NFL lockout: Is David S. Doty the most influential man in pro football?

By Amy Shipley and Mark Maske
Washington Post Staff Writers
Wednesday, March 9, 2011; 12:54 AM

The most influential man in professional football, at least in recent days, is not NFL Commissioner Roger Goodell. It is not players' union leader DeMaurice Smith. It just may be an 81-year-old federal judge in Minneapolis who fought unions for two decades as a lawyer, but now is considered a messiah by some NFL players and a pariah by the league's owners.

Some believe David S. Doty broke the bargaining stalemate between players and owners when he ruled March 1 that the NFL negotiated a $4 billion lockout fund from television networks "to advance its own interests and harm the interests of the players." He threatened to assess damages against the league.

That ruling and other high-profile decisions by Doty have so angered owners that they have made the judge himself one of the key issues in the current contract talks. They are trying to oust him as overseer of the NFL's collective bargaining issues, and may be willing to make concessions in other areas to accomplish that.

In past court filings, the owners have accused Doty of bias on behalf of players - a charge Doty's colleagues call ludicrous.

If the two sides fail to reach a new collective bargaining agreement by Friday or extend their talks again, the players are expected to dissolve the union so they can file an anti-trust lawsuit in federal court. By virtue of his deep involvement in NFL labor matters for more than 20 years, the case is likely to land in Doty's courtroom.

"The players are using [Doty] as a weapon just as the owners are going to use the lockout," said Charles B. Craver, a professor of labor and negotiations at George Washington University's law school. "It does give them some leverage, it definitely does. If this goes to court, [the sport's current rules] arguably could all be thrown out."

It's unclear whether the dispute will get that far. Goodell, Smith and their negotiating teams met in Washington Tuesday for a 13th day of mediated talks, with Doty, a former Marine and high school football player, still a critical issue. One person on the owners' side said recently he didn't think the league would agree to any labor settlement that includes ongoing oversight by Doty.

That person, who spoke on the condition of anonymity because of the sensitivity of the discussions, said ousting Doty ranked behind only the division of revenue in importance to the owners.

Doty's associates agree that Doty has held a position of unusual power over the players and owners, but dispute the suggestion that his decisions have reflected any favoritism. Doty declined to comment through a spokesperson.

"That's an inaccurate perception," said Cary B. Johnson, an attorney who served as a law clerk for Doty in 1987 and 1988. "He is fastidiously fair and balanced in his decisions. He was very concerned about following the law, and getting it right."

Johnson and others who know Doty said the judge has earned a reputation for impartiality, decorum and formality in his court room; they say he wears coats, dress shirts and slacks to work even on Saturdays. He also has become known for offering attorneys ample time to argue their cases.

"One of the things about David Doty: He was a Marine, he's a straight shooter," said Raymond A. Haik, the attorney who hired Doty out of law school and remains friends with him to this day. "The NFL didn't exactly go in the tank after the first [case]. They prospered."

Indeed, the NFL grew into the most powerful and profitable sports league in the nation after Doty was lassoed into the league's labor issues just five months after he was appointed to the federal bench in 1987. Doty presided over one of the NFL's landmark cases: the class-action antitrust lawsuit brought that year by Reggie White and other players who were seeking a less restrictive form of free agency.

When Doty threatened to impose his own system, the players and owners settled, and the court's ongoing oversight and enforcement power were written into their 1993 settlement. It continues to this day.

Doty's colleagues contend that his two decades working against unions in private practice belie his current reputation. After serving in the Marines and graduating from the University of Minnesota law school in 1961, Doty was hired by Haik at Popham, Haik and Schnobrich, a start-up firm. Doty's specialty was helping to represent local utility companies and municipalities against the Teamsters in labor disputes.

Haik said Doty was considered a plum hire who proved to be a detail-oriented intellectual with a passion for his work. Haik recalled Doty once storming out of his office in such a huff that when he slammed the door behind him, a glass office window shattered.

Haik and Johnson agreed that Doty's acumen did not extend into the realm of sports. Haik said Doty played lineman at a rival high school in Minnesota, but did not distinguish himself.

"He is vastly more interested in the law than he is in sports," Johnson said. "I don't recall talking sports on a recreational level with him - ever."

NFL owners did not air complaints about Doty until recently. When Doty ruled that Michael Vick did not have to return his bonus money to the Atlanta Falcons after pleading guilty to dog-fighting charges in 2007, the league's owners argued on appeal that Doty had created the appearance of bias toward the players and his court's oversight of league matters should be terminated. The owners cited comments Doty made to a pair of reporters in 2005 and 2008, and accused him of cozying up to union officials over coffee in his chambers.

Those arguments were shot down by an appellate court in a November 2009 decision.

A perhaps even more devastating setback came in the decision Doty released last week. Doty concluded that owners had knowingly taken money out of players' pockets over the last two years to set themselves up with what amounted to lockout insurance this season.

By negotiating television contract extensions for less money in 2009-10 to persuade networks and cable entities to guarantee $4 billion in payments even if there were a lockout in 2011, Doty ruled, NFL owners breached their duty to negotiate deals that would benefit both the players and owners. He proposed a hearing to determine whether the contracts would be paid, and to assess damages.

"It had some tactical significance," said David Cornwell, an attorney who formerly worked for the NFL and was a finalist for the union's executive director job in 2009. "It enabled the Players Association to take away a sense of comfort in knowing its instincts were correct in challenging the issue. I think the union appropriately played that tactical advantage . . . [but] the dangerous thing to do in negotiations is to ride a tactical horse a step too far." Nevertheless, Cornwell said he does not believe Doty's oversight is a crucial issue in the talks.

Craver said that Doty might be the players' best bargaining chip, but no one can reliably predict what a judge will decide once a suit is filed.

"In the end, the court doesn't want to run professional football," Craver said, "nor do players and owners want it to."

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