Balsillie/Phoenix Part VII: I'm just waitin' on a judge

[Fugu]

As the desert spins, continued...

Part VI here: http://hfboards.com/showthread.php?t=649358

Click to read more...

 

[Egil]

I believe the $120M estimate is if the team stayed put and all secured creditors were made whole. Moyes is an unsecured creditor.

But the judge is trying to maximize the return for all the creditors. That number is pointless.

The key number is that the franchise is worth less than what it owes in debt, without including the city. With the way the judge seems to be leaning on fees, the unsecured creditors are going to be taking a bath.

 

[Crazy_Ike]

Yes, still waiting.

 

[Hammertown]

Ah, yes, makes sense Mouser.
Hypothetically, the judge approves Reinsdorf (if he in fact puts in a bid) as the owner of the team in Phoenix. Reinsdorf or the NHL has allegedly already negotiated lease concessions for him with Glendale. Naturally Reinsdorf's bid SHOULD include a 2 or 3 year escape clause otherwise I doubt he bids at all. So Reinsdorf looks like the saviour but in two years he too moves the team, to Vegas, pays the buyout of the lease to Glendale and triggers the escape clause when attendance/revenues don't improve (which quite a few seem to think they won't). Not much of a saviour in my opinion.
He's basically doing the same thing as JB but getting around the hypothetical court ruling/relocation by waiting a year or two. It's out of the courts jurisdiction at that point.
Everyone knows if Reinsdorf applies to the NHL BOG for relocation in two years, and Vegas has an arena by then it'll be unanimous, unless Phoenix is suddenly turning a profit by then, which is doubtful.

 

[LeftCoast]

drsingle wrote:

Understand that this is complete speculation on my part. I am nowhere near a legal expert.

I suspect, given that the NHL will continue to fund the team, that two options may exist: (1) the NHL could push the angle that they have control of the team and pull the team from bankruptcy (this was never forcibly pushed to the point of obtaining a ruling to my knowledge), or (2) the NHL itself could potentially buy the franchise provided they cover the creditors.

Both options also effectively remove the team from bankruptcy and allows the NHL to fully control the next steps with the team.

Let's see Gary try and sell that to the governors in poor economic ties.

"Hey guys, you know that $35M we pumped into the Phoenix franchise? Well, we're going to do that indefinitely and ..."

or

"Hey guys, you know that $35M we pumped into the Phoenix franchise? Well now I'd like us to come up with $200M to buy the team and ... "

 

[mouser]

One story I read/posted in the last couple of days was an estimate of $120m to satisfy the creditors (for a stationary asset).

As of the filing of the bankruptcy there was approximately $93m in secured debt.
- SOF (Dell) $79.Xm
- NHL ~$13m

That NHL figure may have increased since the filing to keep the team operating.


The NHL has also advanced ~$19m (don't have the number handy) to the team for revenue sharing that would have been payed in October. That amount is a net zero from the NHL pov--if the advance is paid off then the team will get the $ in October, if the advance isn't paid off then it will cancel out in Oct and the team won't get additional $ then.

 

[RR]

But the judge is trying to maximize the return for all the creditors. That number is pointless.

The key number is that the franchise is worth less than what it owes in debt, without including the city. With the way the judge seems to be leaning on fees, the unsecured creditors are going to be taking a bath.

Unsecured creditors taking a bath in a bankruptcy is certainly nothing new. And the $120M is not pointless. It needs to be the floor for bids if all secured creditors are going to be made whole. No one is going to bid more than $120M unless if they have to.

Moyes made the decision to put the team into bankruptcy, and the league later agreed it was the best venue for auction. Both have to live with that now.

 

[Egil]

Unsecured creditors taking a bath in a bankruptcy is certainly nothing new. And the $120M is not pointless. It needs to be the floor for bids if all secured creditors are going to be made whole. No one is going to bid more than $120M unless if they have to.

Moyes made the decision to put the team into bankruptcy, and the league later agreed it was the best venue for auction. Both have to live with that now.

