Media & Entertainment Law

Corporate Executive Compensation and the NFL

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

Bank Bonus Tab: $33 Billion
Nine Lenders That Got U.S. Aid Paid at Least $1 Million Each to 5,000 Employees

Splashed across the the front page of the Wall Street Journal Friday (7.31.09) was the news that nearly $33 billion in executive and employee performance bonuses were paid out in 2008 by nine Wall Street banks that had accepted government bailout money through the TARP program. Despite near collapse and a necessary rescue from the government, nine investment banks still paid the executives and employees that presided over the catastrophic declines $32.6 billion in bonuses.

This news comes on the heels of reports on Thursday (7.23.09) that Goldman Sachs, Morgan Stanley and JPMorgan Chase had set aside dozens of billions of dollars to pay their executives and other employees for 2009 performance. On the same day that Goldman Sachs announced that it would likely (if the pace of set asides continues this year) pay its executives an average of $775,000 in 2009, more than double that of 2008 and more than bonuses paid in 2007, a report on unemployment indicated that jobless claims increased more than expected, and the Federal Reserve expects the unemployment rate to top 10 percent by year-end.

As unemployment increases on Main Street, over on Wall Street, the song seems to remain the same. Executives and employees will receive significant performance bonuses in 2009 despite receiving government bailout funds and in many instances presiding over a near collapse of the banking industry. More shocking than the plans to compensate for 2009 is the New York Attorney General Andrew Cuomo report that $32.6 billion in bonuses were paid out in the wretched economic performance year of 2008. What gives?

Common sense seems to dictate that if performance is dismal, then bonuses should match that performance (meaning, very little should be paid in bonuses). Remember, that bonuses are paid to executives and employees in addition to salary. In the the National Football League, performance bonuses are negotiated in advance between an athlete and a professional club, and those bonuses are simply not paid if the negotiated performance is not met. Many bonuses in professional sports are team based, indicating that if a team reaches a certain level of success, then bonuses will be paid to a particular player. The NFL collective bargaining agreement even breaks bonuses down for purposes of the salary cap, into "likely to be earned" bonuses and "not likely to be earned" and those bonuses count differently toward a team's overall budget and cap number. In the NFL, bonuses are paid for successful performance and are in excess to an athlete's base salary.

Apparently on Wall Street, a much different conceptualization attaches to performance bonuses than in the world of professional sports. Nine investment banks received bailout funds rather than face collapse, and then turned around in that environment of "failure," and paid bonuses to its executives and employees that presided over that dismal performance, above and beyond salary, to the tune of $33 billion. In some ways, one could interpret this payout as taxpayers (through the TARP bailout) subsidizing the performance bonuses that were paid to executives that engaged in breathtaking risk and lost badly. As would be expected, Congress is inflamed. Edolphus Towns, the chairperson of the U.S. House of Representatives investigative panel called the payouts "shocking and appalling" and announced hearings.

Those that defend paying significant bonuses in the face of failed performance typically claim the following: (1) Wall Street must pay to keep talent at their firms; (2) that only a small group of executives or employees are typically responsible for losses and it is unfair to punish employees or executives in other areas of the business.

AG Cuomo stated: "The banks say they pay for performance. . . . Yet in 2008 there was no performance and they still continued to pay out huge sums of money."

I get the argument that individuals that were not responsible for the damning losses and egregious decision making should not be held responsible or "punished" for the "sins" of the few. Still, that argument fails to appreciate the broken executive compensation system in place on Wall Street. Over and over again, Wall Street executives have shown that they exist in a much different space than the rest of America. From the AIG "retreat" to a posh resort moments after receiving bailout funds to the $33 billion in bonus payouts for 2008 performance, those that run Wall Street seem incapable of recognizing Main Street and the human suffering that continues unabated for many based almost wholly on reckless and irresponsible leadership by Wall Street executives.

What to do about executive compensation?

** Cross posted on the "Corporate Justice Blog" **
See: http://corporatejusticeblog.blogspot.com/

Full post as published by Sports Law Blog on August 04, 2009 (boomark / email).