Monday, October 1, 2012

A Cautionary Note to Packer Fans—Don’t Protest Too Much (no, really, I mean it…)

“Thou dost protest too much me thinks….”

This often misquoted line from Shakespeare’s Hamlet (Act III, Scene II) invokes thoughts of an over-the-top protest that not only goes too far, but could lead a passive observer to think that the one protesting actually believes the opposite. Today, we use it as a cautionary phrase to warn someone from protesting too much and too passionately lest there be a penalty associated with the protest.

Case in point: the now infamous final play of the Green Bay Packers game against the Seattle Seahawks, which resulted in a controversial Seahawks victory determined by “replacement referees” (shudder…), set off a storm of protest from fans and players not seen since perhaps the Soviets were given extra time on the clock (and extra in-bounds plays) during the men’s gold medal basketball game at the ’72 Olympics. The day following the Packers/Seahawks game, the NFL ruled that the officiating team’s call on the field was correct, as the replay was inconclusive to overturn the determination of the touchdown. This ruling is almost certain to result in a storm of further protests, but about this let me extend a word of caution to my Green Bay-backing friends, especially those who are owners—YES, owners[1].

Green Bay Packers, Inc. has been a publicly owned, nonprofit corporation since August 18, 1923, when the original articles of incorporation were filed with Wisconsin’s secretary of state. Fans have supported the team financially through five stock sales, in 1923, 1935, 1950, 1997 and 2011. The Green Bay Packers’ fifth stock offering, which ended February 29, 2012, added more than 250,000 new shareholders. More than 268,000 shares were sold during the offering that began December 6, 2011, bringing the total number of stockholders to over 360,000. In short, there are a LOT of Green Bay Packer-Backers in Wisconsin and many lurking among us leading apparently ordinary lives. However, many of these fans are not your ordinary run-of-the-mill fans; these fans own the Packers.

According to the Green Bay Packers, Inc. Common Stock Offering Document dated November 29, 2011 (by which 880,000 shares were offered for sale at $850 per share), there are numerous restrictions on the nonprofit stock itself as well as the owners of the stock. Most notably, the Offering Document has a subtle entry prohibiting owners of the stock from violating NFL Rules. For example:

“’NFL Rules’ -The NFL Rules prohibit conduct by shareholders of NFL member clubs that is detrimental to the NFL, including, among other things… publicly criticizing any NFL member club or its management, employees or coaches or any football official employed by the NFL. If the Commissioner of the NFL (the “Commissioner”) decides that a shareholder of an NFL member club has been guilty of conduct detrimental to the welfare of the NFL then, among other things, the Commissioner has the authority to fine such shareholder in an amount not in excess of $500,000 and/or require such shareholder to sell his or her stock." (Emphasis added)
If the Commissioner requires a shareholder to sell his or her stock, then the Corporation may have a right to repurchase the stock at $0.025 per share. These provisions are right out of the National Football League bylaws for shareholders (Section 9.1(c)(4), under “Conflicting Interests and Prohibitions”), which states that shareholders may not “[p]ublicly criticize any member club or its management, personnel, employees, or coaches and/or any football official employed by the League. All complaints or criticism in respect to the foregoing shall be made to the Commissioner only and shall not be publicized directly or indirectly…”

For many Packer shareholders with whom I have spoken, this prohibition and the remedy for its breach come as a complete shock. Does it quell the rage from the “Battle in Seattle?” No. Is there a legally binding contract between the League and its owners? It appears so. Is there a legally binding contract between the Green Bay Packers and its owners? Yes. Will the Commissioner’s office be sending certified letters to Green Bay owners with Twitter accounts, Facebook pages and blogs that are “criticizing” football officials employed by the league? I don’t know. But it does bring one thing to mind. No team in the NFL has a more passionate fan base than the Packers. Maybe it’s because they “own their team.” Also, there is no more emphatic fan base that loves talking about the “Glory Years” more and the cheeseheads will never cease to pour praise and adulation on past seasons, past plays and former players who ascend to a green and yellow pantheon of semi-deities. Perhaps the specific rules mentioned above explain why Packer fans are the most nostalgic fans in the NFL because they have to be.

Packer fans—you’ve been warned.

[1] Author's footnote: I am not from Wisconsin. Nor am I from Minnesota, where—amazingly—a fair number of Green and Yellow fans reside. The Green Bay Packers are not my home team and the prospect of cheering for them is no more appealing than that of cheering for a successful flu shot.

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