Thursday, June 2, 2011
Updated: June 3, 11:41 AM ET
Owners, players at critical juncture
By Andrew Brandt
Special to ESPN.com
On Friday, the 8th Circuit Court of Appeals will be the epicenter of the two-year labor/legal battle between the NFL and its players.
The court will hear oral arguments regarding the NFL's appeal of the players' victory at the lower court level, where Judge Susan Nelson granted the players a preliminary injunction blocking the lockout. Many (including myself) hope that the result of Friday's hearing may be the tipping point to ultimately produce meaningful negotiations and/or a long-term collective bargaining agreement. Both sides appreciate the gravity of this proceeding, filing lengthy legal briefs vehemently championing their respective positions.
In anticipation of perhaps the most important date on the 2011 NFL calendar -- I know, that is a sad statement -- here is a primer (in football terms) on what to expect Friday:
Replay: Where we are and where we've been
On April 25, Nelson granted the players an injunction, blocking the NFL from imposing a lockout, although the triumph was short-lived. During the second night of the NFL draft, on April 29, a 2-1 court panel issued a temporary stay of Nelson's order, reinstituting the lockout. Seventeen days later the temporary stay became not so temporary, as the same panel -- again split 2-1 -- granted a permanent stay of the lockout. The lockout continues -- at a minimum -- until the court rules on the appeal, not expected for a few weeks.
In the interim, court-ordered mediation with Magistrate Judge Arthur Boylan has been futile and continues next week while the sides await a ruling from the court.
The players are at a slight disadvantage at this juncture. The court's permanent stay order included critical language aimed at Nelson, emphasizing that the court has "considerable doubts" as to Nelson's ruling.
High-priced free-agent lawyer signings
To guide them through this labor dispute, the players and owners have hired enough attorneys to outfit an NFL sideline. Besides the usual counselors of note -- Gregg Levy for the owners and Jeffrey Kessler for the players -- both sides have added former Bush administration U.S. solicitors general to their all-star legal lineup.
Past colleagues that are now adversaries, Paul Clement (representing the owners) and Ted Olson (representing the players) will square off in St. Louis, tasked with persuading the court to rule in their favor. Friday's hearing will be their show, with Olson perhaps the most important player in the process -- trying to overcome a 2-1 ruling on the stay -- as the short-term fate of the NFL hangs in the balance.
Since March 11, the owners and players have continued to beat the same drum. The owners have four arguments:
1. The Norris-LaGuardia Act prohibits federal district courts from issuing injunctions in matters that "involve or grow out of a labor dispute." The owners steadfastly characterize this as a labor dispute as the NFLPA decertified within hours after a collective bargaining session March 11.
2. The NFLPA's decertification was a sham. The owners want their pending unfair labor practice charge with the National Labor Relations Board -- filed in February -- resolved prior to the issuance of any injunction.
3. The nonstatutory labor exemption -- protecting them from an antitrust suit filed by the players, i.e. Brady v. NFL -- is still intact because it continues to apply "sufficiently distant in time and in circumstances" from collective bargaining. In layman's terms, the owners argue that the players cannot even bring an antitrust lawsuit because there is still a management-labor relationship.
4. Nelson erred in applying the four-factor test for an injunction, as the players do not have a likelihood of success on the merits of their underlying antitrust claim.
The players counter with four arguments:
1. The Norris-LaGuardia Act does not apply in this context. Olson will try to persuade the court that the owners turned the act on its head, as the legislative purpose was to prevent courts from blocking employee strikes, not employer lockouts. Olson will point out that the court is ignoring 80 years of judicial interpretation of the act to rule in the owners' favor.
2. The act also is inapplicable because it applies only in "labor disputes." The NFLPA's decertification was unequivocal, permanent and effective, thus instantly ending the collective bargaining (labor) relationship.
3. The nonstatutory labor exemption does not exist because the collective bargaining relationship ended March 11. The players also stress the NFL expressly waived any "sham" defense in the recently expired CBA as a condition of the 1993 settlement agreement in White v. NFL (the last time the players had decertified).
4. Nelson properly applied the four-factor test in issuing the injunction blocking the lockout.
Indisputable evidence to overturn?
Because the players and the owners disagree on almost everything nowadays, it is not surprising that they dispute which standard of review -- the amount of deference the court gives to a lower court's decision -- should apply.
The owners argue that its jurisdictional arguments -- the Norris-LaGuardia Act, the NLRB and the nonstatutory labor exemption -- mandate application of a de novo standard, beginning again without deference to Nelson. Conversely, the players argue that the court should apply a more deferential standard.
In their 2-1 ruling keeping the lockout in place through appeal, the court sided with the owners' argument of a de novo analysis. On Friday, both sides will make their arguments again.
Andrew Brandt, a former NFL executive and agent, writes for the National Football Post and is ESPN's NFL business analyst. Follow him on Twitter: @adbrandt