ALBANY – Three days before the National Football League OK’d the new Ralph Wilson Stadium lease deal last March, a hiccup suddenly developed.
It was one of many obstacles negotiators for the team, Erie County and the state encountered over the final month of discussions earlier this year, according to emails and other documents The Buffalo News obtained through a Freedom of Information request.
A reading of the emails depict a mix of cooperation, frustration, impatience and hard-line stances involving what would become a $130 million stadium improvement plan and 10-year lease for the team.
After weeks of talks over complex provisions, the issue that developed on the evening of March 15 had the potential to be insulting to one of the sides: turns out the title of Gov. Andrew M. Cuomo’s lead negotiator wasn’t lofty enough for the NFL.
“The change they are seeking is due to the fact (unbelievable as it is) that they don’t know you or your authority. They asked if you could add to the letter: ‘I am writing on behalf of Governor Cuomo in response to the NFL’s questions with respect to the language …’,” Richard Tobe, the county’s lead negotiator in the talks, wrote to Howard Glaser, Cuomo’s point person in the months’ long negotiations.
“For some reason Mike [Schiavone] said the NFL did not want to tell you this directly,” Tobe said of one of the Bills’ lawyers in the talks. “I think it was because they were worried how you might react to their not accepting your title as being sufficient.”
Three minutes later, the hiccup was gone.
“Funny. Tweak fine,” Glaser responded to Tobe.
The next morning, Jeff Pash, executive vice president and general counsel of the NFL, wrote to Glaser. “Howard, thank you. I have to chuckle a bit about this since I don’t know and have never met or spoken to either Mr. Tobe or Mr. Schiavone. That said, I appreciate your willingness to make this tweak,” Pash wrote.
A peek into talks
This email traffic was among the documents provided to The Buffalo News, which sought in its Freedom of Information request all material related to the deal carved by the state, county and Bills to keep the team from leaving Buffalo for at least the next seven years. Most of the documents provided to The News contained drawings and other specifications for stadium improvements and various drafts of the agreement during different phases of the talks.
The Cuomo administration did not release, as requested by The News, any negotiating documents from 2012 to provide insight into the tentative deal that Cuomo announced in December.
But the emails that were released, limited to a period starting at the end of February and through most of March, provide a peek into the secret talks. The documents show various snags, disagreements, lost-in-translation problems arising from when assurances are put into writing and the movement toward a final pact.
They also show an exhaustive list of topics covered in telephone conference calls and back-and-forth email correspondence, including issues involving the county’s access to space at the stadium and Cuomo’s demands for a new, 16-seat luxury box the state would ultimately get to use for economic development purposes.
There was give-and-take on what-if clauses in the event of major damage to the stadium by fire, natural disaster or other event as well as talks over the extent of minority- and women-owned businesses getting contracts for stadium improvements.
The emails depict a mix of amiable, tough negotiating positions and considerable hand-holding on all sides.
For instance, on March 13, The Buffalo News published a story about Assembly Democrats in Albany pushing a budget provision demanding greater financial penalties from the Bills if the team moves than the penalty Cuomo wanted at the time.
Two days later, Glaser sent a note to Pash, Tobe and Jeffrey Littmann, the Bills’ chief financial officer.
“We concur that the language is not consistent with the memorandum of understanding that was agreed to with the Bills … We can assure you that the language will not be in the enacted budget,” Glaser wrote.
He would prove to be correct.
Edging toward a deal
Most of the emails depict the sides cooperatively edging to a final deal in the run up to when NFL owners convening in Phoenix on March 18 would OK the terms and conditions of the stadium deal. But there was evidence of tensions, especially over the timetable for the pact.
On February 20 at 5:18 p.m., the Bills’ negotiator, Littmann, wrote to Glaser and Tobe, expressing concerns about how long it had taken to get “red-line markups” to the proposal from the state and county, and how some changes in the document “do not reflect our verbal agreements and/or the MOU.”
“Time is getting short and there are some difficult issues that will likely require your attention if they are to get resolved,” Littmann wrote.
A week later, he wrote that he and Russ Brandon, the team president, met with the NFL’s joint finance and stadium committees, which tabled the preliminary stadium plan because of “material issues” that needed resolution with the state and county. He said the committees would consider the plan at its March annual meeting in Phoenix.
“If not, the matter will remain tabled until the May meeting,” he warned.
Less than two hours later, Glaser fired off a brief email to Tobe.
“Rich how do you want to proceed[?] Cannot blow timeframe,” his email said.
Tobe responded, saying he could be ready for three-way talks within a couple of days.
The next day, Tobe wrote Littmann about a conference call the sides were to have the following morning. Tobe outlined 15 issues still needing resolution, including the threshold at which a casualty is defined as major or minor due to an event that damages the stadium, how the state and county were to confirm the team’s net ticket revenues, and terms for providing space for charities running concession space at the stadium.
Signs of impatience
Littmann, entrusted by the team owner to devise a complicated deal to serve many interests, showed other signs of impatience with the talks.
