Now that we've heard from the 8th Circuit Court of Appeals, we need to hear from NFL players. Because the next move is up to them, and the next move determines what happens to the 2011 season.
Of course, nothing happens until the 8th Circuit hears arguments on the NFL's motion to appeal an April ruling ending its lockout. But I think we can all anticipate where it's going with its next decision, and where it's going is not in the players' direction.
"It's unlikely we'll see something from the court in June that's appreciably different from what it did (Monday)," said Stanford Law professor William Gould, former head of the National Labor Relations Board.
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So let's assume the NFL wins on appeal, and the lockout remains in effect. Then what? Well, then NFL players must respond. After suffering a significant setback Monday they're in desperate need of something, anything that can hold them together.
That something could be a ruling by U.S. District Court Judge David Doty, who is expected to grant NFL players significant damages stemming from a TV rights decision on March 1. That award could embolden them and convince players to dig in for a long and protracted battle ... only keep this in mind: Doty's ruling would be appealed, and it almost certainly would be appealed to the Eighth Circuit.
"They will have to reassess their position," Gould said of the players. "I think they will have to retreat. There really is no other avenue open to them except Judge Doty's decision, and that's their only leverage -- if, of course, (an appeal) is affirmed by the court of appeals."
But Doty can't lift a lockout. The 8th Circuit can, only it almost certainly won't. Doty's decision could, however, convince players to hold fast – depending, of course, on the extent on damages. But, remember: No matter what he decides, an appeal almost surely goes to the site of the NFL's latest -- and most significant -- triumph.
"I'm not so sure [you can guarantee a favorable judgment]," said Gould. "I've always thought the 8th Circuit would come out, as apparently it has, on the basic issue of a lockout. But don't forget it affirmed Judge Doty in the past, and two years ago it rejected an attempt by the NFL to strip Judge Doty's consent decree away and to disqualify Judge Doty himself. I don't take it as a given that it will necessarily reverse Judge Doty."
I don't, either. But it's a gamble, and what NFL players must ask themselves now is: Is it a gamble worth taking? The longer a stalemate goes on the greater the likelihood of player unrest and defections, and if you don't believe me look what happened during the 1987 strike. Veterans jumped picket lines after only a few weeks, and while this is a lockout -- not a strike -- the general feeling is that players can't ... and won't ... hold together over the long haul.
I guess we're about to find out.
I have no doubt that players gain a considerable amount of damages in the TV broadcast case. I also have no doubt that the case is appealed to the court where they just suffered a devastating loss. In the aftermath of Monday's decision players said they were committed to mediation and saving the season, and they should be. The courts that delivered them so many victories in the past betrayed them, and that may force players to reconsider their strategy.
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"The big question," said University of Toledo College of Law professor Geoffrey Rapp, "is how far they want to take this dispute. Based on how the panel of judges indicated they will likely read the jurisdictional issues, the players are unlikely to get an injunction to stop the lockout.
"But my own reading of the law is that while the jurisdictional argument is plausible in connection with the lockout itself, it will have little bearing on the eventual resolution of the antitrust issues relating to free agency, the draft and the salary cap.
"The players still seem to me to have the better argument on the underlying antitrust law, even if they can't get an injunction to stop the lockout. But what this means is that the players have to decide if they are willing to sacrifice this season -- and the money that comes with it -- in pursuit of what might be a victory down the road in an antitrust proceeding. I'm not sure there would be a uniformity of support for that approach among players, which increases the likelihood that the two sides will be able to reach a solution in mediation."
Mediation, of course, is where the NFL and its players have been since late February. Thus far, there has been no breakthrough, with sources refuting reports Monday that "progress' was being made. But there had been no breakthrough in the courts, either. Now there has, and while I reiterate that players aren't finished, the road has taken a significant turn -- and for them it's backwards.
"I think [Monday's decision] was a big setback for the players, particularly since the judges here said more than they needed to in terms of granting the stay," said Rapp. "The two judges that granted the stay cast doubt on some of the key arguments the players will have to win to stop the lockout.
"Legally, the players could petition for a rehearing, either by the three-judge panel or the whole 8th Circuit in what's called an 'en banc' hearing. I doubt that either such moves make sense for the players, given the short time between now and June 3. They likely will be dedicating their efforts to the June 3 hearing, while at the same time returning to mediation with more enthusiasm."
The key there is "more enthusiasm." Once, players relied on the courts as a safety net, confident that what they didn't gain from the NFL they would gain through the courts. But that didn't happen this week, so now the players must decide if they hunker down, waiting on Judge Doty to rule in their favor -- risking a loss of support as the lockout continues and paychecks are missed -- or try to resolve this dispute with a renewed sense of, as Rapp put it, "enthusiasm" through mediation.
"The next move is up to them," said Gould. "The players are going to be confronted with a lot of rank-and-file restiveness, and that will be the basic reality. I think they are going to have to retreat from what they thought they would get when this exercise commenced on March 11. But how much they retreat depends on the remedy that is fashioned by Judge Doty and the court of appeals' receptiveness to it."
What players decide could determine what happens to the 2011 season. Let's face it: No matter what Judge Doty decides it will not lift the lockout. It could weaken the owners' position, but it won't open the gates -- not yet anyway. And with the 8th Circuit all but certain to uphold the lockout, it may be that players finally agree with owners on something -- namely, that courts aren't where their dispute should be settled.
"From the beginning," said Rapp, "I thought that both sides wanted a season this year, and I think the court's recent ruling has given both sides a better appreciation of the strengths of their relative legal positions. With that in mind, they should be more open to bargaining towards a resolution."
That is the hope. The reality is that a season is in jeopardy, and NFL players have a difficult decision as to where to go next. Time is not on their side and, for once, neither are the courts -- and that could compel them a change of strategy that could increase the likelihood of saving the season.
"The basic dynamics," said Gould, "are that time is always working against the players and the union, a factor the Court of Appeals for the 8th Circuit completely ignored. But now those dynamics will pressure the (players) to come to grips with this new situation.
"A lot of their membership will be urging them to resolve this on the best terms available, and I think there is a good chance we will see football in 2011 -- maybe for the entire season."