11th Cir. finds healthcare mandate unconstitutional

From Politico:

The 11th Circuit Court of Appeals on Friday ruled that the health care reform law’s requirement that nearly all Americans buy insurance is unconstitutional, a striking blow to the legislation that increases the odds the Supreme Court will choose to review the law.

The panel partially upheld a ruling issued in January by Judge Roger Vinson, who struck down the entire health reform law. However, the 11th Circuit said that the rest of the legislation can stand even if the mandate is unconstitutional.

The panel also said that the law’s expansion of Medicaid is constitutional, ruling against the states.

Read more here.

Debt bill passes the House

Last major roadblock cleared. From Politico:

With the government running on fumes, Congress and the White House moved quickly Monday toward expanding Treasury’s borrowing authority and putting in motion an ambitious plan promising between $2.1 trillion to $2.4 trillion in deficit reduction over the next 10 years.The hastily-written 74-page bill—never reviewed by a legislative committee and rushed to the floor— cleared the House on a 269-161 vote late Monday. The Senate is poised to act Tuesday—the very day of the threatened default. But passage seems all but certain given the margin in the House and unified support of Senate leaders of both parties.

Read more here.

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UPDATE: Senate passes, Pres. Obama signs debt ceiling bill to avoid default.

No debt vote yet

Even though party leaders have arrived at a "deal," voting has not yet occurred in the House or Senate on the measure. While the House is scheduled to vote tonight on the bill (after markets close, lest we forget the TARP fiasco) there are signs that members on both sides are not playing ball:

House Minority Leader Nancy Pelosi, D-Calif., said, "You'll have to ask the speaker. He has the majority." Democrats met for over two hours on the debt ceiling compromise Monday afternoon in the Capitol. Vice President Joe Biden offered a personal appeal to lawmakers to support it—Democratic support is expected to be crucial to getting it over the goal line.

Minority Leader Pelosi's comment, made at 2:35 p.m., likely indicates strong push-back from the House Progressive Caucus. Let's hope this gets done soon so we can all move on happily--at least until after 2012 when this nonsense likely comes up again. For a play-by-play on the debt ceiling negotiations, see the National Journal.

Senate cancels debt bill vote, progress ensues

This might be the first glimmer of real hope we've seen for weeks. From The New York Times:

After a tense day of Congressional floor fights and angry exchanges, Senator Harry Reid, the majority leader, called off a planned showdown vote set for after midnight, but said he would convene the Senate at noon on Sunday for a vote an hour later. He said he wanted to give the new negotiations a chance to produce a plan to raise the federal debt limit in exchange for spending cuts and the creation of a new Congressional committee that would try to assemble a long-range deficit-cutting proposal.

“There are many elements to be finalized and there is still a distance to go before an arrangement can be completed,” said Mr. Reid, who just a few hours earlier had played down talk of any agreement. “But I believe we should give everyone as much room as possible to do their work.”

Mr. Reid’s announcement set off an almost audible sigh of relief on Capitol Hill, where lawmakers and their aides had been bracing for an overnight clash over the debt following a day that had seen a heated House vote and lawmakers trudging from office to office in search of an answer to the impasse.

The first indication off a softening of the hard lines that have marked weeks of partisan wrangling over the debt limit came in the afternoon when the two leading Congressional Republicans announced that they had reopened fiscal talks with the White House and expected their last-ditch drive to produce a compromise.

Following the House’s sharp rejection of a proposal by Mr. Reid to raise the debt limit and cut spending, Senator Mitch McConnell of Kentucky, the Republican leader and a linchpin in efforts to reach a deal, said he and Speaker John A. Boehner were “now fully engaged” in efforts with the White House to find a resolution that would tie an increase in the debt limit to spending cuts and other conditions.

“I’m confident and optimistic that we’re going to get an agreement in the very near future and resolve this crisis in the best interests of the American people,” said Mr. McConnell, who noted he was personally talking to both Mr. Obama and Vice President Joseph R. Biden Jr., a favorite partner in past negotiations.

Despite today's theatrics, a final debt deal is (apparently) in the works. ABC News has learned the details of a "tentative deal" reached by Republicans and the White House. It would be structured as follows: (1) $2.8 trillion in a debt ceiling increase (through 2012); (2) immediate cuts of $1 trillion; (3) vote on the Balanced Budget Amendment; (4) a committee to recommend (roughly) $1.8 trillion in further cuts to match (dollar for dollar) the debt increase; and (5) a trigger mechanism to enact "across-the-board cuts," including cuts to Defense and Medicare. Let's be cautiously optimistic.

Pres. Obama must now use 14th Amendment

You read that correctly. Even though roughly three days remain before a first ever U.S. default, President Obama must now unilaterally invoke the 14th Amendment to raise the debt ceiling on his own--and without Congressional approval. The idea of using the 14th Amendment is not new. Others, including former President Bill Clinton, have advocated this approach. The argument is two-fold. Textually, the Clause 4 of the 14th Amendment says that "the validity of the public debt … shall not be questioned." Practically, as law Profs. Posner and Vermeule point out, "[t]he president has the power during crises to take actions that are necessary to protect the country."

Under either argument, one central truth remains: the current self-inflicted crisis will be averted. However, we are now only days away from a catastrophe that has significantly decreased the confidence of global investors in our economy and governing ability. For that reason, President Obama has the obligation to act alone. If President Obama bypasses Congress on this issue, he will provide a signal to investors and other nations that, regardless of future spending fights, the United States has a fail-safe mechanism to ensure that it meets its bills on time: the Constitution.

There will, of course, be external risks associated with this approach--i.e., the courts could get involved, and reject the administration's arguments. However, as many legal commentators opine, the judiciary is unlikely to inject itself into this hyper-political battle. I find it hard to believe that a judge would want the threat of a national default hanging on his or her personal interpretation of the Constitution. Restoring confidence is absolutely imperative in light of the way this crisis has played out. The only way to do that now is to provide the world with an indication that the United States will never default on its obligations.

