good morning to please the court joe rice from up there rice in charleston south carolina here on behalf of the look in your limited partnership also referred to as the tampa bay buccaneers we're here to ask the court to reverse this ruling by judge e tampa bay buccaneers or members of the n f l venture n f l venture is the entity that manages markets promotes the twenty thirty two n f l football team they have different branches that roll up into it but it has a physical year that follows the football season which is april one to march thirty one in two thousand and ten the collective bargaining agreement between the f l p leagues and the players association expired and although efforts to try to renew it had failed we go into april first of two thousand and eleven with a lockout in the n f l football which the board of the ventures determined there wasn't going to be a football season and they directed the partners to accrued eight point two million dollars project i took to mean dollars in income for two thousand and eleven and tampa bay accrued starting in april and may and you know ever say to accrue it from an accounting perspective during these months that are being contested it was a crude when it was realized that the this was the income that was certain to come in that wasn't contingent upon the football games being played and under accru venture two thousand and two thousand and ten tax returns are on the public web other financial records and is public information that the thirty two teams each have a representative on the management of the venture and all the teams generally not that we have any reference nor did the buccaneers change their accounting practices they are were only accrual accounting methodology for two thousand and ten and two thousand and eleven what's the evidence that this actually was decided by the buccaneers in two thousand as opposed to after the fact when everyone realized how the spill settlement was to work because these records were all created before and the some contemporaneous two thousand and ten and two thousand and eleven records were produced to the center years after and after a long struggle and you don't have anything though for from the general eck and i saw there's i think the expert that your law firm has been using in these cases has a pint in this case on the accounting but is there anything from the buccaneers regular accountant slash auditors that say we decided back in two thousand and eleven when we heard about the lockout that we were going to treat this revenue different in the affidavit of mr denner which is seventeen fifty one in the record he says during april may football was facing a lockout but my second question is there any evidence from the buccaneers regular accountants saying in two thousand and eleven i saw this letter from the n f l and i just we decided pursuant to general accounting principles we're going to treat the revenue different this year than we have in massive records in the financial records of the buccaneers i know that but is there anything from the accountants and i soon the buccaneers use a pretty big accounting firm there's nothing from them saying why they treated this way or in fact that they did make the decision in two thousand and eleven or is there there is nothing from those accounts there is no law to pull citations in the record to accounting books accounting instructions s s e instructions that tell you that when you have instructions that the the revenue is recently to be done a performance is done and you accrue it in the cruel accounting method accrual me just reporting that the receipt of the money and the appeal panel made the fin that they were instructed to do it and make the finding that the when the payments were made they had recruit them and i think they were reviewing judge barbie's decision right so is correct what is the standard of review for his decision that in the state was made in putting its i th think they're wrong what's the standard for i believe it's abuse of discretion because it's an interpretation of the document and i think you have a de novo review the the four ninety five decision and decisions that each of you have sat on have made it perfectly clear that you don't move revenues unless there is an error and you defined error in four ninety five and here the claim defenders accounting vendors at the claim center the did not find an error the appeal panel made it perfectly clear that there was no ever found here judge bar b a goes and presumes an error he says he starts with the factual presume is that it was contract that was contrary and that was an error he said that these were wrong these were not won't is there never been treated as well as you look at the two thousand and nine to two thousand and ten tax returns that were in the record there's a place to identify a role t wrong thing because it would not have been subject to the two point nine percent medicare tax we're talking about forty million dollars here we're talking about significant tax savings if they could have traded was rolled they could they treated his ordinary income in nine ten and eleven so judge barbie erred in making a factual finding that these were roll to income the second issue that they are that is he presumed that the money should go into the football season because that's where the expenses are there were no expenses this is a joint venture these are revenues coming out of the venture but all of the expenses would have been incurred because of the every year and i think if every year you just said i agree this isn't necessarily tied to the football season the buccaneers and all these teams have a brand that people are buying jerseys in february and april and every month of the year so starting from scratch i don't see why it necessarily has to be in the fall but what in two thousand and eleven when these records were recorded when these documents were created when these tax returns were filed no one knew what was going to happen in the resolution of the appeals built we were in the infancy of the negotiation and i had no idea what was going to happen no but it could have conceived at that point in time that we were going to have a settlement agreement that had a causation presumption and had i think the other side dispute that the their practice they used a business judgment in april of two thousand and eleven to tell the teens we're going to lock out your revenue for this year is going to be eight don't want two million dollars not the historical revenue we're not going to have the fall accrue it was in may of two thousand and eleven when they got the instructions from the league and the accountants were in a cruel method and the appropriate treatment under cruel accounting methodology was when you got the information the monthly basis just like in july when the lockout ended and there was agreement in principle they changed the practice because there was a new forecast that's all the case would be so easy to produce an affidavit from a buccaneers accountant who said i made this decision back in april i got this estimate from the n f l i talk to someone so in there and then we want to