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To stay or not to stay

That is the question for the 8th Circuit: a primer Andrew Brandt

Print This May 09, 2011, 12:01 PM EST

We will know very soon whether the NFL lockout -- in effect since March 12 albeit with a brief two-day interruption -- will continue at least through mid-June. The Eighth Circuit Court of Appeals (the Court) ruled ten days ago to allow the lockout to stay in effect temporarily while deciding on a longer stay. That decision has been pending and we should have a ruling – I think – today or tomorrow.

Of course, predicting outcomes in court is harder than predicting outcomes in games --  are there Vegas odds on the Eighth Circuit? With that caveat, let’s look at the decision ahead in Courtroom football whether the NFL opens for business this week or not.

Why the Court would rule for the Players (lift the lockout)

1. Deference to Judge Nelson's ruling in the lower court. Nelson was emphatic that the lockout should not continue and, if not lifted, could continue – in theory – forever. This stay ruling will preview how much deference the Court gives to Nelson.

2. Players are suffering “irreparable harm”. The Court would agree with Judge Nelson on the players’ need to immediately get back to work to showcase their talent or, in the case free agents, find a team.

3. The NFL did not make the requisite showing for a permanent stay (i.e., the four factor test).   Primarily, the Court would find the NFL did not make a strong showing of likely success on merits of the case. This would again forecast the decision on the appeal in June.

4. Rejection of the NFL's jurisdictional arguments: that the case belongs in front of the National Labor Relations Board (NLRB) and that the Norris-Laguardia Act precludes injunctions arising out of labor disputes. Nelson rejected these arguments.

Why the Court would rule in favor of the NFL (maintain the lockout)

1. Acceptance of the NFL's jurisdictional arguments (NLRB and/or Norris-LaGuardia); that Judge Nelson should have waited for the NLRB to issue their views on whether the NFLPA decertification was valid.

2. Accepting the NFL's “irreparable harm” argument: that if the lockout is lifted during the appeals process, then subsequently ruled valid on appeal, there would have to be messy "unscrambling of eggs" of player transactions.

Wes WelkerICONWelker's comments were used against the Players.

3. Rejecting the Players “irreparable harm” argument: we are in May/June. This would be giving weight to player comments by Wes Welker, Ray Lewis and others about enjoying their time off during the lockout.

4. Believing the expedited appeal schedule -- hearing on June 3rd -- minimizes harm to the players. Both the Players and Judge Nelson had remarked that the appeals process could extend into season.

5. Accepting the NFL's labor law right to lockout.

Possible reasons for delay

1. Of the three judges on the Court’s panel, two are on different sides and one is on the fence vacillating.

2. It is a close call, and the judges are writing a lengthy opinion and/or dissent.

3. The Court will simply allow the temporary stay to stand. Though a possibility, I think this is very unlikely.

4. As much as we care about football, the Court has other things going on; they'll get to it when they get to it.

Prediction

If pressed to handicap it, I believe the Court rules in favor of NFL, maintaining the lockout pending the June 3rd appeal outcome.

The fact that the Court issued a temporary stay immediately and now has waited ten days -- and counting -- would indicate that they may not see Players having immediate and irreparable harm. And the expedited appeal schedule allows for time for this entire drama to be settled prior to the start of any actual football games.

Of course, reading tealeaves in these cases can be folly, but that is where we are in Courtroom football. And so we wait.

Follow me on Twitter at adbrandt.

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