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Friday, May 20, 2011
Dispatches from the NFL lockout fronts

By Lester Munson

They say football games are won in the trenches. Maybe that's true for the NFL's legal games, too.

The hostilities in the NFL's labor war keep escalating in a profound number of ways. Let us count them for you …

The owners and players are now fighting major battles on four legal fronts in three federal courthouses and two offices of the National Labor Relations Board, and they're using at least two dozen top-of-the-line lawyers from eight of America's most expensive law firms.

Here's what it all adds up to: Instead of watching great athletes play America's favorite sport, we find ourselves watching great lawyers play their favorite sport -- beating the hell out of each other in grinding litigation.

In NFL games, the clock tells us when the contest is over, and the scoreboard tells us who won. In NFL litigation, the game is never over, and we're never sure who is winning. If one side scores, the other side immediately appeals. Everything is subject to "further review." The owners and the players are locked in a seemingly-endless overtime, and the phrase "sudden death" takes on new meaning.

In a game, unsportsmanlike conduct is rare and results in a penalty on the transgressor. In litigation, unsportsmanlike conduct is routine and results in higher fees for the lawyers.

Unnecessary roughness? A late hit? In a game, they are penalized. In litigation, they are opportunities.

NFL players lawyers
This is what passes for "action" these days.

At the end of NFL games, you see players from both teams greeting and hugging one other, some of them gathering in fellowship and prayer at the center of the field. At the end of court hearings, you see attorneys from both sides ignoring one other and walking off in different directions.

After a Sunday of NFL games, we are treated to videotaped highlights of great athletes doing great things. After a day of court hearings, we are treated to photos of old guys in suits standing on a sidewalk outside a courthouse and making prolix pronouncements.

The NFL is like a wreck on the side of the road right now. As revolting as it might be, it's impossible to turn away. You don't want to look, but you can't help yourself. You want to keep going, pretend it's not there. But it is there, and it's not going anywhere anytime soon. It's the NFL, the most popular and most profitable enterprise in all of sports, and its 2011 season is at stake.

At any given moment, it can be difficult to determine what is happening in this litigation war. But thanks to the view from our Courtside Seat, we can help. Here is a status report on the current state of the four battles now underway:

Lockout Injunction Litigation

This is the one most recently in the news, the latest twist coming early this week. But it started in mid-March, just after negotiations broke down and the CBA expired.

In the first major skirmish after the owners ordered their lockout, the players scored a major victory. U.S. District Judge Susan Richard Nelson declared the lockout to be illegal and issued an injunction that ended it. Nelson took it one step further for the players, refusing to issue a stay that would have given the owners time to appeal her decision with their lockout still in effect.

The owners appealed both of Nelson's decisions, the injunction and the stay; and their appeals have been successful, resulting in major wins for the owners. In a pair of 2-1 decisions, the U.S. Court of Appeals for the 8th Circuit issued a temporary stay and then a permanent stay of the injunction, putting the owners' lockout back into effect.

To determine whether Nelson's original injunction temporarily ending the lockout was correctly issued, the same three 8th Circuit judges will listen to arguments from both sides on June 3, with a decision expected in July. The two judges who voted to issue the stay of Nelson's injunction indicated in their opinion that they are leaning toward a decision for the owners next month, too.

If the owners succeed in eliminating the injunction and continuing their lockout in the next 8th Circuit decision, the players' only recourse will be to request reconsideration by all 11 judges of the 8th Circuit. The fact that the three-judge panel's decisions haven't been unanimous might help the players in their quest for reconsideration.

If and when the owners succeed in this litigation with a finding that their lockout is legal, it would be a major victory and would leave the players at a significant disadvantage in their bargaining for a new agreement.

Television Networks Litigation

In three years of preparations for their lockout, the owners renegotiated the league's contracts with the five television networks that broadcast NFL games. The new agreements provide for network payments to owners during the 2011 season, even if games are not played.

Maybe the league should award the next Super Bowl to the United States District Courthouse in Minneapolis.

In a surprisingly effective lawsuit against the owners that attacks the renegotiated contracts, the players are enjoying considerable success. U.S. District Judge David Doty has already opined that the owners' renegotiation of the contracts was "unconscionable."

Doty is pondering his final decision, with an opinion expected any day. If he rules for the players, he could award as much as $707 million in damages. It would be an expensive setback for the 32 owners, at least $20 million per team. (And yes, the owners would appeal any adverse ruling on the TV contracts. It would be another step in another unending battle.)

Antitrust Triple Damages Litigation

While the injunction phase of the players' antitrust lawsuit is drawing most of our attention, the money damages phase of the case remains in the background. Antitrust laws provide for both injunctions that stop illegal practices by monopoly businesses and triple damages to the victims of such practices.

It was the money damages phase of antitrust litigation in the early '90s that resulted in a series of player victories and the player-owner partnership that provided a bonanza of salaries, bonuses and profits for the NFL for nearly 20 years. A jury in Minneapolis at that time concluded that the owners' conduct was illegal and awarded money damages to a group of players (Freeman McNeil, among them), prompting the settlement talks that led to the historic agreement.

If the players are unable to stop the lockout with an injunction (as now seems likely), they will be left with the money-damages half of their antitrust action. That half will provide them with a bit of leverage, but the damages litigation process is slow. It will be months, maybe as much as a year, before anything conclusive happens.

National Labor Relations Board (NLRB) Investigation

Even before the collective bargaining agreement between the owners and the players expired at 12:01 a.m. on March 12, the owners filed a charge of unfair labor practices against the players' union. Filed on Feb. 14, the charge accused the NFLPA of planning to decertify and "then sue the NFL under the antitrust laws."

The owners, of course, were correct in their prediction. The union did decertify and disclaim its rights as a union, and the players did file their antitrust lawsuit in Minneapolis. The owners say all of this is illegal. The players say they are exercising their rights as Americans entitled to the protection of antitrust laws.

Gates at Lions
Meanwhile, back at the Lions' headquarters …

Investigators and lawyers in NLRB offices in New York and Washington have been analyzing the owners' charge for more than three months. They are interviewing people from both sides and gathering stacks of documents. When the NLRB operatives have concluded their investigation, the NLRB will decide whether there is enough evidence to issue a "complaint" against the union.

And that's just the beginning.

If the NLRB issues a complaint, an administrative law judge will conduct a hearing that will allow both sides to present their evidence and their arguments. The judge will make a decision, and then the losing side can move the case up the ladder to the board itself.

There is no timetable for any of these NLRB procedures. A spokesperson for the board could not give any estimate of the progress of the investigation or the timing of a decision on whether to issue a complaint. The NLRB is notoriously slow in its operation and in its decisions.

It's so slow, in fact, that it is easy to overlook what it is doing. The NLRB typically leans toward union workers, protecting their rights to democracy in the workplace. If, however, the NLRB staff somehow decides that the players' decertification of their union in anticipation of antitrust litigation is a violation of labor law, it would be an unexpected and major setback for the players and a triumph for the owners.

The weight of the wait

It is not a pretty picture. Think Tolstoy's "War And Peace" is a long story? The four major battles in the NFL's labor war and peace can go on indefinitely. Even when there is a decisive moment, the losing side finds a way to renew the fight with an appeal or a demand for reconsideration.

It would be nice if we could watch a scoreboard clock that would tell us how much time is left. But there is no two-minute warning in this game. And the 2011 season is 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