The NFL Lockout Is Over!

The New York Times -- via the AP -- is reporting that the players have approved a deal to end the NFL lockout. The players' vote comes a few days after the owners', and basically wraps things up. The players have unanimously recommended that the named plaintiffs in Brady v. NFL accept the deal, and that the union be re-constituted. All of this will happen by August 4th.

So there we have it, after 4 1/2 months. If it's this hard to get a $9 billion deal done just for football, what does that say about the $14.3 trillion deal we need to reach on the debt ceiling...?

What's the Hold Up?

As you probably know by now, the NFL owners approved a new collective bargaining agreement that would bring an end to the lockout. Initial reports were that the players would vote this morning. That seems not to be the case; the players want more time to digest exactly what's in the new agreement. It still seems like the players will vote today. But the main takeaway here is that the process is going to take time.

Earlier, I wrote that this is an unusual situation in which the employer wants a union but the employees don't. Expect that same issue to crop up again. The owners want the NFLPA to immediately reconstitute as a union, with e-mail signatures from players so that the process could be over in minutes. The players say that the process must be thorough and deliberate; they want owners to reopen team facilities so that players can sign union cards there. This all goes to one of the initial issues in the case: whether the union's disclaimer was a "sham" or not. If the NFLPA is a "union" that pops in and out of existence almost on a whim, you can expect that, ten years from now, the owners will point to that fact to argue that any future decertification is also a "sham". For that same reason, the players want to act deliberately.

And of course various minor issues, like player conduct, safety, etc., will be collectively bargained after the new CBA is in place. These should not hold up a deal. There is also the outside chance that some of the lead plaintiffs in Brady v. NFL will get some special consideration, though I think that's unlikely at this point.

All in all, I think we are in good position to wrap this up in the next couple of days. I think the players grumbling about the process is more posturing than anything else; they don't want to be seen as rolling over immediately after the owners' vote. I would guess that we have a deal very soon.

Why Isn't the NFL Lockout Over Yet?

(Update, 7pm EDT: The owners have approved the CBA and the players are set to have a conference call at 8am tomorrow morning. Substantive details about the CBA below.)

Over the last few weeks, we've been told repeatedly that a deal to resolve the NFL lockout is just around the corner. For a while, we were looking forward to July 4th. Last week, I had a source tell me that a deal would be approved on Wednesday, or Sunday at the latest. Then we thought the players would vote to approve a deal yesterday, and that the owners would do so today. As of now (1:30 pm EDT) the owners have not yet voted. So what are the major stumbling blocks here?

1) There is a lawsuit out there! The players and owners might agree to a new collective bargaining agreement, but Brady v. NFL still looms. There aren't any court dates in the immediate future, but the lawsuit has to be resolved somehow. Recently, we're hearing reports that Logan Mankins and Vincent Jackson (two other named plaintiffs in the class action) want payouts of $10 million each to drop their claims. I think such a bonanza is unlikely. But regardless of any "bonus" for the two of them, the lawsuit needs to be settled, separate and apart from the CBA.

2) What happens to the NFLPA? Remember, NFLPA has been operating as a trade association, not a union, since March. And, if you believe Gene Upshaw, the former head of the NFLPA, the NFLPA only existed as a "union" after the last lawsuit because the owners insisted on it. They players would prefer to remain a "trade association" so that they can have the leverage of a future antitrust lawsuit against the owners. (Remember, they lost on appeal because they had been a union.) For similar reasons, the owners will want to force the players to reconstitute the union. I suspect the union will re-form, but that there will be language that allows them to "decertify" or "disclaim interest" in a future labor fight.

3) Voting is messy. 24 of 32 owners and 50%+1 of the the 1900-or-so players will need to approve the deal. Keeping the owners in line should be fairly easy. Keeping tabs on almost 2000 players, dispersed around the country, is going to be harder. There is nothing to suggest that there will be a mass defection from among the players' ranks, but we have seen before that things don't go as planned.

4) Dotting is and crossing ts. There are still details to work out, such as the specifics of the franchise tag, the particulars of how the players' union will re-form, the looming lawsuit regarding TV revenues, whether the settlement of the lawsuits would be by "consent decree" -- meaning that the courts have continued oversight of the case -- and so on. These details are not, in and of themselves, major, but my guess is that the two sides will try to score minor points with these last few issues.

I think we're closer to a deal than we've been in a long time. I'm particularly glad that the Eighth Circuit's ruling seems not to have derailed talks. But there is definitely work left to get done.

***

UPDATE: As noted above, the owners approved the CBA. The vote was 31-0, with the Oakland Raiders abstaining. (Really?) Here are some key provisions of the new CBA, as reported by ESPN:

• This would be a ten-year deal, running through the end of the 2020 season. The current league year would begin next week, although I've seen reports that team facilities would be open as early as Saturday. (Note, the owners' vote is contingent on the union re-forming and approving the deal.)

• You might recall that the split of total revenues was an issue. The players are now going to get a smaller percentage (48% in early years, as opposed to the mid-50s), but the owners will not get a cut off the top for expenses. (Last year they took $1bn of the $9bn to cover expenses, and divided the rest.)

• The salary cap will start at $120 million with a minimum of $106.8M

• Veterans earn free agency after fourth season

• Rookie contracts will start lower, be subject to a cap, and will last for four years (with a team option for the fifth year).

• Training camp and OTAs are scaled back.

As to the franchise tag, the issue for players like Manning was that they had been franchised once already. The players wanted a rule that a player could be franchised only once in his career. It doesn't look like that's part of the final deal.

By the way, in fairness, I should say that Logan Mankin's agent has said that he is not holding up a deal and that reports to the contrary are incorrect. Vincent Jackson, too, is denying such reports. I'm not sure where those rumors got started, but I'm happy to set the record straight.

