Trust Issues: Who Will Win the Denver Broncos?

The black cloud that hangs over the future of the Denver Broncos is a long way from blowing over. Despite reports coming out of Dove Valley that the path is being cleared for 29-year-old Brittany Bowlen to become the future operating owner of the team, significant legal and internal hurdles remain, with a court date looming next summer.

An Arapahoe County District Court judge will ultimately decide whether the 2009 Pat Bowlen Trust, which appointed three people to a board of trustees to operate the team, is a valid representation of the late owner’s wishes. If he determines that it is not — and that by 2009, Pat Bowlen was already suffering the effects of Alzheimer’s disease, though the diagnosis had not yet been made public — the 2002 version of Bowlen’s trust, which few people have seen and whose contents are still secret, could be reinstated.

When Pat Bowlen officially relinquished day-to-day control of the team in the summer of 2014, the trustees, specifically team CEO Joe Ellis, were put in charge. But a half-dozen sources close to Broncos management say that Ellis had been slowly usurping power long before that, firing several longtime Bowlen allies and effectively running the show for nearly a decade.

Ellis and the two other trustees have now been officially in charge for six seasons, despite the fact that this setup is not in accord with normal National Football League policy. Typically, any “non-interest holder” in a franchise has a two-year window in which to secure permanent ownership. None of the trustees own any part of the Broncos. According to insiders, cozy, long-term relationships between current Broncos execs and the NFL offices have been used to buy time for the trustees to find a permanent owner to their liking, even if it’s not necessarily exactly whom Pat Bowlen would have wanted.

How will all of this play out? Reading between the legal lines, there’s a significant chance that the trustees will not emerge from the court proceedings as operators of the Denver Broncos, and it’s even less likely that Brittany Bowlen will ever become the franchise’s operating owner.

The Players

The 2009 Pat Bowlen Trust was drawn up by attorney Richard Robinson, who has already testified that Pat Bowlen “clearly understood what his assets were and was clear in his directions as to how he wanted his assets to be handled.”

The trustees are led by Ellis, who became COO of the Broncos in 2008, after serving as the Broncos’ executive vice president of business operations since 1998; he’d previously worked for the team in the mid-’80s as director of marketing. But Ellis was becoming a bigger presence around the team — even on the football side of the operation — as early as 2006. Brought in to run the business side, Ellis reportedly thought that the football and business areas should operate as one. Insiders believe that Pat Bowlen was being heavily influenced — even swayed — by Ellis as early as 2008. Even so, Bowlen went against Ellis’s wishes and hired John Elway as vice president of football operations in January 2011. At the same time, he promoted Ellis to president and CEO.

Broncos Executive Vice President and General Counsel Rich Slivka, who has been with the team since 1999, and attorney Mary Kelly — who is married to team attorney/spokesman Dan Reilly — are the other two trustees.

In the board’s current form, the trustees answer to no one but themselves, as Arapahoe District Court Judge Charles Pratt noted in a March 2019 court ruling: “In reviewing this contention, it is important to note that the manner and structure in which Pat Bowlen’s affairs are managed, and the entities in which he owns an interest are owned and controlled, leaves little oversight independent of (The Trust). (The Trust) collectively hold Pat Bowlen’s Power of Attorney, are collectively the sole trustees of the Trusts, and are principals and controlling employees of the underlying business organizations. Under such circumstances, in the context of closely held control and close control of relevant documents, further findings and proceedings are appropriate.”
The trust employs and pays the trustees.
Brittany Bowlen is the third of the five children Pat Bowlen had with his second wife, Annabel. Brittany is a graduate of Notre Dame and earned an MBA from Duke. She worked as a junior intern for the NFL in New York, and also for a marketing firm. She was with the Broncos for a year, then left, and began working for the team again in early December as Vice President of Strategic Initiatives.

Several sources have labeled Brittany “a puppet” of the trustees, who would like to continue in their current ownership/executive roles for the foreseeable future. According to one of the terms set forth by the 2009 trust, Brittany would not be eligible to take control of the franchise for a minimum of five more years as she works to fulfill the trust criteria of “five years of senior management experience.” She currently has one month of requisite time.

In addition, the 2009 Pat Bowlen Trust contains an “age of financial maturity” clause, putting that age at forty. Pat Bowlen was forty when he bought the Broncos from Edgar Kaiser; he believed that no one under the age of forty was financially responsible enough to run a business. (Bowlen’s “ageism” was so strict that he reportedly did not allow any of his offspring under the age of thirty to sit in his private suite during a Bronco game.)

