by Andrew Brandt
May 04, 02011
With the Eighth Circuit (the Court) set to rule on whether to grant the NFL a permanent stay in the next day or two — whether to keep the lockout intact until at least early June — let’s press pause and reset where we are in Courtroom football.
Opened, then abruptly closed
It has been a capricious week in NFL labor. On April 25th, Judge Nelson granted the Players' a preliminary injunction, ending the lockout. Two nights later, Judge Nelson denied the NFL's expedited motion for stay (i.e., delay) pending appeal to the Eighth Circuit Court of Appeals. Then on April 29th, during the second night of the NFL draft, a three-member panel of the Eighth Circuit granted the NFL a temporary stay, putting the lockout back in place until it can decide upon a permanent stay. Their decision is expected shortly. Now we’re up to date.
Two against one — grant of temporary stay
Justices Colloton and Benton — two members of the Eighth Circuit panel — found in favor of the NFL and granted the temporary stay. Conversely, Justice Bye was the lone dissent.
The Court made clear that the purpose of the temporary stay "is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal."
In dissent, Justice Bye argued that a temporary stay should be granted only in extraordinary circumstances — "true emergencies" — such as death penalty and deportation cases. Bye was extremely critical of the NFL for claiming the need for extra time to implement rules while it had planned post-injunction operations in one day.
Permanent stay — the bigger decision
At any moment, the same three-member panel of the Eighth Circuit will announce its decision regarding a permanent stay pending appeal. The issuance/denial of a permanent stay will swing momentary leverage to the party that prevails this week.
In order to achieve a stay pending appeal of Judge Nelson's grant of preliminary injunction, the NFL must demonstrate the following:
(1) A strong showing of likely success on the merits
(2) Irreparable harm without a stay
(3) Players are not substantially harmed by a stay
(4) Public interest favors the stay
On Monday the NFL filed its reply brief and reasserted its main jurisdictional arguments: (A) the District Court of Minnesota does not have jurisdiction to issue an injunction due to the Norris-LaGuardia Act; (B) the District Court should not have decided the case before the NLRB issued its views on the NFL's unfair labor practice charge; and (C) the District Court should not have ruled as to whether the nonstatutory labor exemption continues to apply after decertification.
Thus, the NFL is banging the same drum it has since the moment this litigation began on March 11th: that the former union, the NFLPA, is still a present union and we should be at a bargaining table rather than in court. The NFL points to evidence from comments by Mike Vrabel about players having a “seat at the table” and DeMaurice Smith’s leadership as further evidence that the “trade association” is still acting as a union.
The NFL also argues that it — not the Players — suffers irreparable harm by being prohibited of its labor law right to lockout. Absent a stay, its teams would have to "irreversibly scramble the eggs of player-club transactions," in the event that the preliminary injunction is reversed in June. Finally, the NFL asserts that many players holdout of training camp, and point to specific language of Wes Welker and Ray Lewis that they are enjoying time off.
ICONThe appeal process is on an expedited schedule.
The Eighth Circuit announced an expedited appeals schedule for this case on Tuesday. The NFL's brief is due May 9, the Players' Response is due May 20, and the NFL's reply is due May 26. An oral argument will take place on June 3 in St. Louis.
Judge Nelson in her ruling expected the appeals process to go into the NFL season. Now it is set for June 3rd, ahead of anyone’s expectation.
The fact that the hearing is set for early June bodes well for the Owners. The Players argued — and Judge Nelson was swayed — by the irreparable harm due to the threat of a lost season. The NFL asserts that through an expedited appeal, the merits of the injunction can be addressed well before the season begins. The Eighth Circuit's schedule at least confirms the potential for a season.
The fact that Justice Bye was so vehement in his denial of a temporary stay means that he may not be willing to grant a permanent stay. Thus, Justices Colloton and Benton may hold the fate of the NFL business — at least for the next month — in their hands.
However, with the expedited time schedule, described above, there may be an indication that everything can be worked out — one way or another — in a month or so with no harm to either side and plenty of time for NFL business if the appeal goes the way of the Players.
The speed of the scheduling makes it easier to stay the lockout. The Court may consider this kind of delay in NFL business to be insignificant.
The key factor at play is whether the NFL has demonstrated a likelihood of success on the merits. The tough jurisdictional questions — whether this matter is for the Court or a labor dispute — may prove to be the pivotal feature of this ruling.
If I had to predict, I would say the stay of the lockout continues through appeal. The bad news for fans is that the lockout continues. The good news is that the expedited appeals process means things will resolve — at least as far as the lockout goes — relatively quickly, with a ruling from the Eighth Circuit by probably mid to late June.
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