Five Practical Implications of the NFL Lockout Ruling

As sports fans and legal nerds try to make sense of the Eighth Circuit's ruling earlier today regarding the NFL Lockout, here are a few things to keep in mind:

1) This is a limited decision. The owners raised several arguments in their briefs. The Eighth Circuit only ruled on one, holding that the lower court did not have jurisdiction to lift the lockout as to players under contract. The Appeals Court suggested that the lockout could be invalidated as to rookies and free agents, but the issue was not yet resolved (see #2)

2) Rookies and free agents cannot start signing contracts. They are still locked out. The Eighth Circuit said, in effect, the following: "The lockout might be invalid as to rookies and free agents, but the lower court has to have a full hearing on this issue." So until and unless the lower court holds a hearing and rules that the lockout is invalid, even rookies and free agents are locked out (unless, of course, the owners voluntarily end the lockout).

[By the way, what would it mean if they could sign? The Eighth Circuit has said that players under contract could be locked out. So a team could sign a free agent, and then immediately lock him out! I suppose this might give teams some certainty, knowing they've signed a particular free agent, but it is sort of a crazy outcome.]

3) The players aren't completely out of options. The Eighth Circuit said that the players are not entitled to an injunction, that is, an order lifting the lockout. But they can still go forward with their antitrust lawsuit, which might entitle them to tens or hundreds of millions of dollars in damages. And in theory, they could appeal the Eighth Circuit's ruling, either by way of an "en banc" appeal to the full Eighth Circuit (this decision was made by a three-judge panel) or by an appeal to the U.S. Supreme Court. But that would stretch the litigation onward for months. As to the negotiations...

4) The balance of power has shifted. Over the last week or two, we've been hearing that the League has been meeting with players' representatives and getting close to a deal. The Eighth Circuit's ruling drops a bomb in the middle of those talks. The biggest question I have is whether the owners will try to "claw back" some of the concessions they've made (such as splitting revenue almost 50-50) in light of their legal win today. Still,

5) The best hope for football is a negotiated deal. Yes, the players might take this up to the Supreme Court (and maybe even win). Yes, the owners might have to lift the lockout for rookies only. Yes, the players might win hundreds of millions of dollars in an antitrust suit.

But all of these options take time--lots of time. The best hope for us fans is that the two sides treat today's ruling as if it never happened and keep going with their negotiations. We've heard that they're close. If, instead of pushing across the finish line, they start taking a hard stance in light of the ruling, we will probably be farther from a deal than we've been for about the last three weeks.

BREAKING: Huge win for NFL Owners; lockout continues

The Eighth Circuit has just ruled that the Norris-LaGuardia Act prohibits federal courts of entering injunctions in labor disputes. As I've discussed before, the owners have said that this doctrine means that Judge Nelson's order issuing an injunction against the lockout--holding in effect that the lockout was invalid--should be null and void. Today, the Eighth Circuit agreed with the owners, handing them a huge win.

Some people had suggested that the Court would "stand down" while mediated talks were ongoing, particularly because those talks seemed to be making good progress. (At least at the district court level, Chief Magistrate Judge Boylan, who has been overseeing discussions, has entered orders on the docket that are sealed (i.e., not public), which I assume relate to the status of the confidential talks.) Today's decision means (1) the lockout can continue and (2) the balance of power has shifted dramatically in the negotiations. We'll see whether this is seen as a setback by the players, and if the owners try to "claw back" some of their previous concessions in light of today's ruling.

Updates to follow...

UPDATE 7/8/2011, 11 am: As expected, this decision broke down among 2-1 lines, just like every other Eighth Circuit decision to date. The majority held that the Norris-LaGuardia Act, which generally prohibits injunctions in the context of labor disputes, applied here, and so Judge Nelson did not have jurisdiction to issue an injunction lifting the lockout. The Court notably did not reach the other arguments raised by the NFL. This means, for example, that the League might still be liable for violations of the antitrust laws and be forced to pay money damages. (I can't, however, imagine that this will go on for that long.)

The majority relied on Section 4(a) of the Act, which prohibits injunctions against "remain[ing] in any relation of employment". The Appeals Court ruled that players were in a "relation of employment" with owners, the owners decided not to "remain" in that relationship any longer, and so the Act prohibited an injunction. But the Court also held that this rule does not apply to free agents and rookies. Because free agents and rookies are not currently employed, they cannot "remain" in a state of employment. Thus, the lockout could be potentially invalid regarding free agents and rookies. However, Judge Nelson did not hear from live witnesses on this point (she only took paper submissions), and the Appeals Court sent the matter back for a hearing. In theory, Judge Nelson could rule that the lockout is invalid as to free agents and rookies, and we could have a bizarre situation where veterans are locked out but rookies and free agents are not.

Later today I'll explore some of the practical implications of this decision.

Where Do We Stand with the NFL Lockout?

Sorry for the delay in posting -- I've been on vacation in beautiful Portugal -- but I'm back now. So here is a little roundup of where things stand with regard to the NFL Lockout.

1) The players filed their brief in the Eighth Circuit. I won't go into much detail here, because the arguments are pretty similar to what they've been raising all along. A few people I've been in touch with think that this brief is very well written and persuasive, and that may well be true, but as one friend put it, it's mostly a matter of "packaging". The legal issues haven't changed, and the players (and owners) have been briefing these issues in one way or another for months. No one has said anything they haven't said before. (The players have pitched their argument in light of the Eighth Circuit's decision granting a stay, but the issues are fundamentally the same.) The owners filed a reply brief, but again, nothing earth-shattering.

2) The legal issues haven't changed. At the end of the day, the question is whether the union's decertification in March was a sham. The Norris-LaGuardia Act says that a court cannot issue an injunction -- for example, to lift the lockout -- when there is a conflict that "grow[s] out of a labor dispute". The owners say this lawsuit clearly grows out of a labor dispute, namely, the failed negotiations over a new collective bargaining agreement. The players say there can be no labor dispute when there is no union. This divide runs through all of the arguments: If the decertification was valid, then the players almost certainly win. If not, they almost certainly lose.

