NFL Lockout Thread

[Greg Ambrosius]

More: The NFL and NFL Players Association issued a statement Thursday, confirming that they had met in front of U.S. Magistrate Judge Arthur Boylan this week, but they revealed few details.

"The parties met pursuant to court mediation," the statement read. "Owners and players were engaged in confidential discussions before Chief Magistrate Judge Boylan. The court has ordered continued confidentiality of the mediation sessions."

Unlock HQ Video HQ video delivered by Akamai

Boylan later announced that the mediation session scheduled for next Tuesday and Wednesday in Minneapolis was canceled because "the Court has been engaged in confidential settlement discussions."

"We can't make a comment about it at all, but we're trying," Dallas Cowboys owner Jerry Jones told the Tribune. "We're trying. I think the fact that we're meeting is good."

[Greg Ambrosius]

Originally posted by King of Queens:
The more of this "behind the scenes" stuff I read, the less interested I become in professional sports. I hope the NBA is paying attention as well, because they're in even more trouble than the NFL. Hey, they had to meet "behind the scenes" to prevent the lawyers from showing up!! I think it's a good sign that the discussions are ongoing without the lawyers involved. They'll tell them after a deal is done and tell them how to draw up the language they need for the CBA. That's all they're good for now.

With any luck, the NBA will see what is happening, will see the good vibes they're getting from this post-season, see the good TV ratings of the Finals and hammer out a deal in the next month. I know that's not likely either, but you never know. If that happens, the NFBBC will be off and flying!!! I'd love to see it happen because fantasy basketball next year could be loads of fun.

[BillyWaz]

This is all great news. I'm feeling the positive vibe as well!!!!

As for the NBA......I could give two _ _ _ _ _ !

The NBA is a joke. A bunch of guys playing one on one street ball, and no one plays defense. I can't stomach to watch it.

[Greg Ambrosius]

Originally posted by BillyWaz:
This is all great news. I'm feeling the positive vibe as well!!!!

As for the NBA......I could give two _ _ _ _ _ !

The NBA is a joke. A bunch of guys playing one on one street ball, and no one plays defense. I can't stomach to watch it. I'm feeling it too Billy. Let's hope the two sides keep it moving forward and reach an agreement.

Billy is a 24/7/365 NFL guy. We all know that!!! No MLB. No NBA. Definitely no NHL!! But unfortunately Billy, there was TOO MUCH defense in Game 1 of the NBA Finals. I hope to see more offense in Game 2. I'll definitely be watching.

[Greg Ambrosius]

Not surprising, poor ol' DirecTV has sent out an email to its customers advertising a Sunday NFL Ticket "No Risk" policy. No charges until '11 games are confirmed. What else can they do?

[Greg Ambrosius]

Heading into today's important court hearing, I think Greg Bedard's story in the Boston Globe best summarizes what happened this week in Chicago with the private negotiations. This is where we're at today and hopefully a settlement of all lawsuits will bring the sides closer to an agreement on a new CBA. See here:

http://www.boston.com/sports/football/a ... um=twitter
There is hope on the National Football League labor front.

Yesterday, Judge Magistrate Arthur Boylan of US District Court in Minnesota canceled the two mediation sessions scheduled for next week between the NFL and its players because “the court has been engaged in confidential settlement discussions’’ of the Brady v. NFL case.

Those discussions took place the past two days in Chicago, held in secret between key members on both sides. Negotiations are expected to resume next week.

It’s a very significant step toward a labor agreement, according to sources on both sides.

It’s also an admission by both sides that some sort of time frame has to be put in place to get a deal done, or they’re going to head into the abyss of games being missed, and then it would be extremely difficult to reach an agreement that is fair to all.

Best case is that the sides reach a settlement within a month. But there are two lingering court decisions on the way that could affect any progress: Judge David Doty deciding on damages for the players in the TV rights case, and the decision on the preliminary injunction by the 8th Circuit Court, which will hear oral arguments today in St. Louis.

Doty’s decision is imminent. The 8th Circuit Court could take six weeks to make its decision.

And as with any negotiation, talks could break down at any time. But this was a major breakthrough.

