by Andrew Brandt
April 20, 02011
First a note about the NFL releasing its schedule. Yes, there is a sense of normalcy with important games scheduled for opening weekend, a London game scheduled and an impressive slate of night games. The NFL is keeping to its party line that it expects the season to open on time. And so do I.
The better question is whether the season opens with a full training camp and/or a reasonable period to sign and trade players. And as to the London game between the Bears and Bucs, the NFL may have given us a hint of their internal deadline for reaching a new CBA by saying that the game will be played in Tampa, not London, in the event the labor dispute is not resolved by August 1. That may be a key date.
While the NFL schedule has now been announced and we can fantasize about actual football, let's return to reality and the schedule for Courtroom football. We expect to have a decision soon from Judge Nelson on whether she will grant the injunction to the Players (lift the lockout). As we prepare for her decision -- she said she would rule in "a couple of weeks", today marks two weeks -- here are some questions and my attempts at answers for what is ahead.
ICONMediation is ongoing but both sides await ruling from Judge Nelson.
Will this round of mediation stall Judge Nelson from making a ruling?
It could, but only if reports back to her signal solid progress. And based on the history between the two sides, it is hard to see progress in negotiations with Nelson’s decision pending. I do believe both sides are taking things seriously and following Judge Boylan’s instructions diligently. I also believe that Boylan is capable and has been able to accomplish things the previous mediator, George Cohen, could not. Having said that, I don’t anticipate meaningful concessions on either side to give reason for Nelson to hold her ruling much past this week. I think this phase of mediation could end as early as today.
Update: As predicted, mediation did adjourn Wednesday, scheduled to resume on May 16th. With a ruling from Nelson and a hearing on the damages in the television lockout case on May 12th, perhaps the next round of mediation will be more purposeful and effective.
Do you think Judge Nelson will lift the lockout?
Indications are that she will. Her questioning of NFL attorney David Boies was much more forceful and strident than her questioning of the Players’ attorney James Quinn. The Players do seem to be playing on their home field with this District Court in Minnesota, the home of their MVP jurist David Doty.
When Nelson asked the following question to the NFL, and I am paraphrasing, “So if I don’t grant this injunction, this could go on forever?” I think she showed her hand.
What about the report of a group of players seeking different representation beyond the Players' counsel in Brady v. NFL?
This report from Dan Kaplan of the Sports Business Journal is troubling for the Players' side. It shows a couple of things:
(1) Roger Goodell's letter to all players a few weeks ago may be having an effect. Goodell outlined the deal that the NFLPA walked away from on March 11th to pursue decertification and litigation. He knew that he would have an adverse reaction from the union leadership but wanted to seek out players who might be questioning them. It was a classic "divide and conquer" strategy and may be working.
(2) There is an inherent problem with sports unions in trying to have everyone on the same page. Players are in widely disparate income groups and have different priorities on what is important. While free agency and the lack of restrictions on top earning capacity may be important to some -- as with some of the name plaintiffs in Brady v. NFL -- there may be hundreds of other players much more concerned with issues of health and safety benefits, minimum salaries, postcareer coverage, pensions and more.
This is something to watch as we look for chinks in the armor of Player solidarity. One other note, though: don't discount the possibility of cracks in the Owners' ranks as well.
The losing side will certainly appeal Judge Nelson’s decision. Where will those proceedings take place?
A three-member panel from the 8th Circuit Court of Appeals will hear the appeal. The 8th Circuit justices go on "Tour" through different cities in the Midwest. Depending on when the appeal is heard will dictate where it is located (St. Paul, St. Louis, Kansas City, or Omaha).
What do you think will happen on appeal?
The 8th Circuit is known as a pro-business, conservative court, which bodes well for the NFL and I would give them a slight edge there. However, deference is often given to the lower court (Judge Nelson) unless the appeals court sees errors in application of the law.
The NFL hired David Boies primarily for his prowess on appeal. He pushed some legal arguments forcefully with Nelson –the NLRB issue and Norris-LaGuardia Act – to set up these arguments for appeal. The appeal will be his show.
If Judge Nelson rules in favor of the players and declares the lockout illegal, what happens next?
My sense is that Judge Nelson rules for the players yet keeps the lockout intact while the NFL appeals. To do otherwise would create chaos and confusion. In the event, however, Nelson does open the NFL for business -- or if and when the 8th Circuit does so after appeal -- Nelson and/or the 8th Circuit would likely defer to the NFL in what work rules to implement.
The NFL would likely implement the most recent rules from the 2010 season. The NFLPA is on record saying they would have continued to operate under that system. That will allow the NFL to impose these rules and help them in the future antitrust action. The 2010 system rules, with six years required for free agency instead of four and no minimum Cap spending, could severely limit spending on players, fostering more discontent among players, which is obviously part of the NFL’s strategy.
What are your best estimates for a timeline for a decision on the appeal?
Depending on when Nelson rules, an appeal will be scheduled a couple of weeks later, with a decision on appeal a couple weeks following that. Timing typically depends on the judges' schedules, but there's some reason for acceleration here.
What else is a key date on the calendar?
May 12. Judge Doty will come back into view, as both sides will appear before him on the damage phase of television lockout funding case. The Players are hoping for a leverage shift from this decision, a decision that could perhaps reward the Players with a huge damage award. At issue are damages from the NFL for securing television contracts that provided funding during the lockout – albeit with later setoffs – instead of maximizing total revenue in the deals.
Doty, in ruling for the NFLPA earlier in this case, provided a big leverage shift in the collective bargaining negotiations. Now he will be asked to do the same for the Players in the litigation settlement negotiations.
Following a ruling by the 8th Circuit, will either side try to appeal to the United States Supreme Court? What are the chances for Brady v. NFL ending up there?
The Supreme Court would most likely reject certiorari (decline to take the case). Having dealt with American Needle v. NFL within the past year, I would think they focus their energy elsewhere. The only reason it would reach the Supreme Court is if the 8th Circuit does something unprecedented or that conflicts with another U.S. Circuit Court of Appeals.
Unfortunately, although the schedule was announced for football on the field, the only football ahead for the foreseeable future is Courtroom football.
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