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Credit where it's due: 8th Circuit opened door to CBA progress

by | CBSSports.com Senior Writer

Two months ago, talks between NFL owners and players were at a standstill and the 2011 season in doubt. Today talks are on the verge of producing a new collective bargaining agreement that lifts a four-month lockout and puts pro football back in business.

So what happened? The 8th U.S. Circuit Court of Appeals, that's what.

While there are a passel of significant figures in the 125-day lockout -- with commissioner Roger Goodell and NFLPA executive director DeMaurice Smith the most visible -- none is more valuable to what's happening now than the three 8th Circuit judges who earlier this month upheld the league's lockout.

Without them, there would be no CBA this week. Without them, there would be no CBA this year ... or, in all likelihood, next year ... or, maybe, the year after that.

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I didn't say football. Of course, there would be football. Had the 8th Circuit lifted the lockout, players would have returned to work, practices would have resumed and games would have been played. But a new CBA? There's a better chance of the Pittsburgh Pirates winning the World Series.

"The decision lifting an injunction was absolutely a game-changer in these negotiations," said Geoffrey Rapp, professor at the University of Toledo's School of Law. "As long as players had hope that the lockout would be prohibited by the courts, they could choose to continue with litigation -- at, essentially, no cost to themselves. The league would have to let them come to work, and paychecks would be earned.

"But once the appellate court made it clear the lockout would not be prohibited, that made the reality of a potential lost season sink in for players. The concessions we've heard the players have made since, like dropping their share of the revenue by several percentage points, represent a real effort by the players to reach an agreement with the owners. Had the original injunction stopping the lockout been left in place, I think the players would not have faced the same pressure to adopt such an accommodating position."

I'll second that. Instead of a new agreement, the NFL would have had to draw up rules for the coming season(s), careful to tiptoe around potential antitrust issues. The logical assumption is that they would've returned to guidelines governing the 2010 season because they were part of the last collective bargaining agreement.

OK, so what's the problem? Well, let's see, there was no salary cap, no salary minimum, lost benefits and free agency after six years, not four. Gee, who do you think that disadvantages? All I know is that when I asked New England player representative Matt Light how he would like playing under those conditions again, he told me flat-out he wouldn't. Reason: They're not player friendly; they're owner friendly, which means management would be in no rush to undo them.

But that's the point. Players don't have to live with that system because the 8th Circuit intervened. When it granted the league a permanent stay in late May, it tilted the field in favor of owners and put negotiations on a fast track. Granted, the court still had to rule on an appeal, but its May decision presaged the likely verdict.

The court's May ruling had an immediate impact, with owners and players meeting clandestinely the week they were scheduled to make oral arguments in St. Louis. That was no coincidence. Until the 8th Circuit intervened, players believed their strongest and most reliable ally was the judicial system, and that it would give them what owners would not.

That, I believe, is why they walked away from federal mediation March 11 after league owners presented them a proposal that, if nothing else, was worth consideration. But players weren't interested. Instead of postponing negotiations, they decertified and took their case to the U.S. District Court in Minneapolis, where they had a history of success. The league countered by calling a lockout, and the deadlock began.

NFL Players Association lawyer Jeffrey Kessler was one of the main proponents of the union's litigation-centric strategy. (AP)  
NFL Players Association lawyer Jeffrey Kessler was one of the main proponents of the union's litigation-centric strategy. (AP)  
Sources close to those March talks said that Smith was interested in listening to owners and pursuing a deal. But, they suggested, the players' effective and persuasive legal team, headed by attorney Jeffrey Kessler, believed it had a better chance of scoring substantial gains through the courts. So players went there, gaining a victory in Minneapolis, before the 8th Circuit appeared.

And that's when everything changed.

Not only did the 8th Circuit stop the players' winning streak, it forced them to change strategies. Until then, owners urged the two sides to "negotiate, not litigate," but that message went unheeded as players gained notable court triumphs -- starting with a March 1 decision involving TV and broadcast rights.

Then the 8th Circuit stepped in, granting owners a permanent stay of an earlier injunction, and suddenly, the landscape shifted. Its verdict was worded so strongly and so completely that Smith must have known his chances of having the lockout lifted were DOA.

I know, players insisted they still had Judge David Doty's decision on broadcast damages to strengthen them, a significant amount some believe could reach as much as $1 billion. But this just in: The money would've been put in escrow, and the NFL would've appealed the decision.

Now, where do you think that appeal would have gone? All those who answered, "The 8th U.S. Circuit Court of Appeals," go to the head of the class. Plus, it would not have been an expedited appeal, meaning it might have taken a year to hear, maybe longer.

So now you're telling me that players would have been content to sit and wait? They couldn't sit three games the last time there was a work stoppage. That was the 1987 strike, when the league hired replacement players, and veterans couldn't wait to cross the picket line.

Fortunately for them, there was no picket line this time, so nobody could defect. But players reportedly had lockout insurance that would pay them approximately $200,000 each and serve as protection against potential mass defections.

Maybe. But let's do the math. A players' average annual salary is $1.7 million. Now he's supposed to take one for the team by sitting a season in a sport where the average career spans 3½ years and absorb an 88 percent pay cut instead of trying to negotiate a new deal ... especially when there's no guarantee the courts won't betray him again?


That's why you can't overstate the importance of the role the 8th Circuit played. Oddly, it took a court to move players and owners out of court. The 8th Circuit stopped the progress players gained through litigation and moved the two sides back to negotiations, where gains the past month-and-a-half have been so significant, we're on the brink of a new agreement.

"It's certainly not a coincidence," said one NFL executive, "that both sides started talking and that progress was made once the 8th Circuit Court of Appeals was engaged."

When the lockout is over and football resumes, we will celebrate the wisdom of both sides to reach an agreement in time to save the season; we will celebrate the unity of both sides for holding out for what they wanted; and we will celebrate Goodell and Smith for their unwavering roles in returning football to our living rooms.

But this never, ever would have happened this fast without Kermit Bye, Steven Colloton and Dwayne Benton. They are the three judges on the 8th Circuit panel that upheld the league lockout, and they are the three unsung heroes behind this season and the next CBA.

"I've always thought there was going to be a negotiated settlement," said Rapp, "since either side stood to lose too much money were the labor strife to continue into the fall. But the 8th Circuit's decision earlier this month seems to have sped up the resolution process.

"What the 8th Circuit's decision did was give the lawyers a much more accurate gauge to judge their current legal positions, and I'm glad to see that they've taken information to help bring the two sides together. Without this latest decision -- and the earlier decision from the 8th Circuit Court of Appeals -- the legal positions of the parties would have remained murky, and we likely would have lost some of the season."



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