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Experts: Players' case is stronger, but NFL could win appeal

by | CBSSports.com Senior Writer
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It's been two weeks since the Eighth Circuit Court of Appeals granted a temporary stay of an injunction that lifted the NFL lockout, which means it's been two weeks since players were allowed to return to work. The expectation then was that the court would follow with an immediate ruling on a permanent stay, but that didn't happen.

In fact, it's still not happening.

There has been no ruling, no permanent stay and no end to the lockout -- no nothing since the court swung into action two weeks ago. I wish I knew what that meant.

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I don't. But I know someone who does. In fact, I know two experts on the subject. So I called them. They are Stanford Law professor William Gould, who recently served as chairman of the National Labor Relations Board (NLRB) and who mediated the 1992 and '93 salary disputes between the Major League Baseball Players' Association and Major League Baseball Players Relations Committee; and University of Toledo professor Geoffrey Rapp, who clerked for Judge Cornelia Kennedy at the U.S. Court of Appeals for the Sixth Circuit, was a teaching fellow at Yale Law School and did considerable research on the economic aspects of sports law.

I asked the questions. They provided the insight into what is becoming an increasingly complicated and unpredictable subject. And what they had to say is that while they believe the players have the stronger case, they won't discount the possibility of the NFL winning on appeal.

Question: It's been three weeks since the Eighth Circuit Court of Appeals granted a temporary stay of Judge Susan Nelson's injunction. The feeling then was that a ruling on a permanent stay would follow, but so far we have nothing. My question is twofold: A) Are you surprised nothing has happened? And B) what, if anything, should we read into it?

Gould: It does surprise me, first of all. I expected a ruling at an earlier point, but I think what it may say is that the court is deeply divided on this issue. It was a very persuasive and, I would say, stinging short dissent by Judge Kermit Bye, [evidence that] the court was divided on the question of a temporary stay. My sense would be that they [the judges] may well want to get a better sense of the merits of the dispute through the briefing by the parties before they make a ruling on this. Their reversal of Judge Nelson was so dramatically at odds with the case authority that she and the dissenting judge had cited. My sense is they're deeply divided and may have temporarily postponed this until they can a better sense of the merits.

Rapp: In a way I'm surprised because so many people expected a rather quick decision on whether to permanently stay the injunction and because one of the judges dissenting from the decision to grant the temporary stay indicated that he thought they would be able to reach a decision in short order on the question of a permanent stay. All signs pointed to them doing that relatively quickly. On the other hand, I'm not surprised because I think the court might want to take its time to make sure it gets this one right, given the high level of attention paid to this case by the media and the public at large and what, I think, are likely to be the important consequences of this "stay decision" on who has the upper hand if the two sides decide to return to the negotiating table.

Question: With each day that passes, there's a feeling that we won't hear from the judges until the plaintiffs and defendants appear before the court on June 3 -- that, essentially, the temporary stay is more like a permanent stay. What do you think?

Gould: At this point, it wouldn't surprise me ... given that we're now about three weeks away from June 3. Having come this far it wouldn't surprise me.

Rapp: It starts to take on the flavor of a permanent stay. The big difference, though, would be if the court were to grant a permanent stay that would carry through until such time as it renders a decision on the merits of the NFL's appeal of the district court's decision. So June 3 is the next date that we're all looking at, but it might take the court many weeks, maybe even months, to issue a final decision on whether to overturn that injunction. If it were to grant a permanent stay, the NFL would be able to enforce a lockout all the way up until that point. That the stay is still temporary suggests to me that it might take until June 3 to know whether the permanent stay is going to be granted or not. But this is not likely to carry over throughout the whole decision-making process on the underlying substance of the appeal.

From the judges' perspective, I think there's a decent chance we'll [get] some published decision about a permanent stay. We still have three weeks or so, so I think there's a decent chance they're putting the finishing touches on something right now, and we'll be seeing it next week or the week after.

Question: Whether or not that happens, what should we read into what has happened -- which is nothing -- since the court's ruling on April 29?

Gould: I would read two things into it: 1) That the court is divided and is trying to get its arms around the case; and 2) that, given the fact that the temporary stay is working against the interests of the plaintiffs here, that the grant of the temporary stay in the first instance manifested some skepticism about the plaintiffs' case.

Rapp: We knew there was probably going to be at least one vote against a permanent stay. That we haven't seen a decision so far might suggest that one of the judges who voted in favor of the temporary stay isn't quite ready to go along with the permanent stay, and they're trying to decide who's going to ultimately prevail on the question of the permanent stay. That shows that maybe there are good arguments being made within the chambers on both sides and that the judges are taking their time to get this one right.

Question: I assume you've studied the case. The NFL's point is that this is a labor dispute, not an antitrust case. Agree or disagree?

Gould: That's a very big question. Their [the NFL] argument is that this is a labor case, not an anti-trust case, and the plaintiffs' argument is the other way around. I would tend to disagree with the NFL. I think all of the authority and judicial precedent with regard to the tactic -- and I call it a tactic, in contrast to the plaintiffs -- is in favor of the plaintiffs. The first argument put forward by the NFL -- i.e., that the Norris-Laguardia Act of 1932 precludes the court from issuing an injunction against a lockout -- I think is in error. But what the Court of Appeals for the Eighth Circuit will think is another matter.

