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Judge makes court's case clear -- talk among yourselves

by | CBSSports.com Senior Writer
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ST. LOUIS -- The most significant comment at Friday's hearing before the Eighth Circuit Court of Appeals wasn't made by lawyers for the NFL or its players. It was made by presiding Judge Kermit Bye after each attorney finished with his argument and he brought the one-hour session to a conclusion.

Congratulating lawyers for their "exceptional" briefs and "well-represented" presentations, Judge Bye signed off by saying the court would render its decision "in due course" but "wouldn't be all that hurt if you go out and settle this case."

Players union leader DeMaurice Smith will have to read between the line as the judge says he'd give a decision 'in due course.' (AP)  
Players union leader DeMaurice Smith will have to read between the line as the judge says he'd give a decision 'in due course.' (AP)  
That was not an instruction. But it was a hint, and the suggestion was clear: Find a way to settle this yourselves, guys, and try to make it quick. Because if you don't, the court will make its decision, and one of you won't like it.

Of course, the court could delay that verdict to see how out-of-courts talks that began this week proceed. If they're productive, with both sides seeming to make progress toward a resolution, maybe, just maybe, the court delays its decision. If not, I would say we look for a verdict from the Eighth Circuit in two to three weeks.

"I think the court would love to see a settlement," said Geoffrey Rapp, professor at the College of Law at the University of Toledo. "Given the huge stakes here, any Eighth Circuit decision would be appealed to the United States Supreme Court [though there's no guarantee the court would grant certiorari.] So the best hope for a resolution of the dispute quickly is settlement, rather than the continued working of the judicial process.

"That said, I don't think the court will intentionally delay releasing an opinion. Even if it acts on an accelerated schedule it will still take awhile to get an agreement on a published decision. The timeframe the court has in mind will allow for discussions toward settlement to go wherever they are likely to go."

Barring an upset, the expectation is that the Eighth Circuit Court rules in favor of the NFL, allowing the lockout to stand and lifting an injunction issued in April by U.S. District Court Judge Susan Nelson. That is not based on anything that was said or done Friday; it is based on a permanent stay imposed last month by the same three judges who heard Friday's arguments.

With that ruling, they seemed to tip their hand toward a future decision in favor of the NFL, and the message wasn't lost on either side. In fact, I would argue that it was that decision -- with the expectation that the Eighth Circuit remains in the NFL's corner on its motion for appeal -- that brought players and owners together this week in Chicago for what were termed "confidential talks."

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There is a sense that progress was made there that hadn't been made at prior mediations, and the Eighth Circuit Court of Appeals must have agreed. Bye not only reminded both sides to pursue their options there, but he did it in front of an overflow audience that included notable agents, including Tom Condon, and approximately 25 past and current players.

"The sad part for the players," said former tight end Ernie Conwell, "is that they firmly believe there really wasn't a negotiating partner on the other side of the table [when negotiations broke off March 11]. The players feel like the plan all along was to lock the players out.

"I know the [NFL's] argument today is the only way [to a settlement is] to bargain, but we've been there and we didn't have a willing participant. Clearly, the plan has been for years to lock the doors on guys."

But Conwell also conceded that "time is on the league's side," and that's a key component here. Players were here to show their support for their side and to voice unanimity for the players' stand. But they know what Conwell knows, which is that the longer the stalemate lasts the worse their chances for holding out -- basically because management has more resources.

Of course, that doesn't mean owners aren't hurt, too. They are. The Cowboys' Jerry Jones has been public about the pressures he is under to own and operate a $1.2-billion stadium that sits empty. Attorney Paul Clement, who eloquently and forcefully argued the league's case Friday, insisted the lockout wasn't one-sided but amounted to a "self-inflicted wound" by owners who employed it as a negotiating tactic to push employees back to the bargaining table.

More important, Clement argued that the NFL's non-statutory labor exemption should be "one business cycle," or at least a year, and not six months as Judge Duane Benton suggested. That's important because it suggests the league is prepared to dig in for at least a year if it must, though most owners would tell you -- as the New York Giants' John Mara did at last week's meetings -- they believe there will be football this season.

"What we tried to make clear in there is that we think the lockout is the best way to get players back on the field," Clement said afterward. "And you say, 'Why do you think that?' We think that because that's what all labor laws say.

"The way you get labor peace is that you allow both sides to use the tools that labor law gives them. That means employees get the right to strike in certain situations, and employers get to lock people out. The idea is using those labor-law tools will accomplish labor peace."

The question, though, is how to get there. Either the league and its players accomplish something in out-of-court talks, or we hear from the Eighth Circuit Court of Appeals later this month, and the two sides take it from there.

"We are here today to try and lift the lockout so players can play football," said George Atallah, spokesman for the NFL Players Association. "At the same time, that doesn't mean that negotiations or settlement negotiations couldn't continue. You saw that over the past couple of days. It's a false choice to think that one could happen over the other."

But at least it's a choice, and the court on Friday made it clear which it would prefer the two sides make.

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