by Andrew Brandt
April 29, 02011
The most unique and unprecedented offseason in NFL history continues its roller coaster ride. In the midst of the second round of the NFL draft, a 3-member panel of the Eighth Circuit Court of Appeals (the Court) granted the NFL's motion to temporarily stay (delay) Judge Nelson's preliminary lockout, thus re-instituting the lockout for the near future.
Thus, there will continue to be no signings, no trades, no workouts and no contact between players and their teams. Although the NFL hasn't formally announced that team facilities will now close again to players, I highly doubt they would keep them open to players -- that would make the court's recent order irrelevant (and a waste of judicial time and resources).
Moreover, in the immediate future -- tomorrow -- there will be no signings of undrafted free agents, an annual ritual that uncovers gems for NFL teams among the approximately 400 players that would normally be signed in the hours after the Draft.
Two members of the panel — Justices Colloton and Benton — found in favor of the NFL and granted the temporary stay. On the other hand, Justice Bye voiced an emphatic dissent.
As a result of this decision, the NFL is shut down again, for about a week, while the Court evaluates whether to grant a longer stay (about 6-8 weeks), at which time the Court will review Judge Nelson's grant of a preliminary injunction.
According to the Court, 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."
Men of few words, the foregoing sentence represents the extent of the majority's reasoning.
Justice Bye's views diverged significantly from his two counterparts. According to Judge Bye's interpretation, temporary stays are granted only for "true emergencies" — typically death penalty and immigration cases where significant liberty interests are at stake.
Also, Judge Bye explains that the NFL, in its brief, had claimed post-injunction operations were "a complex process that requires time to coordinate" — yet he could not reconcile this statement with the fact that within one day, the NFL had planned post-injunction operations allowing players into team facilities.
The more important decision
Next week, the same 3-member panel of the Court will decide whether or not to grant the NFL a stay pending appeal of Judge Nelson's preliminary injunction order. In other words, the same judges will decide whether the lockout will stay in place through an appeals process that could take several weeks.
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 success on the merits
(2) irreparable harm without a stay
(3) the players are not substantially harmed by a stay
(4) public interest favors the stay
Although it is difficult to handicap the bigger stay decision based upon this ruling alone, a couple things to note. On the one hand, it will be the same judges, and two of the three have showed some initial leaning to the NFL. However, the dissent stands out. If Judge Bye is not even willing to grant a temporary stay, it is also likely that he is not willing to grant a stay that has the potential to last two months.
Justices Colloton and Benton thus will play the deciding roles in next week's stay decision.
Pardon the pun, but stay tuned.
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