be here and i i don't think there'd be any real issue here in hindsight i guess you're right honor and may place the court george thanks for the at least the tampa bay buccaneers football team wants twenty million dollars from b p based on the happenstance of its own accounting error in two thousand and nine and two thousand and ten the team recorded royalties from n f l ventures during the months of the n f l season in two thousand and eleven however the team recorded some of those same royalties in may and june but literally the only thing that changed in two thousand and eleven as compared to two thousand and nine and two thousand and ten was that in two thousand and eleven there was the hypothetical possibility that some or all of the n f l season much later that year might be cancelled due to a work stoppage but by july everyone knew that this was no longer the case the stoppage never occurred and the n f l season proceeded as usual just like in two thousand and nine and two thousand and ten therefore at the end of the year two thousand and eleven was no different than two thousand and nine in two thousand and ten yet the team still kept the royalties recorded in may in june rather than recording them to the months of the n f l season despite the fact that in previous years they had recorded during the n f l season and despite the fact that in other contexts the team consistently in gauged in such we recording at year end but your honor i think that first of all they had been reporting them as royalties in previous years on their own p and l but i think the more important thing is that they told the c s s p the program accountant in their claim as part of this demand for twenty million dollars that they were royalties and the program accountants justifiably relied on that that's at record fifteen eighty one and record seven hundred sixty and even in their opening brief they they refer i think rather euphemistically they say royalty qualities exist within the ventures revenues so i think that when you put the two of those together you know both the euphemistic admission and then what they actually submitted to the program accountants and on which the program accountants relied that i think that that's what you have to go with when it comes to the the program accountants determination but keeping this revenue in may in june two thousand and eleven it has no basis in a cool accounting it deviates from the team's consistent practice in previous years and with respect to other revenue it was one month march of two thousand and nine when they did accrue some of what some of these big right your honor and that's because during the year two thousand and nine they were using a modified cash accounting approach and so they would do it when they actually happened to get the cash in hand from the n f l but in two thousand and nine what they did in order to because they were moving to accrual accounting they did a true up and so at the end of the year according to actual accrual accounting principles they had the revenue recorded in the months of the n f l season again just as they did in two thousand and ten and then they deviated from that in two thousand and eleven and i do want to sort of respond directly to some of the statements that my friend on the in april may june of two thousand and eleven the answer is very directly no the only evidence that is in the record at all about this entire crux of the dispute because i know that this vaunted forecast is and even in the record which i think would have gone a long way towards supporting their their accounting claim but the only evidence is the affidavit and the affidavit very clearly says the n f l provided a quote revenue forecast of amounts estimated to be earned during april two thousand and eleven to march two thousand and twelve in case a new collective bargaining agreement could not be reached then it says based on this information the revenue was recognized by the buccaneers and after the collective bargain agreement was agreed to the buccaneers then recorded it throughout the rest of the two thousand and eleven season so there's absolutely nothing in that affidavit that even can be suggested that the n f l itself directed these revenues should be recorded or had to be recorded in may and june of two thousand and eleven and of course you know it certainly questionable whether at the n f l head director that that that would be no matter for accounting principles but the point is that there's absolutely no direction and to judge ali one of your questions i believe would again was whether there's any evidence in the record that any other team did this and the answer is again no there is not any record evidence of that and i think that that's a theme that sort of permeates i mean if you don't we don't we don't have any access to discovery either during the claims process and i think that it is frankly incumbent upon the claimant to come up with record evidence and accounting principles and accounting reasons at the time if they're going to submit a claim and demand twenty million dollars and the fact is that they haven't they haven't submitted the government you can obviously go ask someone for help with your claim will sure  use and so i would use them in an affidavit saying what you did i mean that nothing prevents well know that i mean there's nothing preventing that at all and i think that you know if if you know they're with the other thirty one n f l teams and apparently they all sit on a board together i don't think it actually would have been a great b at all to try to come up with some sort of affidavit some sort of statement that would support well sure i mean i think that there's also certainly questions about well and i think that it is incumbent upon them to come up with something like that but but there hasn't been throughout any level in this case whether it's before the program accountants who are the only accountants in this p well sure and they haven't done that and they haven't put in any any expert testimony of an accountant there's nothing in their briefs before the appeal panel before judge r b a before this court that provides any rule of accounting or any principle or any methodology a treatise anything that would support the idea that they can you know make a shift in how they're going to record this revenue as good as compared to previous years but also then be able to justify that shift by saying that we received you know just this forecast of estimated amounts from the n f l based on a hypothetical possibility and then also keep those revenues in those months when it was determined and known by everybody a couple months later that the hypothetical possibility was not going to happen so i think that you know when you put all of that together you should at least be required to come up with some sort of record evidence to support the facts but then also accounting principles or counting methodology or something that you know what at least show that what the experts in this case the expert accountants didn't do your honor i don't know what the tax consequences are mean that's the first i've heard that it would be sort of