As disconcerting as it is to read this, we have reached the most important date on the NFL Calendar in 2011. The bad news is that it occurs in a courtroom. The good news is that it may be the last of Courtroom football we see – we hope – as the ruling in this case may direct the losing party towards purposeful negotiations of a new collective bargaining agreement. And the better news is those negotiations may have already begun, with news of a "secret meeting" in Chicago with decision-makers for both sides talking about their differences towards, hopefully, some common ground. Against this hopeful -- although early -- backdrop, let's look at the big day in Court today.
Sequence of Arguments at Hearing
ICONThe two sides have a half hour each to present their cases to the Court.
Oral arguments will begin today at 10:00 AM Central time in St. Louis in front of a three-member panel of the Eighth Circuit Court of Appeals (the Court). Each side is allotted 30 minutes, with the Owners opening, the Players responding, and the Owners given extra time to reply to Players' arguments. Based upon what happened at the preliminary injunction hearing in front of Judge Nelson on April 6th, my feeling is that both sides will go longer than 30 minutes. With exhaustive briefs having been filed, the judges will have plenty of questions directed at these two parties, and the oral arguments will be heavily controlled by the call of these questions, rather than the attorneys.
Quarterback for the Players
The key player in today’s hearing may be Theodore Olson, the former solicitor general under George W. Bush. Today will be Olson's show; he represents the change agent for the Players. He has served as private counsel to two Presidents, Ronald Reagan and George W. Bush, and was Solicitor General from 2001-2004. He has argued 58 cases to the US Supreme Court, including the two Bush v. Gore cases, and has prevailed in 75% of those 58 cases. His staunch Republican background cannot be discounted in front of two Republican appointees that have ruled against the Players twice.
New Voice for Owners as well
The Owners will also have a new voice representing their interests. Paul Clement – who succeeded Olson as Bush’s solicitor general in 2005 – will argue for the Owners. Clement is more reserved than his friend Olson. His brief to the Court was persuasive. Clement is known for his upstanding legal ethics. Earlier this year, when his law firm backed out of representing the U.S. House of Representatives in defending the Defense of Marriage Act, Clement quit in protest.
Let’s look at what may happen:
Why the Court would rule for the Players
(1) Although the Court voted 2-1 in favor of the Owners, the dissenting judge, Judge Bye, was emphatic in supporting the Players in both the temporary and permanent stays. Through their written brief and oral arguments, the Players need only persuade one of the two other judges to switch sides and rule in their favor.
(2) The Court might completely reject the Owners’ Norris-LaGuardia Act arguments, reasoning that the Owners' interpretation turns the Act completely 180 degrees, and noting that no court has ever held that the Act applies to employer lockouts. Such a ruling would severely cripple the Owners’ arguments and result in the Court upholding Judge Nelson's injunction, thereby ending the NFL lockout pending further appeal.
(3) The Court could also find that the NFLPA's decertification was valid. In doing so, the Players would stand a better 'likelihood of success on the merits' of their underlying antitrust claim, one of the most important factors of the preliminary injunction test.
Why the Court would rule for the Owners
(1) The Court waited seventeen days between issuing a temporary stay and ruling on the permanent stay. In the event the Court truly believed that the Players were suffering irreparable harm, logic would dictate that the permanent stay ruling would have come sooner. Also, in their order granting the permanent stay, Judges Benton and Colloton may have tipped their hand, expressing that they "have serious doubts that the district court had jurisdiction to enjoin the League's lockout."
(2) The Court could find that this case does in fact "involve or grow out of a labor dispute" and that the Act applies. This would prohibit the District Court of Minnesota (Judge Nelson) from issuing an injunction.
(3) Even if the Act does not apply, the Court could rule that Judge Nelson must delay issuing an injunction until she receives detailed findings from the NLRB, which is in the process – however slowly – of determining whether or not the NFLPA's decertification was valid and effective.
Courts typically are inclined to rule narrowly on the issue(s) presented, fearing that a broad ruling may lead to unforeseen consequences. However, there is a slight chance that the Court could not only agree with the Owners’ arguments – as they did on the stay – but also go further and grant the Owners’ a home run at this stage.
The Court could rule that the nonstatutory labor exemption is still intact and nullify the entire basis for the lawsuit by the Players against the Owners. In Brown v. Pro Football, the Supreme Court held that the nonstatutory labor exemption – protecting the NFL against antitrust claims – continues to apply "sufficiently distant in time and in circumstances" beyond the collective bargaining process, opening the door for the Eighth Circuit to possibly conclude that the NFLPA's March 11 decertification was not sufficiently distant in time or circumstances, since it occurred within a couple hours of a collective bargaining session.
This expansive holding would seriously impair Brady v. NFL and send a message to Judge Nelson that there is no need to go forward at this point in time. If the Court is inclined to ultimately reverse the underlying antitrust claim at some point down the road (which could be a year or two), the appellate judges may feel that it is a waste of judicial resources for Judge Nelson to begin the trial process – order discovery, accommodate pretrial motions, etc. – on the Brady antitrust lawsuit.
My sense is the Court will rule narrowly, but the possibility does exist for the above scenario.
Judge Nelson took exactly three weeks from the day of oral argument to rule on the preliminary injunction. We can expect to see a similar timeframe; expect a ruling in late June.
En Banc Hearing and Supreme Court
The losing party is able to request a rehearing of the matter in front of the full panel of 11 judges of the Eighth Circuit Court of Appeals – this is known as an "en banc rehearing." The losing party would first need to convince a majority of the justices (6 of 11) to grant the rehearing. En banc rehearings are not granted lightly, and it is unlikely here. Even if granted, it has the potential to disrupt the start of the NFL season, as the en banc process could take us into October.
The losing party can also apply to the U.S. Supreme Court, although landing on the Supreme Court's docket would be even more difficult than gaining an en banc rehearing. Even if successful, the case would not be heard until sometime deep into 2012.
Although it is extremely difficult to handicap this sort of proceeding, the language from the Court's stay order – stating that they have "serious doubts" about Judge Nelson's ability to block the lockout – does present an initial obstacle for the Players. Right now, the Owners appear to have the slight advantage, and need only maintain the status quo.
The Players, on the other hand, are tasked with swaying one judge to rule in their favor. The Players – in their legal brief – have made clear that if the Court sides with the Owners' Norris-LaGuardia Act arguments, it contradicts 80 years of case law and also ignores the legislative purpose of the Act. This line of reasoning may persuade one judge.
And, of course, negotiations without the lawyers will continue, perhaps as soon as early next week. While football stays dark, the business/law of football keeps churning.
Going into the hearing -- which I am doing this morning – I would give the Owners an edge. However, to bring it back to the field, “that’s why they play the game (have the hearing?)”.
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