Following a round of back-and-forth by lawyers representing the team, state and county, Littmann on March 14 wrote to Glaser and Tobe.
“The issues being raised are business issues, not legal issues. They should be resolved by us or our people in the field, not by our counsel,” he wrote.
Littmann then went through a couple of concerns, including timetable for design and engineering work on rehabilitation projects.
“If we are not going to have that flexibility then we are not prepared to accept the risk of proceeding until design has advanced and bids have been received,” he warned.
He then discussed other stadium work.
“If these concerns are coming from the field, then it suggest[s] we have gotten off to a bad start in partnering on the ground and will need to correct that quickly to assure an efficient project,” he wrote.
On the side, lawyers were going back and forth with counter-offers.
In late February, Schiavone, the team’s Buffalo-based lawyer, wrote to Stephen Boyett, a Los Angeles-based lawyer with Foley & Lardner, a firm working on behalf of the Cuomo administration. Copying the email to 10 others involved in the talks, Schiavone checked off some problem areas. He said issues surrounding an affirmative action plan and minority- and women-owned business requirements for work at the stadium “may prove to be a major stumbling block.”
He characterized as “too expansive” the county’s demands for space at the stadium for local police, public works and other agencies.
Boyett responded the next day and noted, for instance, that minority- and women-owned business rules were part of state law and so “there is not a great deal of flexibility” on that issue. Further, he wrote, the sides agreed that 20 percent of seats destroyed in a fire or some natural disaster would meet the terms for an “un-tenantable condition” under the nonrelocation agreement, and he noted that using the terms from a 1998 stadium lease deal would “undermine” the terms of the new nonrelocation arrangement.
The final, agreed-to deal runs until 2023, and the team will pay $400 million if it leaves in the first seven years; in year seven, there is a one-time buyout option to leave for $28.4 million.
In the Feb. 25 email, Boyett went through nine outstanding issues. Still unresolved, according to an email he sent two days earlier to Schiavone and Eugene Driker, a Detroit lawyer close to Bills’ owner Ralph Wilson, were such issues as a vending plan for charitable organizations and the size of the state’s luxury suite and how many parking passes would be available for what was eventually agreed to be a 16-seat suite in the corner of the stadium.
Littmann appeared to express frustration at times between oral agreements and what wound up on paper, including language involving the team’s ticket revenues that could affect future stadium lease payments to the county.
“This is what I thought I said yesterday and what I thought both of you agreed to. This is not what is reflected in the red-line,” he wrote Tobe and Glaser on March 2.
Within two hours, Littmann’s concerns were addressed and he wrote Glaser to tell him work on the draft was continuing.
“Cool,” Glaser wrote back to Littmann one minute later.
But two days later, Littmann again wrote to Tobe and Glaser with concerns.
“I though[t] we had closure on 90 percent of the issues Friday. I thought Boyett was going to draft the agreed changes. Was I on the wrong call?” he wrote.
Glaser responded a half-hour later, explaining the situation.
“OK, understood. We are on it,” Littmann responded.
20 people in the loop
The emails show some 20 or more people were in the loop in one way or another during the final talks, from several law firms around the country to government officials to NFL executives. Littmann did most of his communicating with Glaser and Tobe, while lawyers were left to largely dealing with each other until OKs were needed by their clients.
Schiavone, the team’s lawyer, wrote to Boyett, the state’s Los Angeles-based lawyer, several hours before Littmann would take one of his concerns about miscommunications to Glaser and Tobe. Schiavone was worried about the pace of progress, and warned that only 10 days or so were left to “close the gap” and bring a deal to the NFL at its annual meeting. “The issues we are dealing with are all subject to NFL approval. That means one more layer of review by another set of attorneys (and with all due respect to my brethren copied on this email) more time delays. The more variables we can eliminate, the more likely we are to reach our collective goals,” Schiavone wrote.
On March 12, just six days before the NFL agreed to the Bills’ stadium deal, Littmann wrote Tobe and Glaser with a problem: Section 21.25 language. The section, entitled “NFL Clause,” does not appear to be spelled out in the documents obtained by The News. In his email, Littmann took blame for the sudden problem.
Tobe responded to him, saying he was “surprised” by the email and that the team’s approach to deal with the NFL “in a piecemeal way seems to be counterproductive.”
“That is on me, not the NFL,” Littmann responded.
The mystery clause eventually was eliminated. Administration officials called it a technical provision to stipulate that the deal was consistent with NFL rules and regulations, though the clause was later eliminated when the NFL signed a joinder with similar language.
At 6:34 p.m. on March 18, after a final week of email and phone work ironing out final matters – such as ensuring for the NFL that Cuomo was named in the terms of the agreement – Tobe and Glaser got the much-anticipated email from Littmann.
“We secured a favorable vote from the NFL membership for the deal,” Littmann wrote. “Thanks for your confidence. Please extend our appreciation to the governor and county executive.”