For one thing, both sides finally took the lawyers out of the negotiations. Whether it’s Bob Batterman and Jeff Pash for the NFL, or Jeff Kessler and Jim Quinn for the Players Association, the lawyers added angst to the previous negotiations, which got little accomplished.

The talks were held in secret, and important people on both sides were not clued in. Several owners and league officials had no knowledge of the talks. Same on the players’ side. That was designed to limit leaks and to keep the pre-meeting rhetoric to a minimum so progress could be made.

The composition of the two sides that did meet was significant. For the NFL, it was commissioner Roger Goodell, and owners Robert Kraft (Patriots), Jerry Jones (Cowboys), John Mara (Giants), Art Rooney (Steelers), and Jerry Richardson (Panthers). For the players, NFLPA executive director DeMaurice Smith was there, as were players Kevin Mawae, Mike Vrabel, Jeff Saturday, Domonique Foxworth, and Tony Richardson.

Boylan was also there but was more of a spectator. This meeting was about, finally, the sides talking face to face.

That the talks took place with litigation looming indicates that the posturing is over, and that was a must for any deal to happen.

It’s important to note that a settlement is now the apparent course of resolution, not the players dropping their antitrust lawsuit. That would be a concession on the part of the owners, who had said they had “no interest’’ in settlement discussions. Settling the case would keep the next collective bargaining agreement under the purview of the court, as it has been since 1993. The NFL wanted the CBA to be handled by independent third-party arbiters.

The NFLPA is giving things back as well, including recertification when a deal is reached.

A settlement would be of a “global’’ variety, meaning all pending litigation — from the antitrust suit and the preliminary injunction case, to collusion and the Doty decision — would be settled at the same time. It also means the settlement will be very complex.

“This is easily the biggest step since March 11 [when the NFLPA decertified],’’ said a source close to the negotiations. “It’s a very, very important step but it does not necessarily mean that there’s going to be instantaneous progress. We’re on the right track, but there’s a ways to go.’’

Greg A. Bedard can be reached at [email protected]. Follow him on Twitter @greg_a_bedard.
© Copyright 2011 Globe Newspaper Company.

[Greg Ambrosius]

Now to the business at hand: The court hearing in St. Louis. Here is Andrew Brandt's primer for today. I think the players believe they can win this 2-1, but hopefully they will spend more time negotiating after today than waiting for this decision:

http://www.nationalfootballpost.com/Foo ... rived.html

As disconcerting as it is to read this, we have reached the most important date on the NFL Calendar in 2011. The bad news is that it occurs in a courtroom. The good news is that it may be the last of Courtroom football we see – we hope – as the ruling in this case may direct the losing party towards purposeful negotiations of a new collective bargaining agreement. And the better news is those negotiations may have already begun, with news of a "secret meeting" in Chicago with decision-makers for both sides talking about their differences towards, hopefully, some common ground. Against this hopeful -- although early -- backdrop, let's look at the big day in Court today.

Sequence of Arguments at Hearing

Oral arguments will begin today at 10:00 AM Central time in St. Louis in front of a three-member panel of the Eighth Circuit Court of Appeals (the Court). Each side is allotted 30 minutes, with the Owners opening, the Players responding, and the Owners given extra time to reply to Players' arguments. Based upon what happened at the preliminary injunction hearing in front of Judge Nelson on April 6th, my feeling is that both sides will go longer than 30 minutes. With exhaustive briefs having been filed, the judges will have plenty of questions directed at these two parties, and the oral arguments will be heavily controlled by the call of these questions, rather than the attorneys.

Quarterback for the Players

The key player in today’s hearing may be Theodore Olson, the former solicitor general under George W. Bush. Today will be Olson's show; he represents the change agent for the Players. He has served as private counsel to two Presidents, Ronald Reagan and George W. Bush, and was Solicitor General from 2001-2004. He has argued 58 cases to the US Supreme Court, including the two Bush v. Gore cases, and has prevailed in 75% of those 58 cases. His staunch Republican background cannot be discounted in front of two Republican appointees that have ruled against the Players twice.

