Lockdown/MCO

cases, 107 F.R.D. 703, 713-14 (E.D. Mich. 1985); 7B C. Wright,

A. Miller & M. Kane. Federal Practice & Procedure § 1789, at 256 (2d

ed. 1986); 1 H. Newberg & A. Conte, Newberg on Class Actions § 1.19,

at 1-18.

18

recognized that the ruling in Shutts applied solely to “claims

wholly or predominantly for money damages.” Brown, 982

F.2d at 392. It then went on to hold that the specific 23(b)(1)

class at issue before it was subject to the opt-out requirements

of Shutts because the predominant claims at issue were for

monetary relief. Indeed, since the decision in Brown, the

Ninth Circuit has had occasion to rule that a district court did

not abuse its discretion by certifying a non-opt-out damages

and injunctive relief class under Rule 23(b)(1), where the

claims for money damages did not predominate. See Arata v.

Nu Skin International, Inc., 1993 WL 321710 (9th Cir.) (opin-

10n not reported). Where, as here, “a lawsuit (1) combines

claims for monetary relief with claims for declaratory or

injunctive relief, and (2) the monetary claims do not ‘pre-

dominate,’ . . . no additional notice or chance to opt-out is

required in order to satisfy due process requirements.” Arnold

v. United Artists Theater Circuit, Inc., 158 F.R.D. 439, 464

(1994), motion to reconsider or certify for interlocutory

appeal denied, (N.D. Cal. Sept. 15, 1994).

The reasons why a right to opt-out for absent class mem-

bers is not required by due process in the different circum-

stances presented by a class action in which claims for money

damages are not predominant stem from the fact that the pro-

tection of the rights of individual class members is much

more interdependent with the resolution of the rights of other

class members in actions in which substantial injunctive relief

is being sought. See White, 822 F. Supp. at 1412, citing 1 H.

Newberg & A. Conte, Newberg on Class Actions § 1.20 (3d

ed. 1992). This is particularly evident in antitrust class

actions brought by professional athletes which seek sub-

stantial injunctive relief in order to create a single new, highly

interdependent free agency system for all class members. It is

thus not surprising that ail prior antitrust class action settle-

ments by players in professional team sports, including

Alexander v. NFL, 1977-2 Trade Cas. (CCH) 961,730 (D.

Minn. 1977), and Robertson v. NBA, 72 F.R.D. 64 (S.D.N-Y.

19

1976), aff'd, 556 F.2d 682 (2d Cir. 1977), have been non-opt-

out settlements, which included both a new free agency sys-

tem (through injunctive relief) and a settlement of damages

claims. This long-standing and well-established principle of

class action law and practice does not present any conflict

with the due process requirements for class actions predom-

inantly seeking monetary damages articulated by Shutts.

Petitioners’ argument that they should be able to reap the

substantial benefits of the new free agency system created by

the injunctive relief portion of the Settlement Agreement,

while retaining their right to opt-out of the damages part,

would make it virtually impossible to settle 23(b)(1) class

actions in which claims for injunctive relief predominate.

Consider, for example, the enormous benefits received from

the new free agency system by petitioner O’Neal, who

increased his average yearly compensation by 180% as a free

agent; Petitioner Allen, who increased his compensation by

300%; Petitioner Martin, who enjoyed a 120% increase; Peti-

tioner Dishman, who received an 80% increase; and Petitioner

Hurst, who reaped a 240% increase.'® Due process does not

require that such class members, who necessarily receive the

substantial benefits of the injunctive relief provided by the

Settlement Agreement, also be given the right to pick and

choose whether they are willing to accept the damages part of

the same settlement.

C. The Lower Courts’ Approval Of The Settlement

Agreement As Fair, Reasonable, And Adequate To

Class Members Presents No Issue Warranting This

Court’s Review

Each of the Petitioners’ remaining arguments for certiorari

review present challenges to fact-specific determinations by

10

These amounts are over and above the substantial damages pay-

ments these Petitioners will receive pursuant to the Settlement Agree-

ment, which total over $2.2 million, representing an average payment of

over $125,000 to each Petitioner.

the courts below arising out of their approval of the Settle-

ment Agreement. However, this Court has held that it will not

“undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and exceptional

show of error.” Graver Tank & Mfg. Co. v. Linde Air Prod-

ucts, 336 U.S. 271, 275 (1949), and cases cited therein;

United States v. Johnston, 268 U.S. 220, 227 (1925) (“We do

not grant a certiorari to review evidence and discuss specific

facts.”).'' No such “obvious and exceptional” error has been

identified by Petitioners.

