Tony Romo has asked Dallas’ Fifth Court of Appeals for a new hearing in his legal battle against the National Football League related to a failed 2016 fantasy football event in Pasadena, California.
In an 18-page motion, filed by Romo’s lawyers on Wednesday, the former Dallas Cowboys quarterback argues that a three-judge panel contradicted its own precedent last month when it affirmed a trial court’s summary judgment ruling that dismissed Romo’s claims against the NFL.
Romo’s brief requests that the court grant a rehearing en banc, or before every justice sitting on the Dallas Court of Appeals. The panel that affirmed the NFL summary judgment last month included Justices Lana Myers, Erin Nowell and Leslie Osborne.
Romo and his company, Fan Expo LLC, claim that the NFL tortiously interfered with Fan Expo’s business when it “strong-armed” Entertainment Arts, the headlining sponsor of the Pasadena convention, to pull out of the event, which caused the event to be cancelled. NFL’s lawyers have argued that it did no such thing and that EA made that decision on its own.
Wednesday’s filing is a last-ditch effort by Romo to resolve his beef with the NFL in court after two rejected lawsuits related to failed Fan Expo fantasy league events.
In 2016, a trial court in Dallas County dismissed a separate lawsuit brought by Fan Expo, which was later affirmed by the Dallas Court of Appeals. That lawsuit was related to a separate fantasy league event in Las Vegas that fell apart after a group of NFL players headlining the event pulled out because the NFL told them their participation would violate a gambling policy.
The appeal for the current case centered around whether NFL officials pressured EA to pull out of the Pasadena event in an April 2016 phone call in which the NFL requested EA to get rid of a NFL-branded logo that EA had provided for Fan Expo’s website to promote the event. The NFL requested the removal because it was hip-deep in its first lawsuit against Fan Expo at the time.
In Wednesday’s filing, Romo argued the court of appeals panel contradicted its own precedent in when it accepted the NFL and EA’s recollection of the phone call, submitted via affidavits, as true.
According to Romo’s filing, the Dallas Court of Appeals ruled in Lection v. Dyll in 2001 that it would not give “conclusive force” to “self-serving statements in affidavits of interested witnesses concerning their state of mind” because “the mental workings of an individual’s mind are matters about which adversaries have no knowledge or ready means of confirming or controverting.”
Although evidence doesn’t prove that the NFL told EA directly to pull out of the convention, Romo’s lawyers argue, other evidence in the case suggests otherwise.
“The panel’s approach essentially means that interference can only be proven with ‘magic words’ — the NFL explicitly telling EA to ‘withdraw from the event’ or ‘terminate your contract,’ ” the filing says. “Real people do not talk that way in real life, especially when the one side of a discussion depends on the other’s business. The court’s summary judgment practice should not impose such unrealistic requirements.”
The NFL’s legal team declined to comment on the filing.
David Coale of Lynn Pinker Cox & Hurst filed the brief for Romo and Fan Expo. The Romo legal team also includes LPCH partner Michael Hurst and associate Michael Kalis, as well as Julie Pettit of The Pettit Law Firm.
The NFL legal team includes Haynes and Boone partners Anne Johnson, Thad Behrens and Charlie Jones and associates Andrew Guthrie and Jamee Cotton.
To read more about the case, check out The Texas Lawbook’s previous reports here and here.