New Voice for Owners as well

The Owners will also have a new voice representing their interests. Paul Clement – who succeeded Olson as Bush’s solicitor general in 2005 – will argue for the Owners. Clement is more reserved than his friend Olson. His brief to the Court was persuasive. Clement is known for his upstanding legal ethics. Earlier this year, when his law firm backed out of representing the U.S. House of Representatives in defending the Defense of Marriage Act, Clement quit in protest.

Let’s look at what may happen:

Why the Court would rule for the Players

(1) Although the Court voted 2-1 in favor of the Owners, the dissenting judge, Judge Bye, was emphatic in supporting the Players in both the temporary and permanent stays. Through their written brief and oral arguments, the Players need only persuade one of the two other judges to switch sides and rule in their favor.

(2) The Court might completely reject the Owners’ Norris-LaGuardia Act arguments, reasoning that the Owners' interpretation turns the Act completely 180 degrees, and noting that no court has ever held that the Act applies to employer lockouts. Such a ruling would severely cripple the Owners’ arguments and result in the Court upholding Judge Nelson's injunction, thereby ending the NFL lockout pending further appeal.

(3) The Court could also find that the NFLPA's decertification was valid. In doing so, the Players would stand a better 'likelihood of success on the merits' of their underlying antitrust claim, one of the most important factors of the preliminary injunction test.

Why the Court would rule for the Owners

(1) The Court waited seventeen days between issuing a temporary stay and ruling on the permanent stay. In the event the Court truly believed that the Players were suffering irreparable harm, logic would dictate that the permanent stay ruling would have come sooner. Also, in their order granting the permanent stay, Judges Benton and Colloton may have tipped their hand, expressing that they "have serious doubts that the district court had jurisdiction to enjoin the League's lockout."

(2) The Court could find that this case does in fact "involve or grow out of a labor dispute" and that the Act applies. This would prohibit the District Court of Minnesota (Judge Nelson) from issuing an injunction.

(3) Even if the Act does not apply, the Court could rule that Judge Nelson must delay issuing an injunction until she receives detailed findings from the NLRB, which is in the process – however slowly – of determining whether or not the NFLPA's decertification was valid and effective.

Wildcard Ruling

Courts typically are inclined to rule narrowly on the issue(s) presented, fearing that a broad ruling may lead to unforeseen consequences. However, there is a slight chance that the Court could not only agree with the Owners’ arguments – as they did on the stay – but also go further and grant the Owners’ a home run at this stage.

The Court could rule that the nonstatutory labor exemption is still intact and nullify the entire basis for the lawsuit by the Players against the Owners. In Brown v. Pro Football, the Supreme Court held that the nonstatutory labor exemption – protecting the NFL against antitrust claims – continues to apply "sufficiently distant in time and in circumstances" beyond the collective bargaining process, opening the door for the Eighth Circuit to possibly conclude that the NFLPA's March 11 decertification was not sufficiently distant in time or circumstances, since it occurred within a couple hours of a collective bargaining session.

This expansive holding would seriously impair Brady v. NFL and send a message to Judge Nelson that there is no need to go forward at this point in time. If the Court is inclined to ultimately reverse the underlying antitrust claim at some point down the road (which could be a year or two), the appellate judges may feel that it is a waste of judicial resources for Judge Nelson to begin the trial process – order discovery, accommodate pretrial motions, etc. – on the Brady antitrust lawsuit.

My sense is the Court will rule narrowly, but the possibility does exist for the above scenario.

Likely Timeframe

Judge Nelson took exactly three weeks from the day of oral argument to rule on the preliminary injunction. We can expect to see a similar timeframe; expect a ruling in late June.

En Banc Hearing and Supreme Court

The losing party is able to request a rehearing of the matter in front of the full panel of 11 judges of the Eighth Circuit Court of Appeals – this is known as an "en banc rehearing." The losing party would first need to convince a majority of the justices (6 of 11) to grant the rehearing. En banc rehearings are not granted lightly, and it is unlikely here. Even if granted, it has the potential to disrupt the start of the NFL season, as the en banc process could take us into October.

The losing party can also apply to the U.S. Supreme Court, although landing on the Supreme Court's docket would be even more difficult than gaining an en banc rehearing. Even if successful, the case would not be heard until sometime deep into 2012.