3) We will see more heat than light on Friday On Friday, legal nerds will see two of the nation's greatest appellate lawyers argue a complicated case involving antitrust and labor law. But that won't tell us anything about how the Court will rule. Even on an expedited schedule, a decision could take weeks. It is very hard to gauge how judges will rule based on oral arguments, and judges almost never rule from the bench in an appeal like this. That said, we know where to focus. Judge Bye (the Democratic appointee) has consistently been on the players' side during the appeals process. He would have denied the temporary stay, and he would have denied the longer stay pending appeal, meaning he would have let Judge Nelson's order lifting the lockout stand. So we can safely chalk up one vote for the players. The players will have to swing one of the other two judges (both Republican appointees) to their side. Which one? We don't know -- the majority opinions (from which Judge Bye dissented) were unsigned.

4) The outsiders have started weighing in. Amicus curiae -- "friend of the court" -- briefs have been pouring in. Other major players' unions have filed papers supporting the players; the Chamber of Commerce supported the owners. Interestingly, the coaches have filed a brief supporting the players. One court decision I read described amicus briefs as briefs that anyone is allowed to file and no one is required to read. So I wouldn't put too much weight on these briefs.

5) Judge Doty is the wild card. If the owners can expect a receptive audience at the Eighth Circuit, the players have one with Judge Doty. Remember, Judge Doty held a hearing a few weeks ago to determine how much money the players should get because (he held) the owners negotiated a favorable deal for themselves with regard to certain TV contracts. If Judge Doty awards the players hundreds of millions of dollars, the landscape could shift dramatically. The players could offer to "give up" this money in exchange for concessions with regard to the lockout. By contrast, if the Eight Circuit rules for the owners, and Judge Doty's decisions hasn't come out yet (or if he awards the players very little money), the chips will be stacked strongly against the players.

***

Finally, remember: just because the NFL is on hold doesn't mean that football is! NFL football is exciting, engaging, and just plain fun. But if you're really into football, don't forget that football, even professional football, doesn't stop with the NFL. Arena and other leagues are gearing up around the country. College teams are putting pieces into place, with workouts and combines. Semipro teams nationwide play football twelve months out of the year. In New York, a youth football team (the Bronx Colts) and a semipro team (the New York Spartans) are holding a combine for players of all ages on Saturday, followed by a (free!) prime-time semipro football game under the lights just across the street from Yankee Stadium. (Disclosure: I'm the offensive coordinator of the Spartans.) All around the country, players and coaches young and old are in football mode. If any good will come of the lockout, perhaps it will be that some of these men (and women!) who work hard, simply for the love of the game and with little to no financial recompense, will get a bit of the spotlight.

So with that, my shameless plug: if you're in or around New York, come check out the Spartans take on the NYC Gators -- for free -- 7:30 p.m. Saturday night at Macombs Dam Park, just across from Yankee Stadium!

BREAKING: 8th Circuit Grants Stay Pending Appeal; Owners "Likely to Succeed"

About an hour ago, the Eighth Circuit issued its long-awaited decision regarding the NFL Lockout. The owners have won their stay pending appeal -- in a 2-1 decision -- and it's a big win. I will parse the decision and fill in some details shortly.

UPDATE: The NFL -- as I discussed previously -- raised four points in its brief. The first of these arguments was that the Norris-LaGuardia Act divested the federal courts of jurisdiction to hear the case at all. Judge Nelson rejected this argument, but it looks like the League will find a more receptive audience on appeal. The Court wrote today, "In sum, we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits."

So what does this mean for football? In the short term, nothing. The lockout will continue; free agent signings will not begin; hundreds of undrafted rookies languish in a gray area between college and the pros. However, we will see a significant shift of leverage away from the owners. The Appeals Court has said that the owners are likely to prevail on their appeal. The question now for the players is whether they want to roll the dice in court in June, or if they are willing to settle on what they see as unfavorable terms. If the players are willing to give up ground, we may see a pretty swift resolution of the entire case. However, if they are going to dig in their heels, then we may be in for a long ride.

What does this mean as a legal matter? The Eighth Circuit's decision is notable because it focuses the scope of the argument on appeal. To grant the stay, the Court had to find that the League was likely to prevail -- but it only had to be likely to prevail on one of its claims, not necessarily all of its claims. As a result, the Court (having found that the League was likely to prevail on the Norris-LaGuardia Act theory) did not discuss any of the other theories. The players will have to convince the Court on June 3 that the Act does not apply.

The next step for the Court was considering "irreparable harm" to the two sides. The Court concluded that both sides face serious harm, whether the lockout is in place or not, and thus the scales do not tip clearly in favor of the players, as the District Court wrote. Although it is not entirely clear from the discussion, the Court suggests that, because it is a "close call", it will allow the status quo to remain in place.

Judge Bye dissented, as he did before (with regard to the temporary stay). He wrote that the harm to the players was much more significant, and reiterated what he wrote earlier -- that a stay pending appeal is an extraordinary remedy and should not be granted absent special circumstances. Presumably Judge Bye will vote in favor of the players on June 3. But the players' attorneys will have their work cut out for them with the other two judges.

What is the next step? The appeal will be argued on June 3. Normally, an opinion might take months to issue, but the Court implied that it would decide the appeal during the off-season. And with the legal issues pretty well briefed and reviewed by now, we could see a decision within weeks of argument.

Do we all really have to be lawyers?

I recently received an interesting question from one of my 2L colleagues: "Do I really want or need to practice law?" Naturally, the first thing that came out of my mouth, "Why on earth would you have spent so much time going through the essential motions only to end up doing something else?" But, upon further reflection, I realize that I may have been slightly narrow-minded. Maybe law students, particularly those who come into law school just because it is the "next best thing to do," need a greater amount of guidance from career counseling offices to navigate the ever-changing and dramatically complex job landscape. Let me explain.