favorable to them in a in a tax situation to require them to differ way but certainly not on the month ok but but to go to the question of recording recording these revenues in this month's makes all the difference it is dispositive it is the only way that they are able to get in the door of of the claims process and be able to m as as far as i know and i can't discern any other economic benefit that there would be to having i'm sorry i have not seen any in any of the briefing at any stage here well it is what makes this claim possible and you know there's no other way to put it other than that and you know i i want to respond to a couple as you know most of the cases we get on appeal the district court has denied then those are of course reviewed for clear error if he did in gauge in some sort of interpretation of case law or the settlement that would be to no avail but you know i do want to push back on this idea of the use of discretion slashed innova which i don't think is a thing but it's also not applicable here and i think that if you take a look at judge barbie is order he he made findings about the how the buccaneers treated at this particular revenue in previous years how they did a different thing in two thousand and eleven and then he went on to say that the buccaneers reason for deviating from that policy they put forth as justification based on this this affidavit describing a forecast that is not on the record he said that's not persuasive and those to me all seem to sound in factual findings i mean they're really kind of looking back at what the accountants did using their their professional expertise as the program the neutral program accountants so i think that you know looking at his decision in the context of what the professional experts did i think those are all findings that deserve a clear error that there's not a done novo issue here and i think it  clearly be said that there was not any clear error in his particular findings you know and he does make the statement about that presumably and i and my friend brought this up that presumably they did this to match up the the revenues with the expenses i don't think that's clearly erroneous but i also don't think it really matters because the important thing is what they did in previous seasons so in two thousand and nine and two thousand and ten they record these revenues during the n f l season and then in two thousand and eleven they did not do that they deviated from that practice and i don't think there's any dispute over that which in there is a whole discussion of do we have records of what actually was entered into in from the buccaneers you know particularly the p and l statements that are sort of critical to all this and and even then there was nothing in those particular records that indicated that they were contemporaneous i mean i think i think you were the huge cost to point out that it's not it it's not you know there may be a large volume but it's not a difficult lift to go to your regular accountants and say could you please you know run the p and l statements for these particular years because we're submitting them as part of a claim and i think that i mean that's sort of the threshold thing you have to do to stablish and submit a claim here is to submit documentation that you were harmed by the spill and satisfy these particular tests and so i think the fact that it took the buccaneers a year to do that you know and and even then i believe that this affidavit i think it i believe i dated it was not part of the original record that they even submitted to the program accountants it's dated april twenty sixth scene and i believe the original decision by the program accountants which march twenty sixth seemed so again i think this all just sort of goes to you know the the the determination that you know they contemporaneous documents that they were required to submit to the program in order to accounting at the time and again that there's nothing in the record about that this does seem to have been all created after the fact which again we think just sort of supports the notion that that that there was not sufficient documentation to because judge barbie a principal find it was the role of the incomes and then he said and their expenses were related to the football season so he sort of used the matching theory and said so presumably they used them historically in the football season because that's where their expenses were but there is nothing in the record to support that whatsoever and he said that it was an error to move the rule to no one had found error your honour's asking me several questions about what what didn't go in the record the record was not challenged at all below the calc danders got everything they wanted they issued a decision we went through two or three different  they had a previous case a previous debate about ticketing in c roll out sic payments we went through that there was massive work in this case with the accounts no one's ever challenges nothing in his record challenging the contemporaneous nature of these documents until this appeal brief in judge bar began he didn't challenge it and remember they appeal from our panel ruling in our favor and the panel ruling in our favor made a finding a review of the record discloses that claim it received from the n f l fixed monthly payments as part of the league's revenue share under normal business conditions these were made over the course of the season we had a unique situation and they found that the accounting vendors did not sign an era there was no mention of there in any of the records the first mention of terra is in judge barbie a opinion when it deals with a role to polic best of bailable information at the time that has been upheld by this court all multiple occasions the record is replete with statements of financial accounting concepts as the c scott occasions all of these are in the extended record they say that for purposes of applying accrual accounting you accrued when persuasive evidence of an arrangement exist delivery has occurred or services have been rendered seller's price of the buyer stakes or determinable and collectability is reasonably assured that's when you have to accrue and that's exactly what the account is here did they accrued under those principles of cruel accounting depicts the effects of transactions at other events and circumstances which and you do it based on the best information you have at the time and in april of two thousand and eleven the best information is our incomes going to be level we're not going to have the bucks for the football season and therefore we accrued as we have the realization  the claim it properly a product accrual accounting methods claim it accrued the income as it was dreaded do so and as accounting principles and there's no evidence there's a lot of speculation in this last brief that the file raised for the first time but there's no evidence to support any of their speculation and i believe the reason we have the speculation is because they can't prove under this court rules that there was an era that justified a moving revenue in the absence of an era you do not move revenue