Contract grants Saints latitude
Web Posted: 10/07/2005 12:00 AM CDT

Tom Orsborn
Express-News Staff Writer

A contractual deadline has placed the New Orleans Saints and the state of Louisiana on a short-term collision course over whether the team will stay in New Orleans or move — possibly to San Antonio.




City officials here are monitoring sensitive, preliminary talks between attorneys for Saints owner Tom Benson and the controlling authority for the Louisiana Superdome, which was heavily damaged in Hurricane Katrina.

With New Orleans struggling to recover in Katrina's aftermath, both sides would prefer to wait to discuss the Saints' future. However, a disaster clause in the Saints' lease agreement with the state is likely to force the team's hand within the next eight weeks.

Both sides agree the damage Katrina did to the Superdome has opened a 90-day window in which the Saints could declare "force majeure" and void all contractual obligations with the state over use of the stadium.

Force majeure, or "greater force," is a legal term that frees parties from liability when an "act of God" prevents one or both parties from fulfilling their contractual obligation.

Such a declaration likely would signal Benson's intention to move his team permanently. Sources close to Benson say San Antonio, where the Saints are currently headquartered, is Benson's first preference as a relocation option. NFL commissioner Paul Tagliabue wants to place a team in Los Angeles, but he is opposed to a Saints move.

Attorney Larry Roedel, who represents the Louisiana Stadium & Exposition District that operates the dome, concedes that the Superdome has been seriously damaged and that the force majeure clause probably has been triggered.

"Although there may be some debate on that subject, the 90 days probably began when Hurricane Katrina struck (Aug. 29), and we realized the dome had significant damage," Roedel said Thursday.

Attorney Phil Wittmann, who represents the Saints and Benson in Louisiana, agreed.

"The events of Aug. 29 would certainly fit the bill (for force majeure)," Wittmann said. "The clock may well be ticking."

Still, Louisiana attorneys say the state has legal standing to insist that the lease agreement, which runs through the 2010 season, remain in place. Roedel says the state may have trumped force majeure by providing the Saints with an alternate facility — Tiger Stadium on the LSU campus in Baton Rouge.

"One of the reasons why we wanted to secure LSU's Tiger Stadium was to give the Saints a viable alternative to play as many home games as possible in Louisiana and lessen the chances that contractually they would opt to go somewhere else," Roedel said.

Tagliabue, intent to keep the Saints in New Orleans and apparently aware of the clause's ramifications, orchestrated an agreement last month to move four Saints home games to Tiger Stadium.

At Benson's insistence, three others were rebooked for the Alamodome. The Saints made their Alamodome debut Oct. 2 with a 19-7 victory over the Buffalo Bills before 58,866. The team returns to the Alamodome on Oct. 16 to face the Atlanta Falcons.

The first of the Saints' four games in Baton Rouge is Oct. 30 against the Miami Dolphins.

Still, the biggest date on the Saints' calendar this season could be Nov. 28 — the 90-day mark from when Katrina hit the Gulf South.

According to the lease agreement between the Saints and Louisiana, the team can opt out of the contract at the end of this season by paying the state an $81 million exit penalty.

But the contract also includes a clause headed "No Liability" that states: "In the event that any home game contemplated by this agreement cannot be played due to force majeure, the obligations of the parties hereto shall be suspended and there shall be no liability or claim for rent or damages whatsoever by any party against any other party hereto with respect to such home game."

Another clause under the heading "Total Destruction" reads: "If the Superdome is damaged or destroyed to such an extent as to render it wholly unfit for the purposes herein intended, the club shall have the option to terminate this agreement within 90 days after such damage or destruction by service of a written notice upon manager of its intention to do so. Upon such termination, the rights and obligations of the club hereunder shall cease as fully and completely as if the final date for the termination of this agreement has been reached."

Wittmann said the Saints have not decided whether they would claim force majeure and exercise the "Total Destruction" clause.

"I'm not going to rule it out or rule it in," Wittmann said. "It's not something we have focused on at this point. Our energy really has been devoted on getting Baton Rouge ready (for Saints games)."

Although Roedel said he has "no inkling" as to whether the Saints would claim force majeure, he conceded the issue could end up in arbitration.

"It's possible there could be a dispute between the Saints and the state over the rights of the parties given at least the partial destruction of the Superdome," Roedel said.

SMG, the company that manages and staffs the Superdome, hired the Ellerbee Beckett design firm to determine whether the Superdome could be repaired or would have to be torn down. A final report from Ellerbee Beckett's eight-member team, which includes structural and mechanical engineers, is expected before the end of the October, Roedel said.

"(The Superdome) is a vital piece of the puzzle, and we are working toward getting specific answers," said Tim Coulon, a Louisiana Stadium & Exposition District commissioner.

But if the Superdome is unavailable, Roedel and other exposition district officials want the Saints to play their home games in Louisiana next season.

"Tiger Stadium is the logical venue," Roedel said. "If there were conflicts at LSU, perhaps the Saints would consider other places such as Independence Stadium in Shreveport."

Said Coulon: "I think (the Saints) know that if they commit themselves to being part of the rebuilding processes, they would probably be playing at LSU next year. But we have not had any formal discussions about that."

Wittmann said the Saints have not decided where they would play next season should the Superdome be unavailable.

Legal experts say the Saints have the upper hand in any dispute with the state regarding force majeure.

"(The Saints) would have a strong case for terminating because, at least at the present time, the Superdome is wholly unfit as a venue for any NFL game," said Ronald J. Mann, a University of Texas law professor. "It is very difficult for the state to argue that the facility is not unfit."

What would be even better is if the dome was declared a total disaster, and the insurance money, plus whatever money we could get from "The Saints aren't moving" Tagliabue and the league would be enough to build an entirely new stadium, giving Benson no reason to leave.

He is the most powerful sports commissioner on the planet.