No one is going to be more than $0 unless they have to. The $120 mil number is irrelevent to any bidder.

Of interest is the price of the team without lease modifications. My guess as to this number is < $0. The team is also virtually worthless if liquidated.

 

[pfp]

Ah, yes, makes sense Mouser.
Hypothetically, the judge approves Reinsdorf (if he in fact puts in a bid) as the owner of the team in Phoenix. Reinsdorf or the NHL has allegedly already negotiated lease concessions for him with Glendale. Naturally Reinsdorf's bid SHOULD include a 2 or 3 year escape clause otherwise I doubt he bids at all. So Reinsdorf looks like the saviour but in two years he too moves the team, to Vegas, pays the buyout of the lease to Glendale and triggers the escape clause when attendance/revenues don't improve (which quite a few seem to think they won't). Not much of a saviour in my opinion.
He's basically doing the same thing as JB but getting around the hypothetical court ruling/relocation by waiting a year or two. It's out of the courts jurisdiction at that point.
Everyone knows if Reinsdorf applies to the NHL BOG for relocation in two years, and Vegas has an arena by then it'll be unanimous, unless Phoenix is suddenly turning a profit by then, which is doubtful.

A great example of how one can get what they want when they play by the rules.

 

[pfp]

Yes, still waiting.

pretty much sums up my feelings too.

 

[Hale Dawerchuk]

Pardon my ignorance on this, but is there latitude in the determination of what the COG is entitled to if relo occurs?

I've seen the range of figures, but I'm not certain if that's a damages award or they get put front-of-line for secured creditor payments.

If someone could clarify, I'd appreciate it.

Thanks.

 

[Brodie]

Like the sands through the hourglass... so are the days of our lives.

 

[LadyStanley]

Pardon my ignorance on this, but is there latitude in the determination of what the COG is entitled to if relo occurs?

It's up to the judge.

 

[Hale Dawerchuk]

It's up to the judge.

Sorry, I wasn't clear in my post.... I know the scope of an award is part of the verdict.

What I wasn't clear about is whether semantically COG is awarded damages or becomes a secured creditor.

And if they do become a secured creditor, where are they in line?

 

[Hammertown]

Question,
So say the judge accepts JB's bid (assuming it satisfies the creditors the best), allows him to relocate to Hamilton Ontario with a relocation fee (for argument's sake we'll include the payments to Toronto and Buffalo in there), awards damages to Glendale,
and JB agrees to pay it all. The judge also upholds the NHL's right to own their markets (essentially paying them off though with the relocation fee) but also approves the NHL's right to approve who they do business with so that his ruling doesn't create mayhem in the major sports leagues. So the NHL then votes against allowing JB in as an owner due to his antics/tactics/approach. Does that mean this whole charade has been a waste of the court's time? What essentially happens if Baum picks JB but the league won't approve him? The way I see it, Judge Baum can't have it both ways. He's either got to force JB on the league and let him move to Hamilton for a large price or just make the team a non relocatable team, because both choosing JB as the owner AND allowing the league to maintain their control of ownership approval will never work. There's no way JB has the votes on the BOG.

 

[NHLHammerbound*]

SirShagg:

A great example of how one can get what they want when they play by the rules.

Unless of course ur goal is to put another team into that vast + largely unserved market in S. Ontario. In that case, ur ONLY chance is to try to circumvent the rules, cuz as Ron Joyce found out in 1990, & as JB well knows too...IT'S A RIGGED GAME, which rather mysteriously favors Yank investors, with often shoddy financing & planning, intent on trying to make Hockey work in non traditional markets, as per BUTTMAN's patently stupid Master Plan...Which has proven ,time and again, to be the equivalent of trying to force round pegs into square holes

 

[Wetcoaster]

It's up to the judge.

Here is an interesting set of predictions with some analysis of the latitude of the bankruptcy judge by a sports economist at Stanford.