Prediction

Although it is extremely difficult to handicap this sort of proceeding, the language from the Court's stay order – stating that they have "serious doubts" about Judge Nelson's ability to block the lockout – does present an initial obstacle for the Players. Right now, the Owners appear to have the slight advantage, and need only maintain the status quo.

The Players, on the other hand, are tasked with swaying one judge to rule in their favor. The Players – in their legal brief – have made clear that if the Court sides with the Owners' Norris-LaGuardia Act arguments, it contradicts 80 years of case law and also ignores the legislative purpose of the Act. This line of reasoning may persuade one judge.

And, of course, negotiations without the lawyers will continue, perhaps as soon as early next week. While football stays dark, the business/law of football keeps churning.

Going into the hearing -- which I am doing this morning – I would give the Owners an edge. However, to bring it back to the field, “that’s why they play the game (have the hearing?)”.

Stay tuned.

[Greg Ambrosius]

Constant Tweets from Darren Rovell and Andrew Brandt from the St. Louis court are very interesting. I like Darren's first one as court got underway:

"1st 3 minutes of the NFL's arguments to the court. Haven't understood anything. Worse than Shakespeare."

From Andrew Brandt, which shows the owners aren't afraid to cancel the NFL season: "Questions to Clement on how long a limit to a time period on labor dispute. Clement suggests a year. Lockout tool to get to CBA."

From Brandt: "Most questioning coming from Judge Benton, one of two favoring Owners on stays."

From Brandt: "Judge Benton continues to hit home on how long a 'labor exemption' lasts. Answer is at least a business cycle."

From Brandt, citing NFL lawyers: ""This wolf comes as a wolf." A labor matter, not an antitrust lawsuit."

NFL lawyers used up their 30 minutes, although court has set aside 5 minutes later for more questions. Brandt now with NFLPA's lawyer Ted Olson: "Olson up, starts right out saying decertification valid, this is antitrust case."

From Brandt, citing Olson: ""Who wanted union to be reformed? The League 'insisted' on it. Not a flip of the switch." Players made a choice."

From Brandt: "Judge Colloton wants to get to whether this is a labor dispute or not. Olson sticking with antitrust arguments."

Darren Rovell's latest tweet: "If the back & forth is any indication, and it was in the Minny court, the NFL owners are winning this appeal. Back to square 1"

Brandt: "Two judges who sided with Owners in stays asking many questions to Olson. Judge Bye who ruled for Players has not said a word."

Brandt: "As the questioning was more strident towards Owners w Judge Nelson, the converse us true here today."

Brandt: 'Olson bringing up the 800 potential free agents - no relationship to employers right now."

Not a good sign for Players. Brandt: "Olson getting peppered about collapse of bargaining leading to decertification. "sufficiently distant in time" key phrase for Judges."

Brandt: "Olson: "Period of protection from labor laws is over!" Not sure two judges agree."

Brandt: "Olson brings up the TV case before Doty, word "unconscionable" thrown in."

Brandt: "Olson in last few minutes hammering home point of union being entitled to decertify. The union is dead. Antitrust law should apply."

Brandt: "Clement up for rebuttal. Back to issue of length of labor exemption to 6 mths minimum."

Brandt: "Clement harping on multiple mentions in N-L Act of "labor dispute." it protects employers as it does employees."

From Darren: "If these appeals court judges cared about NFL fans, they'd rule right now. So we could either get back to negotiating or impose new rules"

Brandt: "Concluding remarks: render decision in "due course." won't be hurt if they "settle the case" good comment!!"

Brandt: "Judge Bye concludes that parties should negotiate as a ruling will be something neither side will like. Hope it spurs more directed talks."

Rovell: "DeMaurice Smith had no comment on anything that happened in court today. Never seen him before a mic he didn't like"

[ June 03, 2011, 12:17 PM: Message edited by: Greg Ambrosius ]

[Greg Ambrosius]

Well, now let's see what the pundits say. Any thoughts from the NFFC crowd?

[Greg Ambrosius]

Pretty interesting: The panel has twice decided to keep the lockout in place pending the full appeal. It did not issue an immediate decision and Judge Kermit Bye smiled as he told the attorneys before they left the courtroom: "We wouldn't be all that hurt if you go out and settle that case."