First, there are other "career options" that are quite obvious--eg, public service, non-legal advocacy work, etc. It is obviously not uncommon for politicians to be lawyers, for example (our president is one). But there are many non-obvious career paths for someone who has gone through the intellectual quest that is law school, and in my mind, career services offices ought to expand their knowledge of these areas in order to help students. For instance, one might consider business or entrepreneurship. I did a fairly quick google search for what appears to be dozens of available positions in this field, many of which do not require any special degree other than "some graduate level work." Why aren't students looking at these jobs?

I understand the position of others (including some who write for this blog) who opine that law schools should attempt to narrow the field of applicants, and tailor curriculum in a manner sufficient to more adequately prepare students for legal practice. All other things equal, I would agree. But legal education is a business (a big business) that is expanding and not going away any time soon. It is driven by rankings, and powered by the federal government's continual willingness to foot the bill for thousands of students who have about as much a chance of paying it back within three decades as Gigli does of becoming a cult classic.

So why not change the approach? A J.D. should be a general degree like an MBA, and schools should try to incorporate a wider cross-disclipinary focus into the basic curriculum. Good idea? Mabye, maybe not? Let's hear your thoughts.

NFL Lockout, Day 59: What's New?

Today we're in the middle of Day 59 of the NFL Lockout, which started on March 12. So where do things stand today? The short answer: the status quo continues, as the Eighth Circuit has not yet ruled. (There is a minor, non-stay-related, update below)

As I explained last week, both the owners and players share the responsibility for the current state of affairs. And because things are in limbo right now, I don't expect a resolution in the next couple of days -- I think next week is the best hope for us fans -- as the legal process continues to wind on.

I'm going to start by discussing the football implications of where we stand. Further on, I'll go into a little more depth on the legal posture of the case. Law nerds can jump ahead.

One minor update from when this was first posted: Late this afternoon, the "NFL Players' Reserve", an entity purporting to represent entering rookies, filed a motion to intervene in the appeal as a defendant, i.e., on the owners' side. Although this may seem significant at first blush, I wouldn't read too much into it. First of all, I can't find any reference to the NFLPR on the Internet. Secondly, the brief is, well, brief -- only 7 pages -- it never explains exactly what players the "pro se attorney" claims to represent. Finally, the complaint in Brady v. NFL includes Von Miller, an entering rookie, as a plaintiff, specifically so the suit could be on behalf of incoming rookies. The complaint explicitly mentions a "Rookie Subclass". (See, e.g., para. 25.) So, while the "NFLPR"'s motion to intervene sounds like a big deal, it probably won't change the landscape in any meaningful way.

Football Implications

1. Football is still going on. The owners' lockout means that the NFL's "league year" has not started. As a result, free agency has not begun; teams are not making trades, and so on. But that doesn't mean there is nothing going on. Several players are taking it upon themselves to organize workouts so that they can stay in football shape (although there is a question of exactly how useful these workouts are).
   
   
2. That doesn't mean it's business as usual. Perhaps those hardest hit are newly-drafted rookies, who have not been able to meet with team personnel, get into film study, access teams' medical and exercise facilities, etc. Particularly if the lockout stretches into the summer, I will be interested to see how this year's rookie class does. Each year, there are several rookies that are selected to the Pro Bowl. It wouldn't be surprising to me if there were few or no rookies selected this year.
   
   
3. There is a lot of litigation still in store. Who knows if it will all actually happen -- a settlement could wipe them all out -- but they are at least on the radar for now. On May 12, Judge Doty will hear arguments in a dispute involving TV revenues. Judge Doty has said that the owners are liable for damages; the question on Thursday will be exactly how much. A decision in that case could take a few weeks. Then, on Monday, the two sides will sit down for a mediation session in Minnesota -- the first time they will negotiate face to face since talks broke down on April 20. The players' brief in the Eighth Circuit appeal is due on May 20. The NHL filed a friend of the court brief on Monday in support of the owners. It will be interesting to see if the players have people in their corner as well.

Legal Posture

1. First, some procedural wrangling. On Monday, the owners filed their opening brief in the Eighth Circuit as to the merits of the underlying appeal. Remember, Judge Nelson issued a preliminary injunction, lifting the lockout, two weeks ago. The Eighth Circuit granted a "temporary stay" of that order on April 29, and that "temporary stay" is still in place. At the time, I wrote that the order would reinstate the lockout "only for a few days", while the Court decided whether to issue an actual "stay pending appeal" (which would last through the pendency of the appeal, and could potentially last for months). Clearly, I was wrong (though not alone in thinking as I did); no decision on the stay pending appeal has been issued and it is now almost two weeks after the temporary stay went into place.
   
   
2. The owners' brief says what you would expect. The owners make four main points in their appeal, and three of them would dismiss the case without reaching the merits. I find this to be an interesting tactic. Obviously, good lawyers raise all meritorious arguments. But of the 61-page brief, only the last nine or so pages address the preliminary injunction standard. The bulk of the owners' brief argues that the injunction should be vacated because (1) the Norris-LaGuardia Act, which prohibits injunctions against lockouts, applies here; (2) the Court should have deferred to the NLRB under the doctrine of "primary jurisdiction", because the owners have a pending complaint against the (now-disbanded) union before that agency; and (3) the nonstatutory labor exemption, which is a judicially-created doctrine that essentially prohibits antitrust actions by a union against an employer, applies. Note that all three of these arguments hinge on the union's decertification in March: if the decertification was valid, (1) and (3) are resolved in the players' favor. Point (2) turns on who has jurisdiction, but the owners' complaint before the agency is that the union's decertification is a sham, so that point hinges on the decertification issue as well. The owners -- who have suffered a string of legal defeats -- have pinned most of their hopes on this one aspect of the dispute. But it is not irrational; if the decertification was, in fact, a sham, the players' strategy falls apart.
   