Rapp: I think the district court had it right in its response to that point. Once there's no union there's no labor dispute anymore. And labor laws exist to protect the relationship between unions and employers. But, from all indications, the union has decertified and is no longer acting as a union, engaging in exclusive negotiating with the employer -- which means there's no labor relationship left to protect, and I don't think the NFL is going to win that argument.

Question: The NFL has centered some of its case on the NFLPA's decertification, saying it is "a sham" and nothing more than a tactic. I have friends in the legal profession who tell me that argument won't sell with judges. What is your opinion: Is decertification and the question of its validity a big deal or not?

Gould: Thus far, the judges who have looked at this and the regional directors of the NLRB who have looked at this have not found merit in the NFL's position. This is a game that is being played by both sides. The union says it is not a tactic; the owners say it is. But the last time the union did this, the owners said, "We'll only settle the anti-trust dispute if you will agree to come back as a union." That is the reality; that is the sine qua non for any settlement of this dispute. Both sides are being disingenuous, and the case law thus far is on the union's side.

By the way, this is something that hasn't surfaced thus far -- and we'll see when the plaintiffs file their briefs next week, and Judge Nelson paid no attention to this -- but the collective bargaining agreement precludes the NFL's assertion that it is "a sham." Are you aware of that? It's a complicated argument unto itself, but that's the bargain they made. In 1993 when the consent decree was fashioned, the NFL said, "We're not going to agree to enter into a consent decree and settle this anti-trust case unless you agree to come back into existence." And the union said, "We're not going to come back into existence unless you agree not to assert the next time that we do it that it's not a sham."

Rapp: I don't think it's a big deal. I think the NFL, while being creative, ultimately was wrong on the issue, and the judge recognized that. You could have a situation where the decertification was "a sham," but what that would require the NFL to show is that the players' union is still acting as a union -- [that] it is still acting as the exclusive bargaining representative of the employees. To me, everything I've seen, that clearly is not the case. This was a legitimate decertification, a high-risk move for the players, but they did it. The fact that it's a tactic doesn't mean it's invalid. All sorts of things in labor management relations and in litigation are tactical in nature, but as long as they are executed properly and no fraud is being perpetrated on the court, they are legally valid maneuvers, and decertification here seems to me to be a legally valid maneuver.

Question: There's a feeling that if the NFL is going to win a judgment on appeal that the Eighth Circuit gives it a reasonable shot -- particularly because of its conservative makeup. Bottom line: Do you think the NFL wins on appeal?

Gould: I can't give you a specific odds figure because that would be pure speculation on my part. I do think that now, in the year 2011, this is the most conservative court of appeals in the United States. As you may know, I was chairman of the National Labors Relations Board involved in the baseball strike, and I recall that many or our orders going up to the court of appeals -- when it was the Eighth Circuit and when it was much less conservative than it is today -- were reversed. Now, no one knows what these judges will think, but I think the owners have the best possible forum for this case, from their perspective.

Rapp: I'm kind of torn on this. I think the NFL's argument about the "sham" and their argument on jurisdiction, which lost at the district court, are going to lose at the appellate court. But the one tough issue for the players is the requirement for irreparable harm, which is necessary to grant an injunction. The argument that was made before the district court, which it accepted, was that for some individual players they might be in a position where they want to negotiate contracts right now, and they're unable to do so. And the uncertainty around how NFL contracts are executed might mean that we never knew for sure how much they would've gotten paid. There might be some players who get injured and, as a result, have shorter careers. And those, of course, would be serious things for those individual players, but I guess the question for me is: Why couldn't money make up for those harms? Because if money can make up for it, then it is a reparable harm instead of an irreparable harm, and not a proper basis to grant an injunction.

[On the question of the "irreparable harm" being damaged by comments by those like Wes Welker, Ray Lewis and Reggie Bush,] the difficulty players have is that they have hundreds of individuals who might share their thoughts and speak in ways that overall are probably not in the best interests of the players. The owners, by contrast, have fewer individuals to control, and those individuals tend to be more sophisticated and have a lawyer sitting next to them when they are talking.

So, certainly, it undermines the players' position a little bit in the eyes of the public, but the issue of irreparable harm is one where the court is going to look at the record, look at the evidence the district court had and decide based on that -- not based on stray comments by one or two players at issue that appear in the media.

The real question for irreparable harm is if the players don't have an injunction in place, and they're litigating their anti-trust case while the NFL is enforcing the lockout, is there some harm the players would suffer that awarding them money at the end of the antitrust case wouldn't compensate them for? The district court thought there was. I'm not sure the appellate court will buy that argument.

The judges will look closely at what the district court found were the indications of irreparable harm. Appellate courts tend to defer to district courts in a lot of ways when the district court is hearing witnesses and reading the full record. The appellate court will look at what the district court had to say, and they're not likely to go off on their own and look at evidence that wasn't presented at the district court. It's not about what's been said since; it's about whether when the district court granted this decision it got the law right.

This is going to be a close call because while the NFLPA should clearly win two of the three big issues they won below [in the district court], on that last one -- which is the hardest one for them -- I'm not sure they'll get a positive result. As long as the NFL wins that argument, the injunction would be vacated.

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