Dallas’ Fifth Court of Appeals has affirmed a summary judgment for the National Football League that dismissed a lawsuit Tony Romo and his company, The Fan Expo LLC, brought against the league related to a failed fantasy league event.
In the 17-page, unanimous opinion, published Wednesday, a three-judge panel ruled that nothing in the court record suggested a material issue of fact on whether the NFL tortuously interfered with Fan Expo’s business – in fact, the court ruled, nothing in the record comes close to drawing that conclusion.
Tony Romo’s lawyers had argued that there was enough of a factual dispute in the case that the matter should go before a jury.
Michael K. Hurst, who led oral argument for Romo and Fan Expo in March, said in an email that their side is evaluating whether they will take any further action.
“We felt like we gave a very compelling argument about the prevalence of fact issues as to the NFL’s interference and lack of justification, but certainly respect the court of appeals’ time and attention they gave,” said Hurst, a partner at Lynn Pinker Cox & Hurst in Dallas. “We are always disheartened when significant and legitimate business disputes aren’t allowed to be seen by our citizens seated as jurors as contemplated by our previous 7thAmendment.”
Haynes and Boone attorney Anne Johnson, who successfully argued the appeal on behalf of the NFL, declined to comment.
Fan Expo sued the NFL after their headlining sponsor, Entertainment Arts, pulled out of a 2016 fantasy league event that was to take place at the Pasadena Convention Center in California. Fan Expo alleged the NFL “strong-armed” EA into pulling out of the event, which caused it to be cancelled, resulting in opportunity costs of $15.5 million.
The centerpiece attraction of the 2016 convention was going to be the EA Sports Madden NFL 17 video game, where attendees could play the game against NFL players.
The appellate briefs and oral arguments centered around a series of communications between NFL executives and EA executives in which Romo alleged the strong-arming occurred.
During March’s oral arguments, Johnson told the court of appeals that the NFL’s conversation with EA simply entailed the league letting EA know that the NFL was in litigation against Fan Expo. So it did not feel comfortable with the Madden NFL 17 logo being displayed on Fan Expo’s website to help promote the event, which EA had provided to Fan Expo. Simply put, Johnson argued, the NFL did not want its name anywhere near someone that was currently its courtroom opponent.
Any decision for EA to pull out of the Fan Expo event was ultimately their call, Johnson argued.
Hurst told the court at oral arguments that a string of internal emails with EA after its call with the NFL suggested that there was more to the story, and that strong-arming had indeed occurred.
Romo’s team also alleged in their briefing that the NFL has financial power over EA, since EA earns about a fifth to a sixth of its revenue from the Madden NFL video game series.
But the court of appeals disagreed with Romo’s position in Wednesday’s opinion, which was authored by Justice Lana Myers. The judges specifically pointed to an email from EA executive Lee Rawles to another EA executive, Randy Chase, that said: “Probably wouldn’t hurt to avoid altogether if we don’t already have significant sunk costs but the logo removal is a must.”
By using the phrase “wouldn’t hurt to avoid altogether,” the court pointed out, “Rawles left the decision whether to withdraw from the convention to Chase, who was not a participant in the phone call” with the NFL.
“Rawles did not insist that EA withdraw from the convention,” Justice Myers continued. “These statements by Rawles indicate the NFL had not ‘plainly suggested that EA should not do business with Fan Expo.’”
In her conclusion, she rejected Romo’s first of three grounds for appeal, so she said the court did not need to get into the other two.
“Nothing in the record indicates their (the NFL’s) emails can be interpreted as evidence the NFL knowingly induced EA to breach the sponsor agreement,” Justice Myers wrote. “The evidence that [the NFL] mentioned the existence of the litigation to Rawles is not by itself evidence the NFL knew or should have known EA would breach the sponsor agreement on being told about the litigation. Appellant has not directed us to any other evidence that shows the NFL tortuously interfered with the sponsor agreement.”
Wednesday’s ruling is the second time for an appeals court to strike down a lawsuit brought by Romo against the NFL after a failed fantasy football event.
The first time, Romo sued the NFL alleging the league illegally interfered with another would-have-been Fan expo fantasy league event, which was to occur at The Venetian in Las Vegas. The event was cancelled after a group of NFL players headlining the event pulled out because the NFL told them their participation would violate a gambling policy.
That lawsuit was dismissed in June 2016 by former Dallas District Judge Carl Ginsberg, and later affirmed by the Dallas Court of Appeals.
Wednesday’s opinion affirmed a September 2017 summary judgment ruling by Dallas District Judge Bonnie Goldstein.
In addition to Myers, the three-judge appellate panel included Justices Erin Nowell and Leslie Osborne.
Romo and Fan Expo were also represented by Julie Pettit of The Pettit Law Firm in Dallas.