   
3. Both sides were gearing up for litigation. The owners filed a complaint before the NLRB in March, arguing that the union was not negotiating in good faith, because it was making to disband and bring an antitrust action (which it did). But the owners had more at stake than just an ideal of good faith negotiation. The owners' complaint is what sets up Point (2) in their argument now -- that the federal courts should defer to the NLRB. Thus, just as the union was preparing to decertify so it could sue, the owners, I'm sure, filed this NLRB complaint to set up a future argument that the federal courts should stay out of the issue altogether.
   
   
4. The NHL has jumped in. The NHL's amicus brief is an interesting read (or skim). The NHL says, in effect, "If you let the District Court decision stand, all players' unions will decertify, or threaten to decertify, to extract concessions from owners". Now, enlisting allies to file amicus briefs is nothing new. But I was struck by the unusual positions people are taking in this case. Usually, we have employees alleging that employers are not negotiating in good faith. Usually, we have employers seeking to disband a union while employees fight to keep it in place. Usually, people representing employees think unions are a good thing. Here, the usual positions are exactly flipped.
   

Well that's where we stand today. A decision on the stay pending appeal could come at any time, so stay tuned.

Does Congress need law clerks?

Larry Kramer says yes after a conference on the proposition in April. I question the reasoning somewhat--doesn't Congress already have hundreds of attorneys employed by committees? Still, more clerks could give Congress bright "young lawyers [who] would spend a year researching and drafting laws before moving on to other legal endeavors." In a way, new law students offer a unique perspective to the drafting process. From Law.com:

"The legal profession as such is extremely court-centered," Kramer said. "One of the reasons for that, I think, is that court clerkships are the first job out the door for many graduates of the best law schools in the country. They move on and become leaders in the profession, and it's incredible the extent to which that first job shapes their thinking and understanding about the profession."

Advocates of congressional clerkships are dreaming big, but starting small. The Daniel Webster Congressional Clerkship Act of 2011, a bill introduced in April by U.S. Rep. Dan Lungren, R-Calif., and co-sponsored by U.S. Rep. Zoe Lofgren, D-Calif., would create a pilot program with 12 clerks. The Committee on Rules and Administration of the Senate and the House Committee on House Administration would select clerks from a centralized pool. Each chamber would get six clerks, to be divided between the parties.

The article further elaborates on the proposed pilot program:

Legislators and committee would compete for the clerks by offering the most attractive type of work. The clerks would choose where they want to spend their year.

Keeping the pilot program small will help ensure that competition for clerk spots is stiff, said Yale Law School professor Bill Eskridge, a leading authority on the legislative process. The plan will have succeeded, he said, if the congressional clerkships carry prestige equal to that accorded to federal court clerkships. The long-term plans calls for the program to expand after the pilot phase.

Supporters acknowledge that getting the bill passed during this legislative session may be difficult, given that Congress is in budget-cutting mode. The cost of the pilot program is relatively small -- about $1 million per year, with clerks earning the same salary as clerks in the U.S. District Court for the District of Columbia -- but the cost has been a hurdle in the past.

Senator Chuck Schumer has sponsored a sister bill in the Senate on the measure. It will be interesting to see how this shakes out.

Legal Scholarship for 100k

Given the high cost, one may well question whether the price is justified by the output. Personally, I appreciate legal scholarship for its own sake. Most people seem to have different expectations. Professor Neumann at Hofstra University School of Law, for example, seems to assess legal scholarship's worth by reference to citations:

Neumann also pointed to research suggesting that 43% of law review articles are never cited by anyone. "At least a third of these things have no value," he said. "Who is paying for that? Students who will graduate with six figures of debt."

While counting citations strikes me as an imperfect measure of "value," there can be little doubt that legal scholarship is failing to the extent its goal is to effectuate change in the law.

Speaking of football and antitrust...

The Blog of Legal Times reports that the Department of Justice has sent NCAA President Mark Emmert a letter asking him "to provide information about why college football does not use a playoff system to determine a national champion". The theory -- propounded most forcefully by Utah Attorney General Mark Shurtleff -- is that the BCS system is set up to favor large conferences at the expense of smaller and midlevel schools. Stay tuned to see how this plays out; after all, the BCS system has critics from President Obama on down. That being said, don't assume that the BCS setup is illegal; Michael McCann has written than an antitrust challenge will probably fail and that the BCS actually may enhance competition in several ways. In any case, I'll keep an eye on things and let you know how things develop.

BREAKING: Eighth Circuit Grants Expedited Appeal; No Word on Stay Pending Appeal

The Eighth Circuit this afternoon granted the NFL's motion for an expedited appeal, as expected. The NFL's brief is due May 9, the players' response is due May 20, and the NFL's reply is due May 26. The case will be argued before Judges Bye, Colloton and Benton June 3.

Much of this is not new or particularly earth-shattering. The one interesting point to note is that the three judges who will decide the appeal are the same ones who decided the temporary stay request. Although the panel granted the stay, 2-1, Judge Bye (the Democratic appointee) dissented, writing that the owners would suffer no irreparable harm if the lockout were lifted. It will be interesting to see how this plays out; the other two judges did not opine on the merits of the stay, writing simply that they were granting the stay so that they could study the papers more closely.

Five Things to Know about the NFL Lockout

Today has been a slow day in the NFL (and, of course, a very big day for other -- much more important -- news). In large part, it seems like people on all sides are recovering from the flurry of activity last week and over the weekend. So during this pause in the action, let's take stock of where things stand. Here are five things to know about the NFL Lockout: how we got here, what the two sides are saying, and what to expect down the road.

