When the Denver Broncos transitioned ownership following Pat Bowlen's death, it triggered an intriguing intersection of complex trust law, fiduciary duties, and media scrutiny. The legal battles over the team's sale and the Right of First Refusal (ROFR) alleged to be enforceable by a Kaiser family trust offered valuable lessons for litigation teams managing high-profile, high-stakes cases.
We checked in with Dan Reilly, Director Business Litigation, Fennemore Denver who served as the Denver Broncos outside trial counsel for nearly 20 years. Dan was lead counsel on multiple Broncos' cases including the Final Right of First Refusal that cleared the sale of the Denver Broncos' for a record-breaking $4.65 billion sale, the then highest price in NFL history.
Can you summarize the legal maze surrounding the Right of First Refusal Claim?
Sure, in 1984, Pat Bowlen bought a majority interest in the Denver Broncos from previous owner Edgar Kaiser. The sale documents included a ROFR, the terms of which were litigated three times, once in 2000, 2008, and 13 years later. Upon Pat's incapacity in 2014, disputes intensified over who had rightful control of the team's ownership succession and the decision to sell. Complicating things was that the executors of the former Broncos owner Edgar Kaiser claimed they had acquired and could exercise the original ROFR on any type of sale of the team or any interest in the team.
The key legal complexities centered around:
1. Validity of the ROFR After Decades
- The ROFR claim was based on a clause from the 1984 sale fo the Broncos from Edgar Kaiser to Pat Bowlen
- Was that right still valid 30-plus years later, after numerous structural changes to the team and the NFL's evolving franchise rules?
2. Interpretation of Contractual Terms "Sale" and "Transfer":
- The Kaiser Trust argued that if the Bowlen family sold or transferred any stake of any kind (even partial), the right of first refusal was triggered and the Kaiser trust had a right to match the offer.
- We countered that neither restructuring within the family trust nor structure, would trigger ROFR rights because it wasn't the intended sale structure envisioned and expressed in 1984.
3. The Trust Structure and Fiduciary Responsibilities:
- Pat placed the team in the Patrick D. Bowlen Trust, creating a layer of fiduciary duty: Trustees had a duty to protect the interests of the Trust, including if they decided to sell the franchise.
- The heirs disagreed over succession plans.
3. NFL Rules on Ownership
- Any sale required approval from NFL owners under league rules — adding a regulatory overlay that affected timing and media narratives.
- If Kaiser's trust succeeded, delay of the sale was possible.
Why was there so much media interest in the ROFR trial?
Ownership battles in professional sports always draw outsized attention — magnified by the Broncos' historic success and massive Colorado fan base. This combined with the global obsession with high stakes litigation and high-profile individuals and entities, the media is not going to look away. The NFL oversight requiring approval by other owners further fueled media and speculation leading up to the trial. There were also the legacy narratives that the media framed as the end of the "Bowlen era," a poignant story for fans. Every court filing, trustee statement, and leaked internal memo fed a voracious news cycle.
Can you summarize the media results and the role the Litigation Public Relations team played?
Sure. Let's just say they were monumental. Here is a summary:
- 366 digital articles and social posts
- 30 television airings across ABC, Fox, CBS, NBC affiliates
- Total Estimated Audience Reach 1.5B
Our outside Litigation PR team coordinated advanced, on-site and post-trial interviews for me including multiple interviews with Mike Kils, 9News; Fox Denver; Arnie Stapleton, Associated Press; Ryan O'Halloran, The Denver Post; Andrew Beaton, Wall Street Journal; Ken Belson, New York Times; and Law Week Colorado. The team was on-site throughout the trial and managed television crews attending the opening and closing arguments. They fielded all media inquiries, requested coverage corrections and shared filed trial transcripts with select media. The PR team worked extensively with Andrew Beaton, Wall Street Journal, writing summaries as he prepared an extensive article about the case.
What wisdom can you share about managing media's obsession when involved high profile litigation?
When litigation unfolds in the public eye, the stakes extend beyond the courtroom. A single misstep with the media can undermine legal strategies, affect jury pools, and erode public and judicial trust. Effective media management is essential — and it must be handled with the same precision as any other aspect of trial preparation. The single most important point is to not try to litigate your case through the media. You must however be prepared to work with the media to manage the present possible narrative and the accuracy of legal incidences and trial updates.
What kind of support should litigation teams look for when working high profile cases with monumental media interest?
Effective support from highly skilled media consultants have been crucial in the high- profile cases I have tried. Your communications consultant must possess:
- Legal Literacy: An understanding of legal processes, confidentiality, and ethical communication restrictions.
- Strong Media Relationships: Our outside PR counsel has established credibility with local and national journalists. The Litigation PR team sat in the courtroom and provided daily updates to key media and fact-checked articles in advance of publishing to ensure the accuracy of messaging.
- Trial Publicity Management: Our outside PR experts have handled high-profile trials for us before. It is vital that the media consultant has rapid response protocols and crisis communication skills especially during the trial. They must also have a strong commitment to confidentiality and to maintaining your client's reputation.
- Rapid Response Capability: It is imperative that your consultant has both in-depth experience providing immediate counsel and is an impeccable communicator who can rapidly craft media statements and rebuff inaccuracies that will arise.
- Monitoring Tools: It is important that your team has the technology to monitor the social and traditional media landscape in real time so you can identify emerging issues and misinformation early and make fact-based media strategic decisions if and how to respond and how to defuse and correct inaccuracies.
What steps should litigation teams take to manage the accuracy and media outcomes of high-profile cases?
- Prepare for Public Exposure: Assume that filings and motions may become public.
- Prioritize Narrative Control: Proactively manage messaging around client fiduciary duties, business integrity, and concern for stakeholders.
- Anticipate Parallel Narratives: Be ready for emotional "legacy" storytelling to dominate, especially when family businesses or historically public institutions are involved.
- Coordinate with Regulatory Oversight Bodies: Synchronize litigation strategy and public messaging with any governing or regulatory entities.
- Be prepared and comfortable not responding to media inquiries. Sometimes staying out of the coverage is in the best interest of your client and case.
The Denver Broncos Final Right of First Refusal case demonstrated how litigation involving iconic brands can transcend news across global, national and local traditional and social media channels. It was not just about the sale of a sports franchise — it was about trust, legacy, and the extraordinary care needed when fiduciary litigation intersects with media firestorms. Litigation teams that master these dynamics will be best positioned to guide their clients through the gauntlet of public and legal scrutiny.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
