First important date of NFL offseason calendar Andrew Brandt
The NFL takes center stage today in Minneapolis, exactly two months from when it took center stage in Dallas. No, not in the collapsed Metrodome but rather in the courtroom of Judge Susan Nelson, who becomes the key player in the NFL. She will hear arguments on whether to grant the plaintiffs in Brady v. NFL (the Players) a preliminary injunction (injunction) that would potentially end the lockout and resume business in the NFL, albeit in the midst of litigation.
The Briefs have been filed, with my summaries of each here and here. The lawyers will make their twenty-minute arguments followed by rebuttal; the media is standing outside the courthouse (I’ll be sitting in the ESPN studios giving my take off of Ed Werder's reporting). We’re ready to go.
Judge Nelson has different options in front of her and has significant judicial discretion. Here are the possibilities. She could:
1. Deny the Injunction (Keep the lockout in place)
This would be put the NFL in the driver’s seat for negotiation/settlement discussions towards resolving this two-year old dispute.
Simply, the lockout would continue: there will be no signings, no trades, no player workouts or rehabilitation at the facility, no contact between teams and players or agents. Nothing.
The lockout is all about leverage. The NFL owners want to make a deal on their terms. With the slow pace of litigation, this result will put the Players on the defensive in settlement talks. The NFL will try to wait the Players out until the solidarity of March ebbs in July.
2. Grant the Injunction (Lift the lockout)
This is the result football fans want, although it is not as ideal as it sounds. Yes, football might be back in business and fans may celebrate. However, hold the phone…
The NFL will appeal this result to the Eighth Circuit Court of Appeals. The question then becomes whether the NFL will resume business during appeal or whether the injunction is stayed (held), meaning more of the lockout.
Judge Nelson has great discretion here. She can grant the injunction and order it be enforced immediately – meaning the NFL must lift the lockout – regardless of appeal. Or she could stay the injunction (maintain the lockout) while the NFL appeals. It is up to her, but my sense is the lockout continues upon appeal.
ICONOral arguments will be made with time for rebuttal.
Timing
There is a remote chance that Judge Nelson could “rule from the bench” and announce her decision today after oral arguments, but that is unlikely. She will likely issue her decision in 7-10 days.
Upon appeal, the Eighth Circuit would set a hearing date probably within 2-4 weeks of the appeal. From that point, the Eighth Circuit would probably take another week or two to issue their opinion.
Thus, there will likely be, at the least, a few weeks more of courtroom football.
The other options
While the two options above are the clearest in the “winner” and “loser” categories, there are two other options that could occur.
3. Back to the NLRB
Parallel to this entire courtroom drama has been the track the NFL pursuing an unfair labor practice charge in front of the National Labor Relations Board (NLRB). The Owners refuse to accept that the NFL has decertified, referring to their dissolution as a “fake suicide”.
The NFL filed a complaint with the NLRB on February 14, amended in March, arguing that the former union is still a present union. They have asked Judge Nelson to defer so that the NLRB first determines whether there is still a union. And if there is a still a union, the Players cannot file an antitrust claim.
Judge Nelson could refuse to rule here and defer to the NLRB before taking the case. That result would be extremely beneficial for Owners as the result would be the clock ticking while the Players are locked out.
And the NLRB’s time frame is turtle-like. It could take months or, yes, years.
My sense is this result is unlikely, as Judge Nelson will want to rule on this subject matter, as has this Court several times before.
4. Go talk some more
Another avenue that Judge Nelson could take is order the parties to talk about their differences more before appearing in front of her. She could mandate that they engage in settlement talks or she could order them back to the mediation table from which they left on March 11th. That mediation could be back with George Cohen, through her supervision or with another mediator.
Although this result would continue to delay the process, it may make the most sense. Both sides have been quick to say how hard they have tried to reach a deal; this result would put them back in a room to prove just that.
What will happen?
The Briefs were both compelling and well written. Judge Nelson, unlike the renowned Judge Doty, appears to have no bias and leaning. Thus, this is as hard to handicap as any football game of the season.
If I had to advise Judge Nelson (no, she hasn’t asked), I would suggest the final option. The parties have not talked since March 11th, some 26 days. Why not push them to talk some more before coming in front of her again?
Issues to overcome for each side
The Players may have a tough time showing “irreparable harm”- the standard of proof to grant the injunction -- if the lockout is not lifted. Yes, they need every opportunity to impress coaches in their short careers and that there are potentially 500 free agents that need to find employment.
However, it is five months from the start of the season. And as to the Players’ short careers, there is an argument that the lockout actually preserves the players, not subject to injury risk and wear and tear while being locked out. Further, the Players have asked for monetary damages in this lawsuit, lessening the need for other forms of relief (i.e, the injunction).
