Lawyers for a business co-founded by Tony Romo told a three-judge panel in Dallas Wednesday that the issues behind the former Cowboys quarterback’s dispute with the National Football League should have been treated as matters of fact instead of being tossed by the trial judge in a 2017 summary judgment.
“I feel like I’m arguing with facts – I feel like I’m in a jury trial [right now],” Romo’s lawyer, Michael Hurst, said to the judges after hearing NFL lawyer Anne Johnson’s oral argument. “Everything was, ‘believe our side.’ All of these things are fact issues.”
The case pits the NFL against The Fan Expo, LLC, a company co-founded by Romo in 2015 to create the National Fantasy Football Conference. Fan Expo claims the NFL illegally interfered with a contract between Fan Expo and its headlining sponsor for its 2016 event, Entertainment Arts.
Fan Expo claims that 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.
Wednesday’s oral arguments were connected to a second round of litigation between Fan Expo and the NFL related to two failed fantasy league events organized by Fan Expo.
The first dispute resulted in a win for the NFL after Fan Expo alleged the NFL illegally interfered with the 2015 event, which was to be held at The Venetian in Las Vegas, when the league told NFL players who planned to participate that it violated a gambling policy.
Former Dallas District Judge Carl Ginsberg dismissed the suit in June 2016, and last year, the Dallas Court of Appeals affirmed his decision.
The current dispute is tied to the failed 2016 event, which would have taken place at the Pasadena Convention Center in California.
Dallas District Judge Bonnie Goldstein granted NFL’s summary judgment in September 2017, ruling in the league’s favor on all seven grounds that it brought. Fan Expo appealed her ruling, which led to Wednesday’s oral arguments before a Fifth Court of Appeals panel that included Justices Lana Myers, Erin Nowell and Leslie Osborne.
Fan Expo also named EA as a defendant in the lawsuit, but the claims were resolved in a separate settlement.
During oral argument, lawyers for the NFL suggested that Fan Expo’s initiation of the current case was aggressive, brought by Fan Expo as the result of a single phone call and a statement made by the NFL that was taken out of context.
“The evidence of tortious interference comes down to this: a single call, and a mention of litigation,” Johnson said. “There was no strong-arming, and no pressure applied.”
The phone call in question occurred on April 18, 2016 between two NFL lawyers, Michael Buchwald and Allison Villfane, and Lee Rawles, EA’s vice president of business affairs. Johnson said there was no factual dispute about what was said on the call because all three participants agreed that the NFL called EA to simply request the removal of the NFL shield trademark that was on the logo that EA provided to Fan Expo to use for promoting the 2016 fantasy league event.
Johnson also took issue with Hurst’s statement that the NFL “strong-armed” EA into withdrawing its sponsorship by mentioning that the league was in litigation against Fan Expo for the failed 2015 Las Vegas event. Contrary to that characterization, Johnson explained that the NFL lawyers mentioned the existing litigation to EA to simply provide context for how they discovered the NFL trademark (they found it in an email during discovery).
Johnson said the NFL wanted their trademark to be taken off EA’s marketing materials because the league did not want to be associated with Fan Expo since they were courtroom opponents.
Although the EA ultimately withdrew its sponsorship from the 2016 event, Johnson argued it made that call at its own discretion – not under the influence of the NFL.
Fan Expo’s lawyers have a different interpretation. They say that a string of emails following the phone call make it crystal clear that EA withdrew its sponsorship under the NFL’s influence.
Hurst pointed to one email in particular that an EA official sent to Fan Expo official Joe Chavez:
“It has come to our attention that there is an outstanding legal issue between the NFL and NFFC and as a direct partner of the NFL, EA will no longer be able to be a participating sponsor in the Fan Expo,” the April 25, 2016 email said.
“The record indicates otherwise,” Hurst said.
Each side had 20 minutes to argue. At the end, Justice Myers did not indicate when the panel would rule, but said they “will issue an opinion in due course.”