The group that’s contesting the validity of the 2009 trust is led by two children from Pat Bowlen’s first marriage: Beth Bowlen-Wallace and Amie Bowlen-Klemmer. Bowlen-Wallace, 47, has publicly pronounced her desire to take over the team. After running Social Butterfly, an event planning and consulting business in Hawaii, in 2008 she moved back to Denver, where she and her husband founded their own oil and gas company.

Several other members of the Bowlen family, including the late owner’s brothers Bill and John (who, along with his wife, currently owns 24 percent of the team) are backing Bowlen-Wallace’s efforts to take over ownership duties from the trustees. They claim that those were Pat Bowlen’s actual wishes and the trustees are not following them. Bill Bowlen sold his shares in the team in 2002. In October 2018, he filed a lawsuit disputing the trustees’ power of attorney for the Bowlen trust; that case was dismissed in August following Pat Bowlen’s death.

The Playbook

Pat Bowlen’s seven children each own equal shares of the Denver Broncos. Regardless of which child would become the controlling owner — whether Brittany or Beth (none of the others are considered candidates) — that will not change. Nor is there any financial bonus for whoever is selected to operate the team.

Currently, each member of the trust is being paid by the team for their services, as is Mary Kelly’s husband, attorney Reilly. If the team were to be sold to an outside owner, the current shareholders would each profit handsomely, while the trustees would get nothing.

According to insiders, Ellis has worked steadily behind the scenes to cast aside anyone in the front office that he deems a threat to his ultimate authority. In 2013, the same year he dismantled the team’s board of directors, Ellis fired Bowlen confidant and “right-hand man” Jim Schaffer. In the spring of 2012, Bowlen-Wallace, Bowlen’s second-oldest daughter, had become the team’s Director of Special Projects, overseeing the development of the Ring of Fame Plaza outside the stadium, among other things. She was fired by Ellis in 2015, just days after she revealed that she planned to pursue her law degree.

The only significant threat to Ellis’s growing authority was the hiring of Elway in 2011.
If Bowlen-Wallace were to become the controlling owner of the franchise, sources say it’s likely that Ellis and company would be terminated, and the front office of the Broncos would undergo a major “housecleaning.”
But if the trustees win the court battle and Brittany Bowlen’s path to ownership remains clear, then Ellis could keep his current team in their roles. And some members of the organization — including Executive Vice President of Public and Community Relations Patrick Smyth — might receive significant promotions, according to sources.

So far, the NFL has not said how long it would allow the trustees to continue to operate the team, even if the arrangement is in direct contrast to league policy. And even once a successor is named, a majority of the current NFL owners would still have to vote to approve either Bowlen daughter as the new operating owner.

The Highlights

In 2006, Pat Bowlen was diagnosed with Alzheimer’s at the Mayo Clinic in Arizona, though the diagnosis was not made public at the time. Mr. B, as he was known to Broncos followers, was “well into it” by that point, according to a source close to the team, having shown signs of the ailment as early as 2004. In 2009, Bowlen acknowledged publicly to sports columnist Woody Paige that he was suffering from “short-term memory loss.” 

Insiders believe that Ellis, rather than Pat Bowlen, was responsible for the controversial firing of coach Mike Shanahan in 2009; the COO was unhappy with the amount of power a “football guy” (Shanahan) had over a billion-dollar organization. Known for his hands-on involvement in all things relating to team personnel, Pat Bowlen had always been present when personnel changes were made. Yet he was reportedly not present when Shanahan was informed of his dismissal by Ellis. (Nor was Bowlen there when other notable team execs were fired between 2008 and 2014.) One source says that Pat Bowlen became very emotional and regretted the move moments after the press conference announcing Shanahan’s firing had ended.

These same insiders say that it was Ellis and his hand-selected “committee” of underlings, not Bowlen, who were responsible for the hiring of Josh McDaniels as Shanahan’s replacement. It was when McDaniels was fired in 2010 after ten games, they add, that Pat Bowlen, acting under the advice of family members, re-entered the picture and asked his Hall of Fame quarterback to return to the franchise as Executive Vice President of Football Operations. This happened without input from Ellis, who had worked for years to “keep number seven out of the building,” says one source.

When it was announced in 2014 that Pat Bowlen would relinquish day-to-day control of the franchise and Ellis officially took over, Elway was left in charge of football operations. The official statement from the team noted: “Plans for this trust were arranged by Mr. Bowlen beginning more than a decade ago, as part of his succession plan to keep the Broncos in the Bowlen family.” At the time, there was no indication which member of the family might take over operating the team.

At the same time, trust lawyer Reilly issued a statement noting that “the Trustees will continue to execute Pat Bowlen’s long-standing succession plan for the Denver Broncos in compliance with all NFL ownership policies.” But several sources strongly dispute that Bowlen had laid out a succession plan.

