The NFL has never kicked out an owner. But if Dan Snyder’s peers attempt to oust the Washington Commanders owner, the process is likely to be challenged in court — further delaying any potential sale of the franchise, legal analysts say.
The league’s constitution says the commissioner, with the owners’ backing, has the power to force the sale of a team. But the NFL has never tested that statute, and there are questions about whether the league would want to initiate a legal fight with Snyder that could weaken the league’s top-down authority over individually-owned teams.
“Once a faculty member has tenure, it’s very difficult to remove them and (the NFL’s removal process) is a similar system,” said Michael McCann, the founding director of the sports and entertainment law institute at the University of New Hampshire. “It’s really designed to protect an owner’s investment … That’s intentional.”
The potential complications involved could explain why the league seems content, for now, with letting Snyder choose when — or even if — he’s leaving.
The New York Post, citing a source, reported earlier this month that the league lacks the votes necessary to force Snyder out. The NFL’s constitution requires 24 votes for the measure. “This is the boy’s club of boy’s clubs,” the source told the paper.
But talks to remove Snyder reportedly renewed this month when The Washington Post reported Snyder demanded that other owners indemnify him against current and future legal challenges, something that the team denies is true.
Incentive to sell
Avoiding a messy, public divorce with Snyder is probably better over the long haul for the image-conscious NFL. But avoiding a court battle and selling the team voluntarily would also benefit Snyder, says attorney Christopher Schmidt.
“I can’t imagine Dan Snyder wants the commissioner to send formal charges out to every team in the league,” said Schmidt, a partner at Bryan Cave Leighton Paisner. “That would almost certainly leak, but it may also be discoverable in other (legal) proceedings.
“As a result, I think Dan Snyder has all the incentive in the world to avoid this procedure.” As Schmidt noted, the first part of Section 8.13(B), the passage that permits an owner to be removed, calls for the league’s commissioner (Roger Goodell, in this case) to send Snyder formal charges in writing to alert him that he has “violated” the league’s bylaws or “has been guilty of conduct detrimental to the League or to professional football.”
Goodell would then have the authority to launch an investigation into Snyder, though McCann and Schmidt suggested that former Securities and Exchange Commission chair Mary Jo White’s probe into Snyder could serve as the basis for the charges and inquiry. The league’s language doesn’t specify whether a separate inquiry is needed, they said.
Once the charges are delivered to Snyder and the 31 other owners, Snyder would have 15 days to respond. Then, according to the NFL’s bylaws, Goodell would call for a “special meeting” that’s determined by the commissioner, though the language does not specify when such a meeting would need to take place or how long it would last.
At the meeting, Snyder has the right to have counsel and “strict rules of evidence shall not apply,” meaning any testimony or documentary evidence submitted to the hearing would be received and considered.
That point, experts acknowledged, could be crucial to Snyder’s defense as he would have the ability to submit anything — including information about other owners or the commissioner. In October, an ESPN report indicated that Snyder claims to have “dirt” on Goodell and other owners. The Commanders fiercely denied the story, but if Snyder does have anything he’s keeping under wraps, that would presumably be the time to unveil it.
Snyder’s side would likely “argue that this is an inconsistent practice, that other owners have big missteps that didn’t trigger this kind of outcome,” McCann said.
In years past, owners like Jerry Richardson and Eddie DeBartolo under pressure from the league sold their clubs before any official sanctions were implemented.
“Dan Snyder could choose to respond to the charges however he deems fit,” Schmidt said.
When such evidence is submitted, the bylaws read that there shall be a “reasonable” amount of time to adjourn and present rebuttal evidence. Because the exact time is not specified, McCann said he was unsure how long that would extend the process.
Once all the evidence has been considered, a formal vote would take place. If there are enough votes to oust Snyder, the embattled billionaire, who could not appeal the outcome, would have 120 days to sell, based on language in Section 3.8. If Snyder does not find a buyer, he and Goodell would have to reach a mutual agreement regarding the price of the team. And if that doesn’t happen, the matter would head to arbitration.
Dragging out the process
Under NFL rules, Snyder wouldn’t have many options. But under the American judicial system, he’s got plenty.
The Commanders owner’s first move, McCann said, could be to seek a restraining order against the league if the commissioner presents formal charges. That could delay the league’s special meeting for another few weeks or months, McCann added.
The potentially lengthier legal challenge would be to file an antitrust lawsuit against the league, one that could accuse owners of banding together to “deprive him of the team” and would likely argue that their actions have diminished the value of the franchise that prevents him from selling the team “in a manner in which he prefers.”
Though different circumstances, McCann compared the situation to the late Al Davis’ 1978 antitrust lawsuit against the NFL. That action lingered unresolved in the courts for 11 years.
Davis sued when the league wouldn’t let the Raiders move from Oakland to Los Angeles and the two sides eventually reached a settlement in 1989.
“My sense is he wouldn’t hesitate to litigate,” McCann said of Snyder.
Schmidt, though, cast doubt over whether any of Snyder’s legal arguments would hold weight in court. The attorney noted that Snyder agreed to the NFL’s constitution and bylaws when buying the Commanders, which could cause a federal court to reject the claims.
Schmidt said judges are also wary of overturning any arbitration decisions that are “supposed to be final and respected.” That, Schmidt said, would help avoid a long, drawn-out legal process.
“We’re not talking about legal proceedings that should last years and years,” he said.
The Washington Post reported that the NFL believes any vote to force out Snyder would withstand a legal challenge. “You will not defeat that,” a source told the paper. “But it would be bad for everyone.”
The simplest solution still appears to be Snyder reaching an agreement with a buyer to sell the team. The NFL owners’ meetings in Phoenix begin next week, meaning the target date that the league hoped Snyder would have a deal by is fast approaching.
After discussing Snyder at subcommittee meetings earlier this month, some owners reportedly left “still hopeful” the Commanders would be sold without a vote to force a sale necessary.
Those hopes got a boost last week when Pro Football Talk reported that Washington employees believe a sale is “imminent.” Snyder and his wife, the outlet reported, cleared out their offices in Ashburn in December in anticipation of a sale.
“It’s a process laid out, but because we haven’t seen it in action, it’s always hard to know how it will actually play out,” McCann said. “What are owners thinking? They don’t know because they’ve never seen this. It creates a lot of uncertainty.”
• Matthew Paras can be reached at mparas@washingtontimes.com.
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