Commentary

Injunction: Beginning of lockout end

It isn't over, but Monday's ruling in Minnesota is a huge setback for the owners

Originally Published: April 26, 2011
By Lester Munson | ESPN.com

In an 89-page ruling issued Monday, a federal judge in St. Paul, Minn., ordered an end to the NFL lockout. The ruling from Judge Susan Richard Nelson raises significant legal questions about the lockout, the relationship between the owners and the players, and the 2011 season. Here are some of the questions and their answers:

How important is the ruling to end the lockout?

It is very important. Although it was not entirely unexpected, it is a triumph for the players and a major setback for the owners. The owners' decision to lock out the players came after nearly three years of planning. It was a major initiative. It was supposed to be a dramatic, game-changing maneuver that would allow the owners to recapture league money the owners gave to the players in an agreement in 2006. Now, instead of enjoying the leverage of a lockout that leaves the players facing major uncertainties, it is the owners who are facing uncertainties. Commissioner Roger Goodell and the owners will continue to talk about Monday's decision as a small step in a long process, and they will appeal it immediately. But the decision is a critical win for the players. An injunction is the most drastic order a court can make in a civil matter. It is always difficult to obtain an injunction. Obtaining this injunction against formidable opposition from the owners is a significant vindication for the players and their lawyers.

What happens next?

The owners have asked for a "stay of execution" on the injunction order. A stay is simply a delay in the time the injunction takes effect. A stay in this situation would keep the lockout in effect until the owners complete an appeal of the decision Nelson made Monday. The owners' attorneys will argue Nelson should issue a stay to allow them to preserve the status quo and to appeal her decision. A stay is frequently granted in similar situations. If Nelson does not grant the stay, the owners' attorneys will ask the U.S. Court of Appeals for the Eighth Circuit to issue a stay that would continue the lockout.

Will the owners succeed in obtaining a stay that would continue the lockout?

In similar situations, the owners typically would succeed in obtaining a stay and would be allowed to continue their lockout of the players. That might not happen in this case. A quick reading of Nelson's 89-page opinion shows that the judge is concerned about the "irreparable damage" the lockout would do to NFL players. She notes with approval the sworn statements from veteran NFLPA attorney Richard Berthelsen and numerous players that players' careers are short due to the "ever-present risk of career-ending injury" and that "the loss of an entire year in a short professional athletic career cannot be recaptured and cannot be compensated by damages."

The judge also suggests in her opinion that the lockout would do so much damage to so many players that it cannot be allowed to continue. She feels strongly about the damage the lockout will do and is unlikely to issue the stay that would put the lockout back into effect. When judges of the higher court consider the possibility of a stay, they will first consider Nelson's opinion, a detailed and impressive recitation of the situation. Even though a stay is normally the next step in this process, it is far from certain the owners will obtain the stay they seek. My guess -- and I should emphasize that it's only an educated guess -- is that their demand for a stay will fall on deaf ears and the lockout will have ended with Nelson's order Monday.

Is the ruling to end the lockout a surprise?

Yes, it is a bit of a surprise. It certainly is a surprise for the owners. Injunctions are granted only in the most compelling of circumstances. The players were required to show the irreparable harm already described. They were required to show that they would prevail in a full trial later on the issues raised by the lockout. And they were required to show that their plea was in the public interest. It was a tough case to make, but the players managed to do it.

What arguments did the owners make in support of their lockout?

The owners responded to the players' demand for an injunction ending the lockout with a highly technical argument based on the complicated jurisdictions of a federal court and the National Labor Relations Board. They claimed that the players' decertification of their union was a sham and that the whole thing was a labor dispute. Nelson did not buy any of it. In her opinion, she painstakingly goes through the owners' arguments and rejects them all. She was highly impressive in her reasoning and her language as she set aside each of the legal authorities that the owners offered. The owners treated the players' lawsuit as a labor issue instead of an antitrust issue. It is a strategy that has worked occasionally for the owners in earlier disputes but has failed more often than it has succeeded.

When the case reaches the U.S. Court of Appeals for the Eighth Circuit, will the owners benefit from its conservative, pro-business reputation?

It is possible that the owners' arguments will find a more receptive audience in the higher court. But "conservative" and "pro-business" might not work in this case in the same way they work in other cases. The players are individuals who are seeking to bargain as individuals in a free market. They decertified their union. Their ideal situation would be to bargain as individual players offering their services to several of the league's 32 teams. It would be the kind of open market that conservatives relish. In addition to their free-market ideas, the players have walked away from their union. Is a conservative court likely to accept the owners' idea that the players should be compelled to return to their union and act like a union? Conservatives do not often lean in the direction of establishing stronger unions. Although the higher court might be conservative and pro-business, that does not guarantee anything for the owners.

If there is no lockout, what rules govern the relationship between the players and the owners? What, for example, is the definition of free agency now?

These are good questions, and there are no answers at this point. If the owners fail in their attempts to obtain a stay of the order Nelson entered Monday, the owners might try to impose new rules. Or they might try to negotiate a new deal with the players. Or they might try to do both. It's likely that they will try to do both.

What are the most important effects of the court decision?

There are two important effects. The first is that the players have leveled the field for future negotiations. If the injunction remains in effect (and I believe it will remain in effect), the players have new and important leverage in their talks with owners. Instead of facing a loss of income and the loss of a season, they face the prospect of working under a new set of rules and, ultimately, a better deal with the owners.

The second important effect it that Goodell and the NFL lawyers have some explaining to do. They must find a way to explain to dubious owners how the lockout could go so wrong. In addition to the loss on the lockout injunction, the owners face serious problems in the players' lawsuit attacking the league's broadcast contracts that require networks to pay for games that are not played. Despite the years of planning, the lockout has not gone well.

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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