Roger Noll, Professor of Economics, Emeritus, who studies the business side of sports, believes the Waterloo billionaire will eventually emerge from a protracted bankruptcy hearing with the franchise.

But Noll, who is also a member of the advisory board at the American Antitrust Institute and is following the case closely, believes an eventual NHL appeal will mean the Coyotes won't come to Hamilton until the start of the 2010 season.

"I think the most likely result is that he (Balsillie) gets the team, plays next year in Phoenix and then moves to Hamilton the year after," Noll said, adding the delay would result from the expected appeal of the bankruptcy court ruling.

"The second most likely event is he gets the team and moves it to Hamilton this year. The least likely event is that he doesn't get the team and it stays in Phoenix permanently," Noll said.

http://www.thespec.com/News/Business/article/582130

On the issue of the relocation fee:

Noll said the danger for the NHL is that if it produces a relocation fee that is exorbitant, the bankruptcy court judge may rule the NHL rules and constitution don't apply.

"The NHL rules are just another contract and one of the powers a bankruptcy court has is to declare a contract void. He could just say: 'The NHL rules don't apply, I can do anything I want. They (the NHL) lose their whole ability to control the location of the team."

 

[Jarqui]

Here is an interesting set of predictions with some analysis of the latitude of the bankruptcy judge by a sports economist at Stanford.

http://www.thespec.com/News/Business/article/582130

On the issue of the relocation fee:

In the interview on FAN 590 with Balsillie's legal team (Susan Freeman primarily), they acknowledged relocation fees and indemnity to the Leafs and Sabres were payable.

They also did so in their economic impact analysis in the briefs.

They marginalized them on the basis of goodwill not being worth much - roughly to that effect.

Both relocation and indemnity are covered in Bylaw 36.6 which is attached to the consent agreement Moyes signed with the NHL. In other words, unlike the Raiders, it's basically in his contract.

So Noll may have a point in case law but the facts and circumstances of that case are quite clearly different as reflected by Balsillie's legal team's response.

To date, indemnity or no indemnity isn't in dispute in this case. How much they'll be asked to pay for indemnity and relocation fees is about to be depending on the numbers the NHL comes back with and whatever else transpires in this case (ie if Reinsdorf bids close to what was suggested in his letter of intent and Glendale's claim is regarded as substantial as the judge implied in the hearing, then Balsillie is effectively done because his bid simply can't compete to overcome Glendale's high claim).

 

[Wetcoaster]

In the interview on FAN 590 with Balsillie's legal team (Susan Freeman primarily), they acknowledged relocation fees and indemnity to the Leafs and Sabres were payable.

They also did so in their economic impact analysis in the briefs.

They marginalized them on the basis of goodwill not being worth much - roughly to that effect.

Both relocation and indemnity are covered in Bylaw 36.6 which is attached to the consent agreement Moyes signed with the NHL. In other words, unlike the Raiders, it's basically in his contract.

So Noll may have a point in case law but the facts and circumstances of that case are quite clearly different as reflected by Balsillie's legal team's response.

To date, indemnity or no indemnity isn't in dispute in this case. How much they'll be asked to pay for indemnity and relocation fees is about to be depending on the numbers the NHL comes back with and whatever else transpires in this case (ie if Reinsdorf bids close to what was suggested in his letter of intent and Glendale's claim is regarded as substantial as the judge implied in the hearing, then Balsillie is effectively done because his bid simply can't compete to overcome Glendale's high claim).

The way I read Professor Noll's analysis is that he is not disputing that a fee may be payable - he is just saying if the NHL makes it exorbitant they run the risk of the judge tossing it completely. If you read the complete article I think that is pretty clear.

Noll seems to think the judge is trying to force a negotiated settlement - a not unusual strategy for a judge.

 

[mouser]

In the interview on FAN 590 with Balsillie's legal team (Susan Freeman primarily), they acknowledged relocation fees and indemnity to the Leafs and Sabres were payable.

They also did so in their economic impact analysis in the briefs.

