Courtroom football kicks off: who's winning
The regular season of courtroom football kicked off on Wednesday in the U.S. District Court in Minnesota (the Court). Judge Susan Nelson played the role of referee in a verbal gridiron match between the NFL and the Players. From the opening kickoff it was obvious that the Players — who have received favorable results in this forum since the Reggie White settlement in 1993 — clearly held the home field advantage.
Although not in the courtroom, I talked to those that were, including representatives of each side. It was also an interesting event that unfolded through Twitter (special kudos to Greg Bedard of the Boston Globe for his fine work).
Here are the important issues from Wednesday’s proceeding, the first of Brady v. NFL, and the frustrating aftermath of the “where to mediate”:
Nelson wants the case
Throughout the majority of the hearing, the NFL’s renowned litigator David Boies insisted that the Court is not the proper forum, at least not at this juncture. The NFL’s argument is twofold.
First, Boies argued that the Court should defer to the National Labor Relations Board (NLRB), since the NFL has an unfair labor practice claim against the NFLPA pending there. The NFL claims that the NFLPA engaged in “surface bargaining,” decertifying for tactical reasons and not in good faith, conduct prohibited by federal labor law. Boies also emphasized the fact that the NFLPA is financing this litigation.
ICONCourtroom football kicked off.
Judge Nelson pushed back against these arguments, persistently firing questions to Boies as if to say, “this is my case.” As mentioned here, the NLRB moves at a turtle-like pace, providing additional ammunition Judge Nelson to exercise her discretion that the Court is the proper forum, not the NLRB.
Boies also contended that the Norris-LaGuardia Act (the Act) prevents courts from issuing injunctions to block lockouts or strikes arising from labor disputes. Responding with incredulity, Judge Nelson emphasized that the Act’s original purpose was to protect union employees from striking, not to protect employers from locking out. She did not seem swayed by Boeis’s reverse argument on the Act.
On the jurisdictional argument, advantage Players.
Irreparable Harm: 800 Jobless Athletes
On this important issue, Players’ attorney Jim Quinn stressed the fact that 800 players are currently “unsigned.”
Quinn was quite strategic here. While true that 800 of the NFL’s 1900 players may have expiring contracts, only a fraction of that number will be free agents. Many of those players would be Exclusive Free Agents -- players in their first three years of their careers with no rights to negotiate with other teams. And, if the lockout is lifted and the 2010 rules imposed, many of those players would be 4th and 5th year players without true free agency rights as Restricted Free Agents.
Judge Nelson appeared receptive to this argument; Boies should have responded that the actual number of free agents might be truly less than 300 players. Boies did argue, as expected, that there is no irreparable harm with five months before opening the season.
Notably, the irreparable harm issue received scarce attention on Wednesday. This topic may earn its own hearing at a future date. That may be the best that the NFL can hope for at this point.
On the irreparable harm issue, a slight edge to the Players.
Mediation: Game of Semantics?
Although Judge Nelson closed the day by “urging” the parties to return to the bargaining table, the NFL and the Players disagree upon what label to give these talks.
The NFL wants to continue “collective bargaining” negotiations. The Players want to engage in “antitrust settlement” negotiations. The two sides remain entrenched in their respective positions; the nomenclature they use to describe future negotiations simply reflects their divergent perspectives on the situation.
More important than what to actually name these negotiations, the parties also disagree upon which mediator should oversee them. The NFL wants to return to Washington, D.C. and mediator George Cohen. The Players – saying “been there, done that” to Cohen, prefer Judge Susan Nelson or her designee to mediate.
Visions of the wrath of Doty
For the NFL, the U.S. District Court in Minnesota conjures up 18 years of painful memories of judicial oversight by one Judge David Doty. In the upcoming CBA, they hope to shake free from the clutches of the Court. This result is more achievable with Cohen as mediator.
For the Players, the Court has repeatedly rendered favorable decisions in their direction. Why ruin a good thing? The Players will demand that any settlement agreement is to be predicated upon the Court retaining jurisdiction over future CBA disputes — just as the 1993 White settlement. This result is more achievable at their home field in Minnesota.
There is a conference call scheduled for today with the parties and Judge Nelson to try to make some sense of where and with whom to mediate.
An Issue of First Impression
We are treading deep into truly uncharted territory here. Never has a multi-employer unit locked out a non-unionized set of employees. Judge Susan Nelson made a comment wondering aloud whether the NFL had operated legally in locking out a group of non-unionized employees. Of course, the vast majority of unions do not decertify; this is a truly unique situation and one that will also shape the course of action in the NBA.
Nelson also made comments as to the potential length of the lockout. She seemed to indicate that unless she intervened, the lockout could go on indefinitely, which is not a good result for “lots of people.”For now, we wait “a couple of weeks” for her ruling while the cat and mouse game of dueling letters about where to mediate and with whom continues.
Although reading the tealeaves on a preliminary hearing is speculative at best, after the first contest of courtroom football, the Players appear to have a slight lead. Like any football game, though, things can change in a hurry.
While the outcome is unpredictable, one thing is certain: courtroom football will continue for a while.
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