Commentary

NFL lockout ruling raises timing issues

Originally Published: July 9, 2011
By Lester Munson | ESPN.com

As NFL owners and players appear to be closing in on a new collective bargaining agreement, the U.S. Court of Appeals for the 8th Circuit (St. Louis) on Friday issued a 2-1 opinion that eliminates a lower court injunction that temporarily stopped the owners' lockout. The decision, its rationale, the dissent and the timing raise questions about the current bargaining process and the 2011 season. Here are some of the questions and their answers:

Why would these judges issue their decision now, when it appears that the owners and the players are in the final stages of a new agreement?

There isn't an obvious answer to that. The timing of this decision is highly questionable. All reports indicate that both sides are negotiating in good faith and approaching an agreement that would resolve all issues and establish a working partnership that can endure for several NFL seasons. It appeared, until Friday, that the judges who were involved in owner-player litigation were holding off on their decisions as the negotiations continued. Why render a decision that can change the relative strength of the bargaining positions when it appears that a settlement is on the horizon? U.S. District Judge David Doty in Minneapolis, who has presided over NFL labor disputes for more than 20 years and is easily the nation's most knowledgeable jurist on these issues, has delayed his decision on the players' lawsuit attacking TV network payments to the owners during the lockout. Doty's timing, in contrast to the judges of the higher court, allows the players and the owners to find common ground without any sudden and dramatic changes in the topography.

How did the two judges of the higher court reach the conclusion that the owners could continue with their lockout?

In ironic and surprising interpretations of a federal law known as the Norris-LaGuardia Act and a decision of the U.S. Supreme Court in another NFL case, the majority judges (Steven M. Colloton and Duane Benton) concluded that American law prohibits the use of injunctions against lockouts in labor disputes. The irony arises from the fact that the law was enacted to protect labor unions from injunctions issued by anti-labor judges in the early days of the labor movement. As Judge Kermit Edward Bye explains in his dissent, the Norris-LaGuardia Act was "not intended for the protection of employers [the owners]" and was intended only for the protection of employees (the players). The surprise is that the judges viewed the owners-players dispute as a labor dispute even though it no longer involves a labor union. (The NFLPA decertified as soon as the lockout began.) To reach their conclusion, the judges analyzed Brown v. NFL, a 1996 decision involving developmental squad players, a rare loss for NFL players in the long history of antitrust litigation between players and owners. Even though the Brown decision stated that a decertification of a union could open the owners to antitrust claims (including an injunction stopping a lockout), the judges on Friday ruled that they would ignore the decertification and treat the dispute as a labor dispute and not an antitrust dispute.

What effect will the decision have on negotiations?

If the owners and the players are close to an agreement, the effect of the decision will be minimal. But if the negotiations break down, the decision could have a major effect. In their opinion, the majority judges ruled that free agents and rookies may be entitled to an injunction that would end the lockout for them and allow them to begin to negotiate for contracts. The judges' ruling included an admonition that the free agents and rookies must present witnesses and other evidence to U.S. District Judge Susan Richard Nelson in St. Paul, Minn., but that, after an evidentiary hearing, they would be entitled to an order stopping the lockout. If lawyers and agents representing rookies and free agents filed a lawsuit now, they would complicate the labor negotiations with a new layer of issues and possibilities. Veteran players under contract would be locked out, and free agents and rookies would be permitted to negotiate contracts, attend preseason camps and prepare for the 2011 season.

Can the players appeal this loss?

Yes. Two avenues of appeal are open to the players. The first is to ask for reconsideration in what is known as an "en banc" hearing before the 11 active judges of the Court of Appeals for the 8th Circuit. With a 2-1 decision and a strong dissent, the chances for an en banc reconsideration are better than they would be with a 3-0 decision. The players then would face the challenge of convincing five of the remaining eight judges who did not participate in Friday's decision that it's an antitrust dispute and not a labor dispute. The second alternative is a petition to the U.S. Supreme Court asking it to intervene in the dispute. The high court could easily refuse to hear the players' appeal, and that would be the end of the litigation. But if the Supreme Court did agree to consider the case, the players would be in a court that ruled 9-0 against the owners in the last NFL case it considered: American Needle v. NFL.

Is this the end of the players' antitrust attack on the owners?

No. The players can return to federal court in St. Paul and pursue their claims against the owners. They would be asking for financial records of the league's 32 teams, and they would ask a jury to award them triple-damages money for the losses they claim to have resulted from the lockout and restrictions on player movement (franchise and transition tags, draft, salary caps). It would be an endless process extending into 2012 and beyond.

What are the chances for a 2011 season after this decision?

The best chance for a 2011 season is the negotiation now under way. If the owners and the players can continue with the progress they appear to be making, there will be a season. But if the negotiations fail, there is the prospect of a continuing lockout, a lawsuit by free agents and rookies, an appeal of Friday's decision, a decision in the TV networks case and continuing uncertainty.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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