Randolph Lerner, a graduate of Columbia Law School and former Wall Street lawyer, has agreed to sell the National Football League’s Cleveland Browns to truck stop magnate Jimmy Haslam III in a deal valued at more than $1 billion.
Edward Herlihy, cochairman of the executive committee at Wachtell, Lipton, Rosen & Katz, and corporate partner Lawrence Makow are leading a team from the firm advising Lerner on the proposed sale of the Browns, the latest in a series of major U.S. professional sports teams to be sold in recent months.
Lerner’s ties to Wachtell stem from his late father, Alfred Lerner, the former chairman of banking and credit card giant MBNA until his death in 2002 after battling brain cancer. The elder Lerner revived the Browns, who had left Cleveland in 1995 to become the Baltimore Ravens, by paying $535 million to bring the team back as an expansion franchise in 1999.
The return of the Browns to the NFL marked the resurrection of one of the league’s oldest teams. While the Browns have had difficulty finding success on the field in recent years, the team rallied from an 18-point deficit to beat the New York Jets in its first game after Al Lerner’s death in 2002. The initials “AL” remain inscribed on the right sleeve of Browns’ jerseys as a reminder of the man who brought the team back from the dead.
Wachtell and Herlihy, along with Squire Sanders, served as counsel to the elder Lerner’s estate after his death, according to an SEC filing by MBNA. Control of the Browns was transferred to his only son, Randy, who also became chairman of MBNA. In 2005, Bank of America agreed to buy MBNA for $35 billion in stock and cash. Wachtell and Herlihy advised MBNA on the megamerger, which was announced after Wachovia rebuffed a deal to buy the company.
It was Herlihy who helped find another suitor by calling Bank of America’s then-CEO Kenneth Lewis to gauge his interest in a merger after several MBNA executives involved in deal talks with Wachovia were nearly killed a few weeks before in a helicopter crash on the East River in Manhattan, according to a story at the time by The New York Times.
Bank of America’s acquisition of MBNA closed in 2006, the same year that Lerner, sitting on a fortune estimated at more than $1.5 billion, tapped Arnold & Porter and Travers Smith for counsel on his $118 million acquisition of Aston Villa, an English soccer team that plays in Britain’s Premier League. Lerner has invested millions into the struggling franchise, and recently claimed he was committed to Aston Villa by denying reports he might look to unload the club.
While the current $1 billion price tag for the Browns is a mere fraction of what it took for Bank of America to buy MBNA or Lerner to acquire Aston Villa, the deal did require the efforts of dozens of lawyers performing the necessary due diligence work needed to move forward with a sale of the team, sources familiar with the Browns deal told The Am Law Daily.
Squire Sanders, which is advising the Browns on their sale to Haslam alongside Wachtell, has long enjoyed a close relationship with the Lerner family. Retired partner James Berick is Randy Lerner’s godfather, and his son, Daniel Berick, is a current partner at the firm, which handles legal work for the Lerners. (Lerner’s sister, Nancy, is a former prosecutor.)
Frederick Nance, a regional managing partner for Squire Sanders in its home office in Cleveland, where the firm was founded in 1890, has been a longtime legal adviser to the Browns and was actively involved in the sale of the team to Haslam. Nance, a Cleveland native, played a key role in bringing the Browns back to the city in the late 1990s, arranging the financing for a new $300 million, 73,200-seat stadium to replace the franchise’s former home, which was affectionately known by many locals as The Mistake by the Lake.
As a result of those efforts, Nance emerged as a contender to replace former NFL commissioner Paul Tagliabue in 2006 when his term was set to expire. Nance eventually lost out to current NFL commissioner Roger Goodell, but remained involved with pro football by being named general counsel of the Browns in 2009.
Tagliabue subsequently returned to his former firm, Covington & Burling, where he remains senior of counsel. The firm has long served as outside counsel to the NFL on a variety of matters—besides Tagliabue’s connection to Covington, NFL general counsel Jeffrey Pash has also served as a partner there—and it once again advised the league on the latest sale of the Browns through corporate partners Douglas Gibson and Peter Zern. (Zern is one of several Am Law 100 partners meeting with clients and drumming up business this week at the London Olympics.)
Covington counseled the NFL four years ago in resolving an ownership situation involving one of its landmark franchises, the Pittsburgh Steelers, according to our previous reports. The resulting agreement saw Haslam, the brother of Tennessee Governor Bill Haslam, become a minority investor in the Steelers in December 2008. Steelers president Arthur Rooney II, of counsel at Buchanan Ingersoll & Rooney, issued a statement Friday in support of Haslam’s purchase of the Browns.
“Jimmy Haslam and his family have been great partners in the Steelers ownership for the past three years,” Rooney said. “I am sorry that he will be leaving our ownership group, but I am happy the [NFL] is going to have a strong new owner. I am sure the Haslam family will bring constructive and able ownership to the Cleveland Browns.”
Proskauer Rose, another Am Law 100 firm renowned for its sports industry expertise, took the lead for Haslam on his bid to buy control of the rival Browns. While terms have not been disclosed, Haslam is expected to take a controlling interest in the team for more than $700 million and then on the fourth anniversary of that deal pay $300 million to buy Lerner’s remaining 30 percent stake in the franchise to finish the transaction, according to news reports. Proskauer chairman and sports law group cohead Joseph Leccese, corporate partner Wayne Katz, tax partner Amanda Nussbaum, and employee benefits partner Steven Weinstein have taken the lead working on the matter for the firm.
Leccese, who became Proskauer’s youngest-ever elected chair in 2010, is a veteran sports deal lawyer, having represented Al Lerner and longtime football executive and attorney Carmen Policy on their successful bid for the Browns as an NFL expansion team back in the late 1990s. (As an aside, last week the NFL’s Green Bay Packers named Policy’s son, Ed Policy, as their new general counsel, according to sibling publication Corporate Counsel.)
Proskauer itself has been on a transactional tear lately, advising various clients on their acquisitions and sales of major pro sports teams. The firm served as corporate counsel to Major League Baseball when the Los Angeles Dodgers were sold out of bankruptcy earlier this year for a record-breaking $2.15 billion, and is now representing a group led by former Dodgers owner Peter O’Malley on its proposed $800 million acquisition of the San Diego Padres.
Proskauer also advised the National Basketball Association on its $338 million sale of the New Orleans Hornets earlier this year; represented auto parts magnate Shahid Khan on his $760 million purchase of the NFL’s Jacksonville Jaguars in December; and advised Houston businessman Jim Crane on his $680 million acquisition of MLB’s Houston Astros last year.
Haslam’s acquisition of the Browns will require the approval of the NFL’s board of governors, a process expected to take place sometime in October.
The 2012–13 season will start on September 5, with the NFL preparing to use replacement referees as a result of an ongoing labor lockout of officials, several of whom are practicing lawyers when they’re not working on Sundays. The NFL Referees Association and the league are continuing their negotiations on a new contract, and any resolution in the matter will also involve Proskauer.
L. Robert Batterman, a veteran labor and employment partner at the firm who served as a key adviser to the league during its lockout of players last year, is lead counsel to the NFL in the talks. Michael Arnold, a sports lawyer in Kansas City, Missouri, is serving as lead negotiator for the referees’ union.