The Owners, however, are unfortunately dealing with the same court that has dealt them blows in the past. And although Judge Doty is not handling the case, he may be lurking over the shoulder of the relatively new Judge Nelson. We can't discount the Doty factor.
Let the game begin. The most important person in the NFL – Judge Susan Nelson – has the ball.
Follow me on Twitter at adbrandt.
You are correct that it is impossible to make any kind of educated guess what the judge will do. The case is very unusual, and she has little in the way of a track record.
From a strictly legal perspective, the most prudent course would be to defer to the NLRB. The Anti-Injunction Act would prevent issuance of an injunction in the context of a labor-management dispute, which turns on whether or not the union has decertified or whether it is viewed as a sham. That is a question that turns on labor policy more than a straight factual or legal determination, so it makes sense for the NLRB to have first crack at it.
This judge, or Judge Doty for that matter, has to be at least a little concerned by the union's disappearing and reappearing act. Judges generally do not like to be played, and the union's strategy reeks of that.
It is also unclear exactly why the players are entitled to an injunction. The court would be ruling in effect that a private business, the NFL, had a legal obligation to conduct business when the owners did not want to. That seems to me to be a very bold proposition.
Will the nflpa hearing be broadcast on tv?
Has anyone ever considered filing restraining orders vs. front office employees? If the players can't play, why should anything else operate on par? In essence that is what they've done to players, what's good for the goose is good for the compensated employee, etc.
"The court would be ruling in effect that a private business, the NFL, had a legal obligation to conduct business when the owners did not want to. That seems to me to be a very bold proposition." The NFL is not one singular company. Each team is a separate company. So, in effect it would be like RCN, Comcast, DirectTV and 20 other cable companies all getting together and saying 'none of us are going to employ you, unless you all agree to the salary structure we implement.'
"Has anyone ever considered filing restraining orders vs. front office employees? If the players can't play, why should anything else operate on par? In essence that is what they've done to players, what's good for the goose is good for the compensated employee, etc." I don't think such a lawsuit is allowed. I know that this isn't a strike, but there is definitely a difference between management and employees. If a union goes on strike, the management of the company continues to work. In many cases, and for many companies, management is completely separate from the employees.
Well Meateater. It doesn't sound like you read all of the articles. if you remember correctly the NFL basically begged the Players to re-unionize so they could collectively bargain with them. So the "reappearing" act was done as a direct request from the NFL. So you are right in saying Judges don't like to be played with. And wow the NFL is sure doing a lot of playing on the Judicial dime. And everyone can read in between the lines and knows the NFL wants the matter to go to the NRLB for one and only one reason. TIME. They know the players are much less likely to outlast them in a stand off. If the NRLB hears this case at there usual pace it could be years. That would break the players back. And as we have already seen from the TV contract negotiations that already got jammed back down the owners throats, the Owners are very willing to play hard ball. So again bottom line. If the ruling is for the NRLB to have jurisdiction then there will be no football this year. Unless Congress steps in and threatens the "Anti-Trust exemption". And no one wants Congress involved. And you have read nothing about the "LaGuardia" act. That decision was made for only one reason. To prevent non-unionized business from locking out their employees. So the law the NFL is siting actually is more applicable to the Players. And as I have read, nobody takes that ruling with any seriousness now. So it seems to me that something indeed does stink, and it's the owner's strategy. I stand by what i said. When all is said and done the owner's will be giving more t the players than Goodell led them to believe. Then the axe will fall and we will see if he lives up to the NFL's Conduct policy.
@pappymojo, The NFL is not a normal group of independent businesses. The courts have recognized that this type of partnership or joint venture can be considered a single entity for some purposes but not others. Their argument would be that they don't want to take the risk of huge antitrust liability, in light of the union's strategy of decertifying and filing lawsuits. I think a judge would be wary of ordering a litigant to take action that might later expose them to liability.
@Rich, I agree with you that Godell is a terrible commissioner, an arrogant power-drunk dimwit. I have to think the more thoughtful owners are regretting getting saddled with him, but of course they can't fire him in the middle of this. As for the timing issue, yes of course you're right but how relevant will it be? I can't say. Litigation is a terribly inefficient process, and judges are pretty isolated from the real world. Legally, if the proper course is to defer to the NLRB, the fact that one party will be hurt by the delay is irrelevant. It seems to me that is the proper decision here, even if the owners' reason for requesting it is suspect. It also gets the judge off the hook for a difficult decision.
Murder,
These are private businesses with the exception of the Packers. The owners of the businesses operate as they please inside the law but outside the confines of football operations and NFL regulations. Crazy suggestion, can't be done. We'll just send them over to your house.