1. Federal Rule of Civil Procedure 23(e) requires that

notice of a class action settlement be provided to all members

of a class. It is well settled that the mechanics of the notice

process are left to the sound discretion of the district court,

subject only to “the broad ‘reasonableness’ standards imposed

by due process,” and will not be upset absent a clear showing

that the district court abused its discretion. Grunin v. Inter-

national House of Pancakes, 513 F.2d 114, 121 (8th Cir.),

cert. denied, 423 U.S. 864 (1975); Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 354-59 (1978) (reviewing class action

notice under abuse of discretion standard).

Although the Petitioners challenge the notice to the Class

ordered below (see Dusbabek Pet. at 14-15), it is clear that

these claims are frivolous. The District Court ordered notice

by publication in a national newspaper, and individualized

notice of the Settlement Agreement by direct mail to all iden-

tifiable class members. White, 836 F. Supp. at 1462, 1466.

This Court has held that such notice by mail is the best pos-

sible type of notice under the circumstances. See Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 175 (1974) (where names

and addresses of class members are readily ascertainable,

" See also Berenyi, 385 U.S. at 635; Branti, 445 U.S. at 512 n.6;

Rogers, 458 U.S. at 623 (1982); Doe, 465 U.S. 605; NCAA v. Board of

Regents, 468 U.S. 85, 98 n.15 (1984); Goodman v. Lukens Steel Co. 482

U.S. 656, 665 (1987).

21

—

individual notice by mail is “clearly the best notice practi-

cable”). Accordingly, there cannot possibly be an issue wor-

thy of Supreme Court review in the details of the individual

notice that both courts below approved

2. Similarly, Petitioners fail to cite any cert-worthy issue

arising out of the Court of Appeals’ approval of the Settle-

ment Agreement as fair, reasonable and adequate, and in the

best interests of the Class (see Dusbabek Pet. at 18-19). To

the contrary, all of the Petitioners’ claims in this regard are

primarily factual in nature and amount to a request for this

Court to review those factual findings.

As this Court has repeatedly recognized, the determination

of the fairness and adequacy of a class action settlement is

principally a factual one left to the discretion of the District

Court, which should not be overturned on appeal unless it

constitutes a clear abuse of discretion. See, e.g., Evans v. Jeff

D., 475 U.S. 717, 742-43 (1986) (“we shall rely primarily on

the sound discretion of the district courts to appraise the rea-

sonableness of particular class-action settlements on a case-

by-case basis, in the light of all the relevant circumstances”);

Califano v. Yamasaki, 442 U.S. 682, 703 (1979) (reviewing

class action certification under abuse of discretion standard).

The reason for such deference is that only the district court is

“exposed to the litigants, and their strategies, positions and

proofs. He is aware of the expense and possible legal bars to

success. Simply stated, he is on the firing line and can eval-

uate the action accordingly.” Grunin, 513 F.2d at 123.

In this case, the District Court Judge, David S. Doty, devel-

oped a thorough knowledge and understanding of the issues

involved in the Settlement Agreement through his experience

in presiding over both the White action and a host of prior

actions in which NFL player movement rules were at issue.

Of particular assistance to Judge Doty was his experience in

presiding over, and his familiarity with the record in, McNeil

v. NFL, which included a three month trial which resulted in

22

over 8,000 pages of trial transcript and over 400 exhibits. See

White, 836 F. Supp. at 1467 n.24.

In detailed findings of fact, set out in two lengthy and

exhaustive opinions, Judge Doty found that the Settlement

Agreement provided enormous benefits to the class, both in

its creation of a new free agency system—which has led to

unprecedented player movement and vastly higher salaries to

NFL players—and in its payment of $115 million to class

members for injuries arising out of Plan B and other restric-

tions imposed in the past by the NFL clubs.'* See White, 822

F. Supp. at 1412-14, 1419. After weighing these significant

benefits against the prospect of continuing with protracted

and risky litigation, as well as the irreparable injury to class

members that would be caused by any new set of restrictions

that the NFL would likely attempt to impose, the District

Court reached the well-supported conclusion that the Settle-

ment Agreement was in the best interests of the Class. /d. at

1432. This was particularly true in light of the short careers

of most class members, who would be long retired from the

NFL before all litigation was complete. See Jackson, 802 F.

Supp. at 231.

