by Andrew Brandt
May 18, 02011
For NFL fans, the ruling from the Eighth Circuit to keep the lockout in place may actually bode well for football being back in business sometime this summer. Beyond the immediate emotion and disappointment that fans have about the NFL still being closed for business, the ruling on Monday night – followed by a similar result on appeal – may be the most direct path to a Collective Bargaining Agreement (CBA) and a full season in 2011.
The ruling and the appeal
Two of the three appellate court judges from the Eighth Circuit agreed with the NFL that this battle between the Players and the Owners – at least in regard to the lockout – is beyond the jurisdiction of Judge Nelson's court.
The ruling endorsed the NFL’s broad interpretation of the Norris-LaGuardia Act -- originally meant to protect employees from injunctions --to protect the NFL (an employer) from an injunction (lifting the lockout) arising from the ongoing labor dispute.
These same three judges will be deciding the appeal. That does not bode well for the Players, as it is hard to see a different result.
Thus, it is likely that the lockout will continue with a favorable ruling to the Owners from the June 3d hearing, a ruling that will come in late June or early July.
ICONVrabel and NFLPA leadership will have to examine their options.
What it means
A consistent ruling on appeal means the following: the NFL lockout would continue indefinitely, a look into a broad horizon with no markers on the scope for the Players to target.
I was one of few forecasting – wrongly – an agreement between the NFL and NFLPA in early March. I did so knowing once past that date, there were no flashpoints on the calendar to spur action between the two sides. That is where we sit today.
Should the Players lose on appeal – which I think will happen – NFLPA leadership needs to look closely at its options and perhaps become more focused on negotiating a new CBA.
There is a deal to be made here, and hopefully made by mid-to-late July, setting up the start of football. Of course, we would have a truncated free agency period and things would be harried in preparing to play, but a full season would ensue and by November, this labor mess will be ancient history.
The bigger case
To be clear, the rulings from the Eighth Circuit on the stay and the appeal only involve the injunction of the lockout. They do not address the underlying antitrust case of Brady v. NFL, where the Players have challenged the Draft, the Cap, free agency restraints, etc.
If and when the Players were to litigate those antitrust restraints, they would have a good chance of winning, as the players would be treated favorably by antitrust court with the NFL not having the benefit of a CBA to protect them. And winning in antitrust court means treble (triple) damages, resulting in potentially hundreds of millions of dollars!
Timing always the issue
The problem for the Players is timing. Although we have seen expedited hearings so far in this case, the underlying antitrust litigation of Brady v. NFL is not even a thought on the calendar at this point and won’t see a courtroom for many months, if not years.
Thus, while in theory the Players have the stronger argument in Brady v. NFL, in reality they can’t wait. Time has been and will continue to be on the Owners' side.
The Doty factor
The Players do expect some good news from the television lockout ruling coming soon from Judge David Doty. They may receive an award of potentially a couple hundred million dollars as damages from the Owners for their brazen contract negotiations with the networks.
However, the Owners to the Eighth Circuit will appeal a negative result from Judge Doty once again, with an uncertain time schedule ahead.
Mediation – phase III -- continued under Judge Nelson’s watch in Minnesota with Judge Boylan. There were reports of offers made and even a lunch that both Commissioner Goodell and DeMaurice Smith attended. And there is even a school of thought that the Eighth Circuit held the ruling on the stay to coincide with the mediation as to encourage talks.
I’m not sure, however, that any real progress was made there. The Monday night Eighth Circuit ruling is too fresh, especially the bold opinion on the jurisdiction of the case. Mediation will be continued on June 7th after the appeal hearing of June 3rd.
Perhaps this is a moment in time for the Owners and Players. We are two weeks away from the appeal hearing. We are soon to hear from the Players’ MVP jurist Judge Doty on the television contract damages. The issues have been hashed out for months, with the March 11th offer from the owners still relatively fresh in everyone’s minds.
As I have said for two years, this labor battle has never been about court victories or losses. It has never been about getting to the point where Tom Brady is sworn in to take the stand and cross-examined by the NFL attorneys. It has been and is all about each side trying to exert some leverage towards making a deal closer to their terms. It has been a negotiation characterized by mistrust and dislike. But it is getting to that time.
Perhaps the parties seize this chance to make a deal. We can only hope.
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