They marginalized them on the basis of goodwill not being worth much - roughly to that effect.

Both relocation and indemnity are covered in Bylaw 36.6 which is attached to the consent agreement Moyes signed with the NHL. In other words, unlike the Raiders, it's basically in his contract.

So Noll may have a point in case law but the facts and circumstances of that case are quite clearly different as reflected by Balsillie's legal team's response.

To date, indemnity or no indemnity isn't in dispute in this case. How much they'll be asked to pay for indemnity and relocation fees is about to be depending on the numbers the NHL comes back with and whatever else transpires in this case (ie if Reinsdorf bids close to what was suggested in his letter of intent and Glendale's claim is regarded as substantial as the judge implied in the hearing, then Balsillie is effectively done because his bid simply can't compete to overcome Glendale's high claim).

I noticed in court that Freeman kept using the term "Goodwill" rather than saying territorial or indemnity fees.

I'm familiar with what Goodwill means from a financial bookkeeping standpoint, however that couldn't be the same use in this situation. I got the impression from their comments in court that PSE anticipated arguing that the NHL should only be compensated for the league's "prior investment" in the territory and were using the term Goodwill in preparation for that. Something along the lines of "how much $ has the NHL invested in Hamilton"?

 

[Jarqui]

The way I read Professor Noll's analysis is that he is not disputing that a fee may be payable - he is just saying if the NHL makes it exorbitant they run the risk of the judge tossing it completely. If you read the complete article I think that is pretty clear.

Noll seems to think the judge is trying to force a negotiated settlement - a not unusual strategy for a judge.

I saw Noll's name and thought I'd already read the article. Here's what Noll said to the Globe today:

The NHL, which was granted more time to think about its position by Judge Redfield T. Baum yesterday, had better be careful just how much it demands in relocation and indemnification fees for moving the Phoenix Coyotes.

Otherwise, says an expert in sports economics and law from Stanford University, the U.S. Bankruptcy Court could let Jim Balsillie move the Coyotes to Hamilton and leave the NHL empty-handed.

Roger Noll, an economics professor at Stanford, said indemnification fees, which may be paid to teams when another team enters its territory, are not allowed under U.S. law. That was proven in the landmark antitrust case in which Oakland Raiders owner Al Davis moved his NFL team to Los Angeles in 1982 without paying the fee.

That's the part where I think he's wrong in this case.

As for his point on whether the NHL asks for too much, not only could it infuriate the judge, it could expose the NHL to an antitrust claim which I'm sure the NHL doesn't want.

As for the judge's power's, if he tried to cherry pick clauses, I think he could have a tough time making that stick if it's arbitrary and that would open up his decision to a sound appeal (that may well happen anyway).

I would also seriously be concerned with this statement:

"The NHL rules are just another contract and one of the powers a bankruptcy court has is to declare a contract void. He could just say: 'The NHL rules don't apply, I can do anything I want. They (the NHL) lose their whole ability to control the location of the team."

The judge has questioned if he has the power to do such a thing in the proceedings as Balsillie claims he does. He does not seem to agree with Balsillie on that point. He's been regarded in the media as one of the top 10 bankruptcy judges in the US and chief of that in Az after 27? years of do it. That's in part why the judge is following the NHL approval processes as outlined in their constitution and bylaws referenced by Moyes consent agreement to be done by the NHL.

As I think you know, it's tough for the judge to void a contract that contains the franchise rights and then turn around and try to retain those franchise rights leaving all the other clauses behind. That would be interesting case law to see. I doubt that decision would have a prayer of standing up under these circumstances.

Generally, as I think you know, either the executory contract like the NHL consent agreement is treated as if it was breached just before Moyes filed for bankruptcy or it must be fully cured for reinstatement.

I'm sure we can find case law exceptions for "fully cured" when some of it can't be because of the circumstances but those cases would be based upon legal reasoning of the facts and circumstances and case law, etc. They wouldn't be a situation of some judge just going off half cocked and heavy handed to snatch whatever he feels like for the creditors and discarding whatever he doesn't feel like with no legal basis to back him up. He's got a lot of power but I wouldn't go that far.

