by Andrew Brandt
April 27, 02011
As we catch our breath from the craziness of the past two days, let's reset on where we are in Courtroom football after Judge Nelson's ruling to lift the lockout on Monday night, and while we await here ruling on whether to lift the lockout while the appeal process takes place:
Why did Judge Nelson rule in favor of the Players?
As discussed, Judge Nelson was not swayed by the NFL's arguments. From the moment she took the case, it was obvious that she would not defer to the National Labor Relations Board (NLRB).
Judge Nelson wholeheartedly agreed with the Players' irreparable harm argument, adopting most of their arguments in her opinion. She cited past decisions of the Court for the proposition that the Players' injuries are not monetarily compensable due to the nature of their short careers, warranting the issuance of a preliminary injunction.
Now we await Nelson’s decision that will bring some clarity to the chaos of the NFL.
ICONThe first round goes to the Players.
What happens if Judge Nelson denies the Owners’ request to keep the lockout in place?
It would set the stage for the NFL teams to open for business, beyond the tepid opening they had on Tuesday.
There is a chance that Nelson grants a temporary stay, perhaps only a few days, allowing the NFL to collect itself before opening its doors for business. We should know by today whether Judge Nelson grants the NFL's stay request.
Assuming she does not grant the delay of the lockout, the NFL already has papers to appeal this ruling to the Eighth Circuit. Their determination should come in a matter of days.
Assuming that neither Judge Nelson nor the Eighth Circuit grants a stay, the new League Year would commence shortly, meaning that player trades and free agency are coming in the near future. Even in the most advanced timing, however, I would think it highly unlikely to have football operations during the Draft.
What happens if Judge Nelson – or the Eight Circuit – grants the Owners’ request to delay the lockout while the appeal is pending?
The lockout continues during the appeal process to the Eight Circuit, which could take four to six weeks. As has been the case, there will be no signings, trades, contact with players, etc. NFL operations would continue to be shut down pending appeal of the ruling to the Eighth Circuit.
If the NFL opens for business, which rules will they implement?
The NFL will most likely implement the 2010 work rules — meaning no Salary Cap, six years required to free agency, 30 % rule, etc. — since the NFLPA — then a union — had previously said that they would not mind operating under that system.
However, prudence is vital here. The Players in their underlying Brady v. NFL case — via an amended complaint — will definitely challenge any rules implemented unilaterally by the NFL.
Will the NFL appeal Judge Nelson's grant of the Players' preliminary injunction (beyond the stay)?
They already have. While the timing is unknown, a three-member panel of the Eighth Circuit should hear this matter by the end of May, at the latest.
What do you think will happen on appeal?
The Eighth Circuit will review Judge Nelson's injunction ruling under a highly deferential "abuse of discretion" standard. This means there is a low likelihood that Judge Nelson is reversed, since her 89-page emphatic opinion seems to be written directly to the Eighth Circuit and explicitly outlines every step of her reasoning.
However, there is some good news for the NFL at the appellate level. The jurisdictional arguments — that the Court must defer to the NLRB's statutory jurisdiction and that issuing a preliminary injunction here violates the Norris-LaGuardia Act — will be heard "de novo," or as if for the first time. These arguments were not as clear-cut as the preliminary injunction issue, and we can expect the NFL to hone in on these on appeal.
The Eighth Circuit is known as a more conservative, more business-friendly court. They might be more accommodating to the NFL than Judge Nelson was.
Assuming the NFL is unsuccessful on appeal, what happens next?
The NFL could appeal to the Supreme Court, although it is unlikely that they would grant certiorari (take the case). Instead, what we would see is a situation remarkably similar to the Reggie White litigation in 1989.
NFL football would exist, albeit with no union and no collective bargaining agreement. Football could be played for years, while the two parties simultaneously fight it out in antitrust court. Eventually, we can expect a settlement and/or new collective bargaining agreement, which will govern the next 5-6 years.
If the underlying Brady v. NFL case goes forward, how strong are the NFL's chances?
In her court opinion, Judge Nelson specifically stated that she was refraining from ruling on the merits. However, the tone was not especially encouraging for the NFL. As the jurist who will preside over the Brady antitrust litigation, her judgment matters immensely. And reading between the lines, it is clear that she believes that the non-statutory labor exemption does not protect the NFL from antitrust scrutiny.
Additionally, during the discovery process, the Players will be able to obtain what they have desired for years — the NFL's complete financial records. This aspect alone could influence the NFL to engage in serious settlement discussions before antitrust proceedings begin.
So, in the end, this was an important victory for the Players?
In the big picture of jockeying for position to negotiate a new CBA, the players got some leverage yesterday. The Players have continued to build leverage. The NFL faces a tough obstacle on appeal.
And their least favorite jurist, David Doty, will rule on the "lockout insurance" case on May 12, 2011.
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