ST. LOUIS -- NFL general counsel Jeff Pash said last week that he worried, without negotiation with the players, one court date would just lead to another. The parties restarted mediated talks this week, but Friday's hearing before the 8th U.S. Circuit Court of Appeals is a critical one because of timing.
Ultimately, the 8th Circuit's ruling will be needed to send talks to the next level, and no matter the result, the losing party's next step would be to push the labor dispute to the point where the 2011 NFL season could be in real peril. As much as the league-imposed lockout and union decertification have been painted as "nuclear options," staying in court past the appeals court's ruling (and the pending TV rights fee ruling from U.S. District Judge David Doty) really would be one.
We enlisted NFL Network legal expert Gabe Feldman, director of Tulane University's Sports Law Program, to help guide us through what to look for in the courtroom.
Importance of the Norris-LaGuardia Act
The NFL has, in effect, turned this 1932 law on its head, taking a statute intended to defend workers and using it to protect an employer, in interpreting that the act says an injunction lifting a lockout can't be granted in a situation "growing out of a labor dispute."
U.S. District Judge Susan Nelson disagreed with the NFL's interpretation. The 8th Circuit, in its stay ruling, sided with the league. So the players will have to get one of the two George W. Bush-appointed judges (the Clinton appointee, Kermit Bye, already dissented) to change his mind and uphold Nelson's ruling to end the lockout.
Feldman's take: "The first thing we have to see is if the panel is going to, as expected, follow the reasoning they laid out in the stay opinion and deny the injunction. You're looking to see if anything that (players attorney Theodore) Olson says may change one of those two judges' minds. The expectation is the court will extend the stay to deny the injunction, so you're looking for clues that someone's mind has changed. ... It's a purely legal issue. It's just the interpretation of a federal statute and how it applies to these circumstances. The world hasn't changed, so the only thing that can change is a judge's interpretation of the statute. That'd be uncommon and is unlikely. An extreme long shot."
Will the antitrust case stand?
The 8th Circuit judges didn't tip their hands on the other two foundation pieces of the NFL's case -- the non-statutory labor exemption and primary jurisdiction -- in the stay ruling. The former moves for dismissal of the larger Brady et al antitrust lawsuit. The latter asserts that the National Labor Relations Board must rule on the NFL Players Association's March 11 decertification first, and a favorable ruling for the league there also would end the antitrust suit.
The players likely will try to focus on Norris-LaGuardia. Chances are, the NFL will focus on the non-statutory labor exemption and primary jurisdiction to try to shoot down the antitrust case. If the 8th Circuit again leaves these issues alone, it could level the playing field for the players in the face of a potentially negative ruling on Norris-LaGuardia.
Feldman's take: "The panel didn't mention these things at all in the stay ruling, so we really have no idea how the panel will rule on them in the appeal, if they rule at all. We may get a similar ruling -- only addressing Norris-LaGuardia, and nothing else. Or the panel could go further and put language in the opinion saying the non-statutory exemption applies, or that the decertification is a sham, or that these issues have to be assessed by the NLRB. Any of these outcomes would mean the players' antitrust case couldn't go forward, which would be crippling for the players. It eliminates all their leverage."
It'll be all business
Each side is permitted 30 minutes to argue -- and that's including rebuttals. So time will be at a premium.
The good news is that each party's position is clearly stated, as is the position of the judges, so it should lead to an efficient hearing that dives right into the issues.
Feldman's take: "This is a little unique, given that the panel has already ruled on the Norris-LaGuardia issue. I think the argument will be quickly focused, and not much time will be spent on background. They'll get right to the issues. The players have an uphill climb. It's not unlike being down 30 at the half and needing a remarkable comeback to have a chance. The players realize they have to convince one of the two judges to change his mind. What I'm looking for is whether Olson is able to make progress in convincing the judges on Norris-LaGuardia, and how much time the judges spend on the other legal issues."
Judges could telegraph what's ahead
On April 6, Nelson spent time telegraphing her decision, in what could be construed as an effort to show where leverage would go and persuade the sides not to waste time waiting for a ruling. The 8th Circuit judges could do the same, particularly with time growing shorter before regular-season games are put in jeopardy.
Will the three-judge panel show its hand? It could be what's best for both parties. Really, this hearing is about the aforementioned leverage points, and the fact they aren't yet defined is what's holding back talks. It'll be interesting to see if this notoriously business-minded court tries to help in that regard.
Feldman's take: "I think it's possible that they do that, but they also could do that by issuing a quick ruling and opinion, so it will be key to see if they give any indication as to when they will rule. But we'll probably not get the finality that the parties want until we get the opinion, which will define where the leverage points are. And I don't think negotiations will kick start until we get that opinion. Since it's a panel of three judges, they're going to want to discuss the ruling amongst themselves, and that complicates it a bit."