1. The Owners Forced the Issue. In 2006, the players and owners negotiated a collective-bargaining agreement. In 2008, the owners opted out of the CBA, because they felt like it was not adequately accounting for the increasing costs that owners faced. If the owners had not opted out of the CBA, we wouldn't be here today, becuase the 2006 CBA would have, by its terms, run through the 2012 season.

2. The Players Aren't Making Things Any Easier. The NFL Players' Association, almost from the beginning, was making preparations to "decertify". Antitrust law prevents competitors -- the 32 NFL clubs -- from acting together in an anticompetitve manner. So, for example, rules about the draft, free agency, the salary cap, etc., could potentially violate antitrust law. But a union cannot sue an employer for antitrust violations. The NFLPA "decertified" so that individual players could sue the NFL. (That's why the lawsuit is captioned "Brady v. NFL", rather than "NFLPA v. NFL".) Decertification typically takes place when employees are dissatisfied with a union. Here, decertification was more of a legal tactic.

3. The Legal Battle is Far From Over. When the union decertified, the owners imposed a lockout and the players sued. The players asked for, and got, a "preliminary injunction", which lifted the lockout. The owners asked the district court for a "stay" -- which would have put the ruling on hold pending appeal -- but the court denied it. The owners have asked the Appeals Court for a stay, and that request is pending. But in the meantime, the Appeals Court has issued a temporary stay. This reinstates the lockout temporarily, while the court decides if it should lift the lockout or allow it to remain in place while the owners challenge the underlying order granting a preliminary injunction. A decision on the preliminary injunction appeal will take weeks if not months. Judge Nelson's district court decision granting the injunction was a big step; the appeals court's decision on the stay will be the next big step.

4. Players Are Feeling the Effects of the Lockout Already. In their brief, the owners argue that we are in the NFL's offseason, so the players are not suffering "irreprable harm". This may be true from a legal standpoint; "irreparable harm" is a term of art. But it is undisputed that players -- particularly incoming rookies -- are feeling the effects of the lockout. For example, in the few days the lockout was "lifted" (between Judge Nelson's order and the Eighth Circuit's temporary stay) there was serious talk of a draft-day deal involving Philadelphia Eagles Quarterback Kevin Kolb. The Eagles likely could have gotten a first-round pick for Kolb, maybe even a top-10 pick. The Eagles reportedly have a first-round offer for 2012 for Kolb, but that is much less valuable than a guaranteed top-10 pick. (Teams are ranked within each round in reverse order of their record. If a team with a top-10 pick in 2011 did very well in the upcoming season, their pick next year might wind up being in the 20s, and thus much less valuable to the Eagles.)

Over the weekend, 254 players were drafted by 32 teams. But every year, undrafted rookie free agents sign with teams, and many make a big splash. Undrafted free agents can be quite productive -- the Packers won the Super Bowl with three undrafted free agents among their 22 starters. But those types of player transactions cannot occur during a lockout.

Even drafted players feel the pinch. Rookies cannot work out with teammates, study playbooks or film at team facilities or meet with coaches. NFL football is much more complicated than college football, and these rookies may be behind the curve even if the year starts on time. On the other hand, the owners are right: you can't unscramble eggs. What if free agency opened, only to have it close again a few weeks later? Would trades be invalidated? Would free agent signings be undone?

5. Parties Bargain in the Shadow of the Law. In an earlier post, I wrote about an article (in a different context) where two law professors wrote that the law does not impose obligations; instead, it sets up a framework and parties negotiate within that framework. I suspect that's what will happen here. The Eighth Circuit will issue a stay pending appeal, or not. Within that framework, the parties will negotiate a settlement that reflects each side's new-found (or lost) leverage. For us poor fans, the next best chance of a settlement will be later this month, when the parties re-convene for a mediation on May 16. Presumably by then the Eighth Circuit will have decided one way or another on the stay, and the losing party will want to get to a resolution quickly.

I am still optimistic that the parties will work something out. But then again, in 1992, the players went to trial, and won, on antitrust claims against the owners. Although trial is extremely unlikely -- some 95% of cases in general settle -- it is always a lurking possibility. Jim Quinn, an attorney for the players, was the players' trial counsel in 1992, so he is no stranger to this process.

***

As always, I'll continue to keep an eye on things and let you know when I have any news. I've previously covered in more depth the legal issues presented by the lockout here and here.

Owners File Reply Brief; Matter Now Up to Eighth Circuit

This morning, the NFL filed a reply brief with the Eighth Circuit Court of Appeals. This was per schedule the Eighth Circuit set out last week shortly before it issued a temporary stay. The owners' brief hangs mostly on union's decision in March to decertify. The owners continue to push the argument that decertification was a sham and therefore the players are not entitled to file an antitrust lawsuit. They also note that players will suffer no harm if the case is resolved at some point in the offseason. (They quote players like Ray Lewis saying the lockout was a "great[] opportunity" to have a free summer, and note that players often "hold out" and do not participate in offseason activities at all, in support of their argument that the players would not be harmed by a truncated offseason.)

One of the commenters noted last week that the same panel that decided the request for a temporary stay will probably have the case from here on out. I've been able to confirm that the temporary stay panel will decide the underlying stay motion. I do not yet know who will be on the panel that will decide the merits of the appeal.

As always, I'll post updates as soon as I get them. The situation has been moving sort of quickly, so I'll post a synopsis soon as well that lays out where we stand.

Eighth Circuit Issues Temporary Stay; Reinstates Lockout (UPDATED)

(Updated below.)

The Eighth Circuit Court of Appeals has issued a an "administrative stay" of Judge Nelson's decision lifting the lockout. This is a temporary measure, in place until the underlying motion for a stay can be decided, probably early next week. This was a 2-1 decision. The two judges in the majority were appointed by President George W. Bush; the dissenter is an appointee of President Bill Clinton. It is not clear if this is the same panel that will decide the underlying stay request on Monday.

Stay tuned for more details.

