Written on Tuesday, 11 October 2011 09:55
(James Paterson is a lawyer and occasional contributor to BackPageLead. He can be followed on Twitter: @patersonlaw or http://twitter.com/patersonlaw)
Much will be - and has already been - written about the iconic Al Davis' influence on professional football in America. Indeed, a good place to start is @backpagelead's own Ed Wyatt's summary of Davis' impact on the sport. As one of Ed's own twitter followers noted, if a Denver Bronco fan is compelled enough to pen a review of the Raiders' former coach and long-time general managing partner and owner, the person's influence on the league was immense.
Davis' contrarian streak led him to challenge the National Football League's authority on numerous occasions - akin to Don Chipp "keeping the bastards honest" on the Australian political front. These challenges have left a lasting legal legacy in the way in which professional sports are managed, with US sports administrators now keenly aware of the impact of anti-competitive conduct laws thanks to the NFL's many run-ins with Davis.
Davis was perhaps better known to many in Australia for his latter-day appearance than for his earlier influence on the game's management: his dress sense inspired comedian Dennis Miller, in his guise as a Monday Night Football commentator, to describe an encounter with him as "He looks like an Elvis who lived".
He always appeared keen to thumb his nose at league establishment. After his key involvement in the AFL-NFL merger in the 1960s, his next prominent stoush came when the Raiders tried to move from Oakland to Los Angeles, one of the first major pro-sports relocations undertaken against league wishes.
The proposed move by the Raiders to play games at the LA Coliseum in Los Angeles - more famous in Australia as the main stadium used for the 1984 Olympics - led the Raiders to enter into a contract with the owners of the stadium in 1980, prior to the move ever being raised with the league or other clubs. At that time, the terms of the NFL's constitution meant a relocation of a team was subject to the approval of the all of other teams, which the Raiders were not able to obtain. Indeed they were soundly defeated - 22-0, with 5 teams abstaining - one of the better illustrations of outsider status cultivated by Davis and his Raiders.
This attempt to transport the team to LA had a variety of legal impacts and spawned numerous actions. The original injunction preventing the move was eventually lifted after years of litigation. Precedents established through these actions included:
* An alteration of the NFL Constitution so that a "franchise" relocating to the home territory of another team only required three-quarters approval of all the NFL teams, rather than the earlier unanimous requirement.
* The owners of the LA Coliseum suing the NFL (on the basis it would lose profits through not having the Raiders as a tenant) claiming that the NFL's refusal of the move was an unlawful restraint of trade in breach of US competition laws. This suit led to the confirmation that the operations of the NFL - unlike Major League Baseball - were subject to US competition laws (in US jargon, ‘anti-trust' laws), meaning owners were not permitted to collude with each other for anti-competitive outcomes under the guise that they were all pulling for the same team.
The US courts' rejection of the NFL's claim that the league and all of its teams were one single business entity (and under that theory, could therefore not collude with itself) is still keenly felt today, with the case being referred to in a US Supreme Court decision involving the NFL and an apparel manufacturer earlier this year. (As an example, google "American Needle".)
* Later appeals of this "LA Coliseum" decision centred around damages - with the Raiders being awarded over $11.5 million in contract damages. This, however, was not enough for Al Davis and the Raiders as they also sought damages under US anti-trust laws which has a pecuniary impact of tripling the damages amount. While the Raiders failed to have the damages award trebled, arguments during this further challenge confirmed that agreements among leagues and its member clubs included implied terms of reciprocal good faith and fair dealing. The court also found that while the original jury verdict considered the NFL teams had acted in bad faith in refusing the LA move, the unilateral actions of the Raiders to move, and its deliberate efforts to circumvent NFL rules for approving franchise moves, were an equivalent failure of the Raiders to act in good faith. Clearly the dealings between the league and the Raiders were never simple, nor were they full of goodwill ...
* The local council even got in on the act, with the City of Oakland suing the (then) Oakland Raiders under a legal principle where it tried to "take" the franchise to prevent its move to L.A. The city effectively argued that due to the numerous benefits created by the team for the city and its businesses, coupled with intangible link with the city name, meant it was arguably able to be claimed as city property. (In a simplistic sense, think of the movie The Castle and an automatic acquisition of property by the authorities, arguing it is for the greater good of the public that they instead should own the property.) The City of Oakland failed, with US courts concluding that such a claim by local law makers was "... the precise brand of parochial meddling with the national economy that the commerce clause [part of the US Constitution] was designed to prohibit."
Chalk up another win and legal precedent established by Davis: "Just litigate and win, baby."
At the height of these legal disputes with the NFL, Davis also provided evidence for the USAFL in its anti-trust litigation against the NFL. (The USAFL, a rival professional league which existed for a few years in the mid-1980s, famously won this action but was awarded damages of only $1 - then tripled to become $3 - to be offset against the millions it had lost in legal fees, resulting in its bankruptcy.) Davis was the only NFL-affiliated witness to testify voluntarily, describing a belief that the NFL and the city of Oakland conspired to impede the USFL's team based in Oakland. He considered this a method of forcing the Raiders back to Oakland, or at least preserving the territory for another NFL franchise instead of the upstart USAFL. Conspiracy theories? His long-standing feud with former NFL Commish Pete Rozelle is the stuff of legend, so no doubt he had conspiracy theories on the motives of the NFL, true or otherwise.
Davis' love for LA was not for the ages, as the Raiders' moved back to Oakland in 1995 which - you guessed it - again involved litigation with the league and stadium operators.
The Raiders even brought actions against players whose contracts they had waived, arguing they were not liable to provide a full payout due to players eventually finding work with other teams - to say the man was passionate about his use of the US legal system to achieve outcomes is an understatement.
Even more impressive was his one-eyed passion for his team, no matter what the regulatory obstacles placed in its way. We see this in small ways in modern day sports - like a Mark Cuban outburst here and there, and on the local scene occasionally through a Jeff Kennett railing against the AFL administrative machine. However, as we have seen in the recent labour disputes in the AFL and in multiple professional sports in the US, the dollars at stake are such that the clubs are almost required to present a united front, be they privately or publicly owned. Not surprisingly this has led to speculation that the view of clubs and owners now conform on a variety of issues on which they may otherwise take a differing stand.
An icon has passed, and one so rebellious that his like will probably never be seen again in modern sports management and ownership.
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Just litigate, baby

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