by Andrew Brandt
April 06, 02011
The NFL takes center stage today in Minneapolis, exactly two months from when it took center stage in Dallas. No, not in the collapsed Metrodome but rather in the courtroom of Judge Susan Nelson, who becomes the key player in the NFL. She will hear arguments on whether to grant the plaintiffs in Brady v. NFL (the Players) a preliminary injunction (injunction) that would potentially end the lockout and resume business in the NFL, albeit in the midst of litigation.
The Briefs have been filed, with my summaries of each here and here. The lawyers will make their twenty-minute arguments followed by rebuttal; the media is standing outside the courthouse (I’ll be sitting in the ESPN studios giving my take off of Ed Werder's reporting). We’re ready to go.
Judge Nelson has different options in front of her and has significant judicial discretion. Here are the possibilities. She could:
1. Deny the Injunction (Keep the lockout in place)
This would be put the NFL in the driver’s seat for negotiation/settlement discussions towards resolving this two-year old dispute.
Simply, the lockout would continue: there will be no signings, no trades, no player workouts or rehabilitation at the facility, no contact between teams and players or agents. Nothing.
The lockout is all about leverage. The NFL owners want to make a deal on their terms. With the slow pace of litigation, this result will put the Players on the defensive in settlement talks. The NFL will try to wait the Players out until the solidarity of March ebbs in July.
2. Grant the Injunction (Lift the lockout)
This is the result football fans want, although it is not as ideal as it sounds. Yes, football might be back in business and fans may celebrate. However, hold the phone…
The NFL will appeal this result to the Eighth Circuit Court of Appeals. The question then becomes whether the NFL will resume business during appeal or whether the injunction is stayed (held), meaning more of the lockout.
Judge Nelson has great discretion here. She can grant the injunction and order it be enforced immediately – meaning the NFL must lift the lockout – regardless of appeal. Or she could stay the injunction (maintain the lockout) while the NFL appeals. It is up to her, but my sense is the lockout continues upon appeal.
ICONOral arguments will be made with time for rebuttal.
There is a remote chance that Judge Nelson could “rule from the bench” and announce her decision today after oral arguments, but that is unlikely. She will likely issue her decision in 7-10 days.
Upon appeal, the Eighth Circuit would set a hearing date probably within 2-4 weeks of the appeal. From that point, the Eighth Circuit would probably take another week or two to issue their opinion.
Thus, there will likely be, at the least, a few weeks more of courtroom football.
The other options
While the two options above are the clearest in the “winner” and “loser” categories, there are two other options that could occur.
3. Back to the NLRB
Parallel to this entire courtroom drama has been the track the NFL pursuing an unfair labor practice charge in front of the National Labor Relations Board (NLRB). The Owners refuse to accept that the NFL has decertified, referring to their dissolution as a “fake suicide”.
The NFL filed a complaint with the NLRB on February 14, amended in March, arguing that the former union is still a present union. They have asked Judge Nelson to defer so that the NLRB first determines whether there is still a union. And if there is a still a union, the Players cannot file an antitrust claim.
Judge Nelson could refuse to rule here and defer to the NLRB before taking the case. That result would be extremely beneficial for Owners as the result would be the clock ticking while the Players are locked out.
And the NLRB’s time frame is turtle-like. It could take months or, yes, years.
My sense is this result is unlikely, as Judge Nelson will want to rule on this subject matter, as has this Court several times before.
4. Go talk some more
Another avenue that Judge Nelson could take is order the parties to talk about their differences more before appearing in front of her. She could mandate that they engage in settlement talks or she could order them back to the mediation table from which they left on March 11th. That mediation could be back with George Cohen, through her supervision or with another mediator.
Although this result would continue to delay the process, it may make the most sense. Both sides have been quick to say how hard they have tried to reach a deal; this result would put them back in a room to prove just that.
What will happen?
The Briefs were both compelling and well written. Judge Nelson, unlike the renowned Judge Doty, appears to have no bias and leaning. Thus, this is as hard to handicap as any football game of the season.
If I had to advise Judge Nelson (no, she hasn’t asked), I would suggest the final option. The parties have not talked since March 11th, some 26 days. Why not push them to talk some more before coming in front of her again?
Issues to overcome for each side
The Players may have a tough time showing “irreparable harm”- the standard of proof to grant the injunction -- if the lockout is not lifted. Yes, they need every opportunity to impress coaches in their short careers and that there are potentially 500 free agents that need to find employment.
However, it is five months from the start of the season. And as to the Players’ short careers, there is an argument that the lockout actually preserves the players, not subject to injury risk and wear and tear while being locked out. Further, the Players have asked for monetary damages in this lawsuit, lessening the need for other forms of relief (i.e, the injunction).
The Owners, however, are unfortunately dealing with the same court that has dealt them blows in the past. And although Judge Doty is not handling the case, he may be lurking over the shoulder of the relatively new Judge Nelson. We can't discount the Doty factor.
Let the game begin. The most important person in the NFL – Judge Susan Nelson – has the ball.
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