Legal Commentary

In a story that mixes sports, tax, non-profits, agencies, executive compensation, and questions about federalism, the New York Times reports today that the NFL is lobbying Congress for an exemption from a new IRS requirement that salaries over $150,000 be publicly disclosed.  This requirement is part of a larger move to apply Sarbanes-Oxley-type corporate governance measures to the non-profit sector, raising questions about the purposes of disclosure in the two contexts and whom the non-profit serves.  (Dana Brakman Reiser and others have written in this area.) 

The IRS requirements about executive compensation likely come in for some of the same critiques as the increased SEC requirements on the for-profit side, including:

- That disclosure has the perverse effect of escalating salaries as employees use the available information to negotiate salary and raises.

- That executive compensation is not just a salary figure.  In the for-profit world, at least, and in the high-profile Richard Grasso/NYSE non-profit case, much of the "compensation" comes from complex formulas of retirement income.  So it matters how these figures are disclosed and what counts as compensation.

- And, more generally, that these rules federalize corporate governance, traditionally the domain of states, moving corporate governance to the SEC (for-profit) and IRS (non-profit).

So far, it looks like the NFL has argued that it's a trade association rather than a charity.  The NFL's lobbying memo apparently says that "We believe that people who need to know about salaries paid to N.F.L. staff are the owners, who already can access that information. No valid purpose is served to supply the same information to the general public.?  True?