Posted on: May 16, 2011 8:20 pm

The issue of irreparable harm in court ruling

Posted by Josh Katzowitz

One of the factors used by the Eighth Circuit of Appeals in rendering its decision to permanently stay the lockout injunction today was the issue that District Court Judge Susan Nelson, who ended the lockout with the injunction, believed the players were the ones who were harmed the most.
NFL Labor

The appeals court could see both sides of the equation. It understood that the owners feel they’ll be harmed by the injunction because maintaining the lockout is key to their negotiating strategy against the players and the loss of leverage really hurts their cause – not to mention that opening up free agency would be harmful if the lockout is put back into place (the old “unscrambling the egg” analogy).

It also could sympathize with the players’ position in which they said they are being harmed by not being allowed to practice, learn their playbooks, work out at the team facilities, and take treatment by the team’s medical staffs – not to mention the 900 free agents whose employment status is up in the air.

Here’s how the majority opinion and the dissenting opinion felt about the issue of irreparable harm and which party – the owners or the players – were the ones being hurt the most.

Here are the opinions of Judges Steven Colloton and Duane Benton:

Both sides raise valid points, and this is a case in which one party or the other likely will suffer some degree of irreparable harm no matter how this court resolves the motion for a stay pending appeal. We do not agree, however, with the district court’s apparent view that the balance of the equities tilts heavily in favor of the Players. The district court gave little or no weight to the harm caused to the League by an injunction issued in the midst of an ongoing dispute over terms and conditions of employment. The court found irreparable harm to the Players because the lockout prevents free agents from negotiating contracts with any team, but gave no weight to harm that would be caused to the League by player transactions that would occur only with an injunction against the lockout. The court gave full weight to affidavit evidence submitted by the Players, although that proof was untested by cross-examination at a hearing. The district court’s analysis was conducted without the benefit of knowledge that this appeal will be submitted for decision on a highly expedited schedule – a circumstance that should minimize harm to the Players during the off-season and allow the case to be resolved well before the scheduled beginning of the 2011 season.

Here’s how the dissenting opinion saw the issue:

The irreparable harm alleged by the NFL “must be actual and not theoretical.” Moreover, the NFL cannot meet its burden if it demonstrates only economic loss, unless “the loss threatens the very existence of the [NFL’s] business,” because “economic loss does not, in and of itself, constitute irreparable harm."
Judge Kermit Bye also took issue with the NFL’s contention that the injunction harms the owners because it skews the advantage in collective bargain toward the players, writing, “Given that the parties will not likely return to the bargaining table prior to our resolution of this expedited appeal, at which point we will determine whether the district court properly enjoined the lockout, the NFL’s claim that it will suffer a loss of bargaining power in this interim period does not amount to ‘proof indicating that the harm is certain to occur in the near future’ for purposes of a stay pending appeal.”

And as far as who will suffer more harm – the players or the owners? Bye sided with the NFLPA:

Whatever harm may be said to befall the NFL during the pendency of the expedited appeal stands in stark contrast to the irreparable harm suffered by the Players. Regardless of the preclusion of free agency effectuated under the lockout and its influence on the Players, there can be little dispute that the off-season is an abundantly busy period for veterans and rookies alike. Even the brief stay occasioned during this expedited appeal will deprive the Players of “irreplaceable opportunities to develop their skills as football players and to otherwise advance their NFL careers.” … It follows that even the abbreviated harm fashioned by the stay will obviate the Players’  opportunities to engage in any of these off-season necessities, which could have dramatic repercussions to the Players’ careers in the long term.

Further, none of this harm can be adequately compensated by monetary damages.

Due to the irreparable harm presently incurred by the Players, compared with the limited harm, if any, suffered by the NFL, I believe the balance of harms weighs heavily in the Players’ favor. Consequently, I would require the NFL to satisfy a heavier burden of showing it is likely to prevail on the merits.

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