Commentary

Lockout momentum shifts to owners

Updated: May 17, 2011, 5:49 PM ET
By Lester Munson | ESPN.com

By a vote of 2-1, the U.S. Court of Appeals' 8th Circuit issued a ruling late Monday that will allow the NFL owners' lockout of players to continue for at least several more weeks. The ruling raises questions about the efficacy of the legal strategies of the players and the owners, and the chances that the league will play football in 2011. Here are some of the questions and their answers:

How important is this ruling?

It's obvious that it's a victory for the owners and a setback for the players. Although this technically is a temporary ruling that could be changed when the high court considers the entire injunction picture next month, the judges gave indications they are likely to make it more permanent. It comes at a time when the players had built momentum with a series of court victories. It clearly shifts the momentum to the owners, giving them breathing room and negotiating leverage. For the owners, the lockout is their ultimate leverage, and this decision returns to them the lockout they had lost in the earlier decision in a lower court. The two judges who voted for the owners and their lockout recognized its importance in their joint opinion. They noted that the owners' "ability to maintain the lockout is essential to [their] negotiating position." And the judges asserted that "there is no way to measure and [to] compensate the league for its loss of leverage … if the injunction is not stayed."

But the importance of the ruling is limited. It is based on a quick look at the legal issues. The same three judges will analyze the situation more deeply and will listen to arguments from the lawyers for both sides on June 3. Even though they appear to be leaning toward the same decision then, they will give the matter additional consideration. That ruling will be more important than this one and will be a major turning point for players and owners.

[+] EnlargeLawyers
Hannah Foslien/Getty ImagesAt least they're still talking. DeMaurice Smith and the players' attorneys headed into another court-ordered mediation session in Minneapolis on Tuesday.

What were these judges thinking? What are their reasons for allowing the lockout to continue?

The keys to the decision are the judges' interpretations of a law known as the Norris-LaGuardia Act and a decision made by the U.S. Supreme Court in 1938. The act, according to the judges, prohibits the issuance of any injunction "in a case growing out of a labor dispute." Is that what the law says? It is a close call. The two judges in the majority in the ruling on Monday are certain that their conclusion is correct. But it might not be as obvious as these judges claim. Two other judges who have analyzed the situation reached the opposite conclusion. The other two judges are U.S. District Court Judge Susan Richard Nelson, who initially issued the injunction with an 89-page explanation, and U.S. Court of Appeals Judge Kermit E. Bye, who wrote a powerfully worded dissent to the ruling of his two fellow 8th Circuit judges. The unofficial score on the Norris-LaGuardia Act is now 2-2, with more to come. The old case that the majority relied on is known as New Negro Alliance v. Sanitary Grocery Co. Although the two majority judges thought it was a solid legal precedent, that case did not involve a labor dispute and did not involve a lockout. It involved a civil rights dispute with a group of African-Americans demanding job opportunities in a group of grocery stores. It is a bit of a surprise that it would be the basis for a decision on a lockout.

What happens now?

This decision was made in a hurry. The briefs were filed very soon after Nelson allowed the injunction in Minneapolis, and they skimmed the surface of the issues. Both sides are now filing briefs that are more extensive and more detailed. The lawyers will more closely dissect the Norris-LaGuardia Act and the 1938 legal precedent. They will add more ideas and analysis to what they have already said, hoping to capture the attention of the three judges. We can expect both sides to discuss, for example, the historic case of John Mackey v. the NFL, one of the turning points in the long history of player-owner litigation. Mackey and the players' union were fighting what was known as the Rozelle Rule, an owner-imposed restraint on player movement that smothered free agency. Ed Garvey, the then-executive director of the NFLPA, recalls that judges in the 8th Circuit approved an injunction that terminated the Rozelle Rule. "If the injunction against the Rozelle Rule was approved, they should approve the injunction against the lockout," Garvey told ESPN.com. He has a point. And it is a point that the players' attorneys might add in their more extensive brief that will be filed on Friday.

What can the players do if they lose again and the lockout remains in effect?

The next step for the players would be a request for reconsideration of the adverse decision by the entire panel of judges in the 8th Circuit rather than just the three who ruled on Monday. It is known as an en banc hearing. It is likely that the players will request the en banc hearing, because they would have little hope of persuading the U.S. Supreme Court to accept the case for consideration. In addition to the three judges who already have considered the lockout, there are eight more judges in the high court. Although en banc hearings are not common, they happen with some frequency in litigation involving sports. The 9th Circuit Court of Appeals, for example, reconsidered various rulings in an en banc hearing in the litigation over the 2003 drug testing in Major League Baseball. If judges in the 8th Circuit wanted to reconsider the lockout in an en banc hearing, the process would continue well into September and possibly October. It would have a serious impact on the 2011 season.

Two judges go in one direction, and two other judges go in the opposite direction in the same case. What is going on here?

Cases are supposed to be decided on the facts and the relevant law, but there may be a political or partisan dimension to the decision-making of these judges. There is definitely an ideological aspect to the positions that these judges have taken on the lockout. The two who sided with the owners, Steven Colloton and Duane Benton, were both appointed to the high court by former President George W. Bush. The two judges who sided with the players, Nelson and Bye, were appointed by former President Bill Clinton and by President Barack Obama. It is difficult to ignore the obvious pattern in the judges' conclusions on a labor dispute. But it is also a bit of a paradox that the two Republican judges are in the position of questioning the players' decertification of their union and made a decision that in effect keeps the players confined to their union. The conservative judges are supporting the idea of a union and collective bargaining, while the liberal judges are supporting the end of the union and a reliance on the free market and antitrust regulation. It's a reverse of the usual ideology and a sign of the complexity and uncertainty of the disputes that separate the owners and players.

The situation is complicated and growing more complicated. When do we start using the word "chaos" to describe the current state of the NFL?

We might be approaching the point of chaos. Neither the players nor the owners have shown any indication that they are willing to agree on anything. Instead of words such as "negotiation," "concession," and "compromise," we see words like "appeal," "reconsideration" and "en banc hearing." There is no end in sight. The players are locked out; the lawyers are locked in. One side gains some leverage, then the other side gains some leverage. Litigation that is supposed to help solve the problem is making the problem more complicated. The 2011 season is clearly in jeopardy.

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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