In 2015, the trust’s criteria for a future owner were announced. The requirements listed educational and work experience elements, including a bachelor’s degree, along with a master of business administration, a “Juridical Doctorate” law degree (which is what Pat Bowlen had earned from the University of Oklahoma) or another advanced degree that relates to business, plus five years of “senior” management experience with the NFL or the Broncos or Stadium Management company. There were also subjective requirements such as “leadership, integrity and sound judgment.”

Soon thereafter, Bowlen-Wallace announced that she was going to law school. She completed her JD degree at the University of Denver law school in 2016, and in May 2018, announced her interest in becoming the controlling owner of the Denver Broncos. That same day, the trustees issued a statement saying they were not close to being ready to choose a new owner, and dismissed her candidacy: “Simply stated, in the trustees’ judgment, Ms. Wallace lacks the business experience and acumen, knowledge, leadership skills, integrity and character necessary to be the sole individual running an NFL franchise valued at $2.5 billion.”

The statement continued: “As trustees honoring the clear wishes of Pat, we have thoroughly evaluated whether Beth is capable of succeeding her father as controlling owner. We have determined that she is not capable or qualified at this time. We have communicated our decision to Beth and her lawyers on multiple occasions. She is also fully informed as to why her employment with the team ended in 2015. Although Beth has declined our invitations to discuss her qualifications for the last two years, we will continue to proactively engage and meet with any of the Bowlen children who express a desire to earn the right to succeed their father.”

While the front office was mired in these discussions, there was trouble on the field, too. In 2012, Elway had engineered the signing of free agent superstar quarterback Peyton Manning, which led to two trips to the Super Bowl and the franchise’s third Super Bowl victory, in 2015. In the first year after the team won Super Bowl 50 and Manning retired, Denver went 9-7. That was followed by three successive losing seasons.

Since Pat Bowlen bought the team in 1984, the Broncos had never suffered even two consecutive losing campaigns.

The Final Score

In August 2019, Arapahoe County District Court dismissed the lawsuit brought against the trust by Bill Bowlen. While the dismissal was presented as a “win” for the trust and the ownership prospects of Brittany Bowlen, a review of the documents makes it clear that the case — based on a challenge to the power of attorney granted to Ellis by the trust — was dropped on the grounds that after Pat Bowlen’s passing, Bill Bowlen no longer had any “property interest” in the Pat Bowlen estate, making the legal challenge irrelevant.

In the same decision, however, Judge John Scipione voiced serious concerns about the validity of the trust, how it was formed and apparent conflicts of interest: “Legitimate claims regarding [the trust’s] performance as agents (of the Pat Bowlen Estate) may well be justiciable,” he said.

Shortly after that case was dismissed, Beth Bowlen-Wallace and Amie Bowlen-Klemmer filed their suit, challenging the validity of the 2009 version of the trust.

In March 2019, the NFL had appointed an arbitrator, former San Francisco 49ers executive Carmen Policy, to handle the question of the Broncos’ ownership succession. But Judge Scipione made it clear that the court will have final jurisdiction on the matter, and that arbitration decisions that occur before the court renders an opinion would be non-binding legally. “Based on the record before this Court, the resolution of the NFL arbitration concerning the ownership and control of the Denver Broncos Football Club will have minimal, if any, legal or evidentiary effect on the claims before this Court,” he wrote.

As a result, an arbitration hearing that had been planned for early November 2019 was postponed indefinitely. Neither the Broncos organization nor the NFL offices would comment on the status of the arbitration.

The 2009 Pat Bowlen Trust is slated to have another day in court sometime next summer, when the case filed by the two eldest Bowlen daughters is finally heard. At that point, the judge can rule that the 2009 trust documents are valid, allowing the trustees to remain in charge of the franchise for the foreseeable future. Or the court can determine that in 2009, Pat Bowlen was subjected to “undue influence” when the new version of the trust was put into place — in which case the 2009 trust would be ruled invalid and the 2002 version of the trust, whose provisions for future ownership are still unknown, would be reinstated.

Or the league could step in and somehow engineer the sale of the team to an outside party. There is apparently no current consensus among the Broncos shareholders as to which Bowlen sibling should become the controlling owner; if the NFL sees a less-than-united front, it could push for a sale.

The franchise is reportedly now valued at nearly $3 billion. Selling the team was always said to be a “last resort” for Pat Bowlen, who had hoped that his family could operate much like the Rooney family in Pittsburgh has done for generations with the Steelers.

But that last hope could be quashed unless the court calls the right play.

Mark Knudson is a former Major League Baseball pitcher and veteran sports columnist/radio broadcaster in the Denver area. He currently writes a weekly column for WoodyPaige.com and co-hosts Klahr & Kompany on ESPN Radio Denver on Saturday mornings.