Just because you don't like a guy and he drives a position that is opposite than yours, does not make him ineffective. The league has grown to greater prosperity since 2006 and his election plus he has had the nads to enforce rules and conduct.
With Judge Nelson "encouraging" the two sides to resume talks during her statements today, could she at some point set forth an order for the the NFL and the NFLPA to resume talks while she figures out the legality of all of the actions by both sides?
It would seem to me that the wise thing to do would be for Judge Nelson to order the decertification null for a period of 2 or 3 weeks and during that time put the two sides back in the room with a mediator. After that time period if nothing is determined, she can issue one of two rulings:
1) She could rule the Decertification valid, and the lock out void and force the two parties to continue negotiations and for the NFL to operate as in 2010.
2) She could rule the decertification void, the Lockout legal and the players to wait to work unitl the negotiations result in a new CBA.
The NFLPA (No Fun Little Punk Assholes) is a fraud , thee guys are causing inflation for all of us, whenever they demand more money and the league asks for more from the networks, the networks raise ad rates , the advertisers raise the price of their goods and services which means more inflation for all of us!. These bastards gave EA a monopoly on football games , they broke the hearts of thousands of kids all over the world by limiting their football gaming to the EA crap only. Most kids can't even afford a NFL jersey because of these greedy crooks and when the last time you saw a cotton jersey, they expect you to pay money for the mesh plastic crap. I say to Judge Susan Nelson don't grant these pigs a injunction scold them for their greediness!
The NFLPA (No Fun Little Punk Assholes) is a fraud , thee guys are causing inflation for all of us, whenever they demand more money and the league asks for more from the networks, the networks raise ad rates , the advertisers raise the price of their goods and services which means more inflation for all of us!. These bastards gave EA a monopoly on football games , they broke the hearts of thousands of kids all over the world by limiting their football gaming to the EA crap only. Most kids can't even afford a NFL jersey because of these greedy crooks and when the last time you saw a cotton jersey, they expect you to pay money for the mesh plastic crap. I say to Judge Susan Nelson don't grant these pigs a injunction scold them for their greediness!
I don't see how the judge can rule that the players union no longer exists as the basis for a TRO. It is patently obvious that union de-certification is merely a ruse to force the issue here. Does anybody believe that the players are going to remain a trade association or whatever? This is a sham. De-certify to get your court decision and then bang we're a union the next day. I hope they get called on that. Part of owning something is being able to control it. Sure, the NFL is a unique situation, but the principal should hold that people who spent their lives succeeding enough to own a team should be able to chiefly benefit. The players are literally playing a game for a job and being very well paid to do it. Any one of us would trade places with them for this opportunity. No matter how hard I work, I'll never make an NFL roster. But if I am successful enough, I could buy one. Being a player is a lotto pick by comparison.
NFL 2011-2011 Season down to 43% from 62% Any questions ?
Ahem...the federal courthouse where the hearing took place is in ST. PAUL not Minneapolis. I hate when media outlets assume that when something happens in MN it must be in Minneapolis.
Now back to your regularly scheduled NFL lockout....
Blame the NFLPA for this lockout mess is ridiculous. The greedy owners who grumble about only making a few million bucks a year without consideration to the rising value of their franchises. The ink was barely dried from the last CBA deal in 2006 when they beginning planning to stage this lockout and try to make the players take a pay cut despite the huge profits being generated. No one pays for the seat-licenses, scoreboards, and taxpayer-subsidized stadiums to see Jerry Jones clapping on the sidelines! Its time to get off the players and put the blame on the greedy owners who have backed out of the deal and imposed this lockout, thereby hurting the fans! Judge Nelson should immediately smack the injunction on the owners and make it effective immediately without regard to any appeals by the owners.....then maybe the owners will bargain in good faith and stop the nonsense!
Ahem...the federal courthouse where the hearing took place is in ST. PAUL not Minneapolis. I hate when media outlets assume that when something happens in MN it must be in Minneapolis.
Now back to your regularly scheduled NFL lockout....
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Apr 06, 2011
08:06 AM
Love your perspective on all of theses shanannagins. Very informative and insightful.I believe that GODdels arrogance and pride have created the animsoity in this relationship. He has shown himself to be a megalomaniac of epic proportions. I as much as any despise the "thug" athlete and hope that when a crime is committed they get punished by the law. But GODdell and the NFL are not the law. That constitutes ,in a sense (my opinion), double jeopardy. I believe whan all is said in done in this fiasco the NFL will have to give more than Mr. Goodell lead the owners to believe, and i feel Mr. Goodell will be a sacrificial lamb on the altar of the NFL. One question. When will Judge Doty make a decision about the money that the owners set up as the "war chest" for a lock out? Thank you.