If that were the case, why bother with a bankruptcy judge and contracts when they could just bring in a mediator named Soloman, cut the baby in half and send everybody home. Fortunately for the creditors and debtors, the judge has to follow bankruptcy law and the legal restrictions that go along with it.

 

[Jarqui]

I noticed in court that Freeman kept using the term "Goodwill" rather than saying territorial or indemnity fees.

I'm familiar with what Goodwill means from a financial bookkeeping standpoint, however that couldn't be the same use in this situation. I got the impression from their comments in court that PSE anticipated arguing that the NHL should only be compensated for the league's "prior investment" in the territory and were using the term Goodwill in preparation for that. Something along the lines of "how much $ has the NHL invested in Hamilton"?

http://www.fan590.com/ondemand/media.jsp?content=20090606_164224_9128
Balsillie lawyer Susan Freeman says "The Maple Leafs and the Sabres would have indemnity rights ... " (about 17 minutes in) based upon goodwill.

Then Balsillie's lawyer discuss their interpretation of goodwill as you outline.

And again, they acknowledge relocation fees and indemnities in their briefs under economic impact .. but describe them as marginal and not worthy of a dollar amount. (something to that effect)

How Balsillie would like to see it regarded and their definition of it isn't necessarily what's going to prevail. Past circumstances of how the NHL has dealt with it is going to have more weight on what is meant by goodwill. The New Jersey Devils paid a bundle of indemnity for the NHL's definition of "goodwill" relative to what they paid for their team.

The Anaheim Disney deal is far more murky because they wanted to lure Eisner into the league as an owner so the league gave McNall half his franchise fee for indemnity rather than going after Eisner for it. It was almost a contra deal with Eisner. Because of antitrust issues left over from the Raiders case, it was arguably regarded as a finders fee to McNall for bringing Eisner in. The league hadn't even planned to expand but did so when Eisner inquired because they wanted him as an owner.

So the circumstances come into play in how the NHL has handled it to some extent. I'd say that the way Balsillie would like to regard it isn't necessarily reflected in the history of the league and how the league has handled it. The Devils situation is probably the cleanest in terms of factual comparison and circumstances.

Like several of Balsillie's positions in this case, just because his legal team says "this is the way it should be", isn't necessarily the way it's going to be regarded or turn out.

 

[CGG]

I noticed in court that Freeman kept using the term "Goodwill" rather than saying territorial or indemnity fees.

She likely used that term because it came up about 19 times in Gary's sworn affidavit earlier this week. He went on and on about goodwill in relation to paying the league and specifically paying other teams (Tor and Buf), but called that "goodwill", probably because it sounded better than "mandatory territory infringement fee" or "extortion".

 

[CGG]

A great example of how one can get what they want when they play by the rules.

And since the rules in this case seem to be schmoozing with rich owners, scratching their backs, doing favours, making some back-room deals and pretty much sabotaging the product to get what you really want (i.e. permission to move the team), why is this the "preferred" method, and why is Jim villified for being upfront about his intentions to move Phoenix (and Nashville) to Hamilton? It might not be the slimy way that the NHL would prefer you go about it ("the rules" way), but when all is said and done, it's actually a lot more honest and straightforward than the Reinsdorf example that you responded to.

 

[LadyStanley]

http://slam.canoe.ca/Slam/Hockey/NHL/Phoenix/2009/06/12/9782761-cp.html

CP story, on what may be happening as we wait

"What he's done is give the league and the team reasons to think they need to consider a compromise, a way to reach a resolution," said Schaffer. "It's possible the judge would say that delay creates more pressure on all concerned to reach an agreement because if you don't have this resolved reasonably soon, you have fewer options going forward.

"The judge could also be delaying things based on communications from the parties that they continue to make some progress and they'd like to have more time."