Print and Go Back ESPN.com: Commentary [Print without images]

Friday, April 29, 2011
Judge's NFL lockout rulings: impressive

By Lester Munson
ESPN.com

Legal terms are starting to pile up in the NFL. Injunction. Stay. Supersedeas bond. Expedited appeal. Irreparable harm. Treble damages. Nonstatutory labor exemption. And many more. The confusing jumble of terms began to emerge Monday after findings from U.S. District Judge Susan Nelson that the owners' lockout of the players was illegal and that it must be stopped immediately. Nelson's decision and the legal maneuvering that came after her decision led to confusion and raised questions about free agency, contracts, bonuses, workouts and all the other things that players and owners would normally be doing in April and May, not to mention the prospects for a 2011 season. Here are some of the questions and their answers:

What exactly has changed as a result of Judge Nelson's decision?

Judge Nelson issued a court order that ended the lockout. She made a detailed and scholarly analysis of the situation, concluded that the lockout was a clear violation of basic laws that govern American businesses, and issued a court order (an injunction) that barred the owners from continuing to lock out the players. Although the opinion was 89 pages in length, Nelson went no further. She simply ended the lockout. She did not venture into the definitions of different forms of free agency the league might now institute, or the procedures for signing drafted or undrafted players, or the rules for allowing players to work out at team facilities. The only issue before Judge Nelson was the legality of the lockout. Once she decided it was illegal, she was done.

Lovie Smith
The Bears' Lovie Smith fielded the questions we all had after the lockout was lifted.

But what happens now? Can teams sign free agents? Can players use team facilities?

Now that the judge has denied the owners' request for a delay in the effect of her order ending the lockout, it is up to the owners and the players to find a way to do the things that are necessary to prepare for the 2011 season. Judge Nelson will not be writing those rules. The owners tried to explain to her that they were caught in a dilemma. If they allowed an open market for players, they argued, players would flock to big markets, destroying the competitive balance of the league. If they formulated rules for preseason activities, they asserted, those rules would be attacked as violations of antitrust law.

Nelson clearly was ready for the owners' arguments. Relying on materials submitted by the players' attorneys -- including a remarkable sworn statement of NFL history from NFLPA general counsel Richard Berthelsen -- the judge reminded the owners that in 2010, a season with no salary cap, there was no rush of players to big market teams. She noted that both teams in the Super Bowl came from small markets (Pittsburgh and Green Bay). And she also reminded the owners that in previous situations, the league was able to establish structures that worked. She explained, "The NFL has previously adopted new player systems, including the implementation of 'Plan B' in 1989, the uncapped system in 2003, the imposition of a cap in 2004, changes in the system in 2006, and the removal of the cap and new free agency rules in 2010." Her reminder of league history seems to have worked. The owners are now opening facilities and setting procedures for player negotiations even as they appeal Nelson's ruling and her refusal to delay it.

What about the owners' appeal? Will they succeed in reversing Judge Nelson's decision and restoring their lockout?

It is not easy to predict what the higher court will do with the owners' appeal, but my guess is that the appellate court will agree with Judge Nelson and approve her actions. In her opinions, Nelson was meticulous in her consideration of the owners' arguments in support of their lockout. Claiming that the decertification of the players' union is a sham and that the conflict is a labor dispute that does not belong in Nelson's courtroom, the owners went 0-for-2. The claim of a sham decertification is not new, Nelson said in both opinions. In an assertion that must have annoyed the owners' lawyers, she said that their argument on decertification was neither "novel nor difficult." The legal precedents on the issue, Nelson said, are all in support of the idea that the players could decertify whenever they wished. In great detail, she disposed of the owners' claim that she should defer to the National Labor Relations Board, explaining that the owners' use of previous decisions of the U.S. Supreme Court is deeply flawed. Describing one claim of a binding legal precedent from the owners, she wrote that her examination of the old case "discloses no such holding." That is not what you want to see in a judge's opinion if you are the lawyer who relied on the old case.

The owners have had a couple of successes in the U.S. Court of Appeals for the 8th Circuit, the body that will decide the appeal. But Nelson's opinions are brilliantly reasoned and well written. It will be difficult for any judge of the higher court to find a rationale for reversing them.

Is this the beginning of the end of the owners' lockout strategy?

Charlie Batch
Charlie Batch and Ryan Clark reported to the Steelers' training facility this week.

It might be. The owners are one court decision away from the death of a tactic that they planned and refined for the past three years. It should not be a big surprise. The owners knew from the beginning that antitrust laws would be a problem. But the real beginning of the end probably occurred in May 2010. The first step in their lockout process was a bold attempt to change the law in the U.S. Supreme Court. In a case they had already won in the lower courts, they asked the nine justices of the nation's highest court to reconsider the rules that govern monopolies that control entire markets. The case, known as American Needle, involved hats and caps, but the NFL attorneys used it to try to immunize the league from rulings like the one Judge Nelson made Monday. Their hope was that the conservative, pro-business majority on the Supreme Court would be sympathetic to their ideas. It was a bold and creative gambit, and it failed miserably. By a vote of 9-0 last May, the justices shot down the NFL's ideas for a new and more favorable antitrust law. It is almost impossible to lose 9-0 in the high court, but the owners managed to do it. Without the change in the law that they knew they needed, they were vulnerable when the players decertified and filed their antitrust attack on the lockout.

Should fans be encouraged or discouraged about the prospects for a 2011 season?

Fans should be encouraged. The injunction and the supporting opinion that Judge Nelson issued Monday are major steps toward a full season. The most encouraging aspect of Judge Nelson's action (if you're anyone other than an NFL owner, that is) is her definition of the "public interest." In any case in American courts that involves a request for an injunction, the judge is required to consider the public interest. The owners' idea of the public interest is the integrity of the collective bargaining process. It's a valid point, but it's become less important as labor unions have lost membership and influence. Judge Nelson adopted a different definition of the public interests. For her, the public interest consists of two things: "enforcing the Sherman Act [antitrust laws]" and "considering the wide-scale ramifications of a lost football season to the public." Nelson's definition of the public interest is that last thing the owners and their lawyers wanted to see in an opinion. If Nelson is right about the public interest, the lockout tactic is doomed.

What was the turning point in this process? What caused Judge Nelson to rule so emphatically in favor of the players and against the owners?

The judge does not define the turning point in her opinions, but it is clear in reading them that she was enormously impressed with a series of affidavits (sworn, written statements) from Berthelsen and knowledgeable player agents that described the precarious nature of an NFL career. Sitting out an entire season, the affidavits explained, would result in "diminishment of skills that would shorten or end the careers of some players." The affidavits also described, Nelson noted, the "ever-present risk of career-ending injury and the constant physical wear and tear on players' bodies." The owners offered nothing in response to the descriptions of players' plights, so those descriptions of the uncertainties and dangers of NFL careers were uncontradicted. Nelson was clearly impressed. If they were not the turning point for Nelson, the affidavits were a major factor.

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.

MORE COMMENTARY »