Moreover, the fact that (i) less than 2% of all class mem-

bers ever objected to the Settlement Agreement, and (i1) the

terms of the new free agency system were incorporated almost

verbatim in a collective bargaining agreement approved by

over 96% of the NFL players who voted on ratification, pro-

vides compelling evidence of the overwhelming support

" Between March |, 1993, when the new free agency rules went

into effect, and June 23, 1993, the average salaries of NFL players who

signed new contracts more than doubled, exceeding $1 million per year.

White, 836 F. Supp. at 1479-80. In addition to such huge salary increases,

there has been unprecedented player movement under the new free

agency system. In 1993, and again in 1994, over 100 NFL players

switched clubs as Unrestricted Free Agents. Thus, the marketplace expe-

rience under the new free agency system provides “substantial evidence

that the Settlement Agreement provide[d] significant benefits to the

class.” White, 41 F.3d at 408 (citing White, 836 F. Supp. at 1479-83).

23

among class members for the Settlement Agreement. This fur-

ther demonstrates why there is no cause for this Court to grant

certiorari to review the lower courts’ fact-based approval of

the Settlement Agreement.

3. Finally, Petitioners fail to raise any cert-worthy issue

in their challenge to the adequacy of class representation.

As both lower courts held, “the adequacy of class represen-

tation. . . is ultimately determined by the settlement itself.”

White, 41 F.3d at 408; White, 822 F. Supp. at 1406.'? Accord-

ingly, there can be little doubt that such representation was

adequate where, as here, the Class received hundreds of mil-

lions of dollars in free agency benefits and $115 million in

actual damages (in addition to the other substantial benefits

provided by the global litigation settlement).

Similarly, there is no reason for this Court to review the

Court of Appeals’ determination that the fact that “named

plaintiffs received additional awards based on their efforts

and risks tn the case” did not render them inadequate class

representatives (White, 41 F.3d at 408). As numerous other

courts have held, such additional consideration to class rep-

resentatives who gain substantial benefits for the class is

often appropriate and within the sound discretion of the dis-

trict court to approve. See Luevano v. Campbell, 93 F.R.D. 68,

69 (D.D.C. 1981) (“where there are sufficient indications that

the class has been treated fairly and that the relief for the

named plaintiffs is not excessive, the provision of greater

monetary relief for the named plaintiffs than for class mem-

bers does not warrant disapproval of the settlement”).'* There

” See also In re Corrugated Container Antitrust Litig., 643 F.2d

195, 212 (Sth Cir. 1981); Bowling v. Pfizer, Inc., 143 F.R.D. 141, 152

(S.D. Ohio 1992).

'$ See also Thornton v. East Texas Motor Freight, 497 F.2d 416,

470 (6th Cir. 1974) ; Enterprise Energy Corp. v. Columbia Gas Trans-

mission Corp., 137 F.R.D. 240, 250 (S.D. Ohio 1991): In re Jackson

Lockdown/MCO Cases, 107 F.R.D. at 710; Huguley v. General Motors

Corp., 128 F.R.D. 81, 85 (E.D. Mich. 1989) aff'd, 925 F.2d 1464 (6th

ee To ken ere

24

was more than an adequate record to support the lower courts’

determinations that the class representatives here—who risked

retaliation from the NFL to obtain the substantial relief

granted to the Class—deserved the limited additional benefits

that were provided.

CONCLUSION

For the foregoing reasons, Petitioners have failed to raise

any issues that warrant this Court’s review and their Petitions

for Certiorari should be denied.

Dated: May 22, 1995

James W. Quinn

Counsel of Record

Jeffrey L. Kessler

Jonathan T. Weiss

David G. Feher

Yoav M. Griver

Of Counsel

Edward M. Glennon

Charles J. Lloyd

Mark A. Jacobson

Of Counsel

Respectfully submitted,

WEIL, GOTSHAL & MANGES

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

LINDQUIST & VENNUM

4100 IDS Center

Minneapolis, Minnesota 55402

(612) 371-3211

Class Counsel and Attorneys

for Respondents/Plaintiffs

Cir.), cert. denied, 502 U.S. 909 (1991); Lo Re v. Chase Manhattan

Corp., 19 Fed. Empl. Prac. Cas. (BNA) 1366, 1369 (S.D.N.Y. 1979);

League of Martin v. City of Milwaukee, 588 F. Supp. 1004, 1020 (E.D.

Wis. 1984); Women’s Committee v. National Broadcasting Co., 76 F.R.D.

173, 180 (S.D.N.Y. 1977).