UPDATED: The majority -- Judges Steven Colloton and William Benton -- granted the NFL a temporary administrative stay with little discussion. They wrote, "The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal.", cited a few cases, and concluded, "The district court's order of April 25, 2011 is temporarily stayed." The majority framed this as an issue of basically putting things on hold while it considered the merits of the NFL's stay motion (which will get full briefed on Monday morning and considered shortly thereafter).

Judge Kermit Bye dissented. He argued that the stay should only be used for emergency situations, such as when an immigrant is about to be deported or when a prisoner is about to be executed. He wrote, "The NFL has not persuaded me this [an] emergency situation which justifies the grant of a temporary stay . . . . If we ultimately grant the motion for a stay, the NFL can easily re-establish its lockout. The NFL is certainly not in the same emergency position as an immigrant about to be removed, or an individual about to be executed".

Note that this decision puts the lockout back in place only for a few days, when the Court will decide whether the lockout should be reinstated for the entirety of the appeal (which will take weeks if not months). To win such a ruling, the NFL will have to show that it would suffer "irreparable harm". In this regard, it is telling that Judge Bye wrote, "the NFL has failed to satisfy me it will suffer any irreparable harm from allowing the district court's order to take effect."

We do not know who will be on the three-judge panel that ultimately decides the stay request, but Judge Bye's dissent suggests that, if he is on the panel, the NFL will have its work cut out to convince him of the harm it is suffering.

Note also that Judges Colloton and Benton did not discuss the merits of the case at all, so it is impossible to know what they think of the case itself.

Players File Opposition to Owners' Request for Stay (UPDATED)

Note: Update Two Three updates below.

The players have just filed their opposition to the owners' request for a stay in the Eighth Circuit Court of Appeals. Their brief is 30 pages long -- over the Eighth Circuit's page limit, so they had to file a motion earlier today asking for permission to go over -- but it makes the same arguments we've seen before. Most critically, they hit on the point that the NFL will suffer no harm in the absence of a stay. To get a stay of the injunction, the NFL has to show that it will suffer "irreparable harm". The players say that, because the teams reopened for business today, and intend to issue rules for player transactions soon ("likely tomorrow", the NFL said yesterday), the NFL is well equipped to resume business immediately. The fact that it can do so, in the players' view, demonstrates the lack of irreparable harm.

(The owners' argument, from their brief yesterday, is that there are legal impediments to lifting the lockout and that, if they (the owners) "produce their collective product", they face the risk of further antitrust liability.)

The new brief doesn't raise any points we weren't expecting. However, I was struck by the fact that it never mentions the word "contempt". (And, thus far, no contempt filings at the district court.) This suggests that the players are backing off of their hard line, especially in light of the fact that the Eighth Circuit has not (yet) issued a temporary stay, which means that League operations can (and in the players' view must) resume.

Check back later for some more analysis.

UPDATE: Some outlets are reporting that the stay has been granted. This is incorrect, as of 2:10 p.m. Eastern time. The Eighth Circuit granted the players' motion to file a brief in excess of the page limits. The Eighth Circuit has not granted a stay.

UPDATE #2 (4:15 p.m.): Still no stay. The earlier reports of a stay being granted have been retracted. The owners have asked for permission to file a 15-page reply (instead of the usual 10) on Monday morning, but no other substantive activity on the dockets, either at the Eighth Circuit or the District Court.

UPDATE #3 (6:00 p.m.): Still no stay (or contempt motions), although the owners' motion to file an overlength brief was allowed.

Latest NFL Lockout News (UPDATED)

(Updated Two Three Four updates below)

The owners have filed a letter in the Eighth Circuit responding the players' letter from earlier this morning, and attaching a letter from the players' counsel (James Quinn of Weil Gotshal) indicating that it was the players' view that league operations must resume immediately and that the owners were in contempt if they did not. Check back shortly for more.

UPDATE: Earlier today, James Quinn, attorney for the players, sent a letter to Gregg Levy, attorney for the NFL, which concluded, "Please confirm that the League will commence 2011 league operations with immediate effect, including the opening of the free agent signing period and the provision of player access to team workout facilities and personnel. Failure by the NFL Defendants to comply with the Injunction Order is grounds for contempt, and the Plaintiffs will pursue appropriate remedies."

Fifteen minutes ago, the League wrote a letter to the Eighth Circuit, attaching Quinn's letter and reiterating their request for a temporary stay. In their letter this morning, the players wrote that they would like the Eighth Circuit to hold the owners request "in abeyance" -- saying, essentially, "Please don't rule on this until we can get out papers in tomorrow". The owners (rightly, I think) are saying that delaying a decision is like denying the request: if the Eighth Circuit does not issue a temporary stay, the players will argue that the League must resume business immediately, on pain of contempt, with the threat of "appropriate remedies".

Remember, a "temporary stay" means that the Eighth Circuit would temporarily put Judge Nelson's decision on hold -- preventing the start of the new League year -- until it makes a final decision about staying her decision while the actual appeal is pending. The owners write that a temporary stay would only last a few days, and in this regard they are probably right.

I suspect that the owners will get their temporary stay. The players will put in their opposition to the stay tomorrow afternoon, the owners will respond, and we will have an actual stay decision within a few days. Getting that stay -- to put the decision on hold for the pendency of the entire appeal, a process that could take months -- will probably be much harder to come by.

UPDATE TWO (1:20 pm): The Eighth Circuit just issued an order which reads,

The National Football League has filed a motion for stay pending appeal and to expedite the appeal. The Players are directed to file a response to this motion by Noon, CDST, on Friday, April 29, 2011. The League’s reply to the response is due by 9:00 a.m. CDST, on Monday, May 2, 2011.

The League’s motion for a temporary stay remains pending before the court.

I wonder why the temporary stay motion was not decided yet. Probably not great news for the owners, though it's always hard to predict these things.

UPDATE THREE (1:40 pm): The rumblings are that the players will write a letter to Judge Nelson to clarify that the League year must begin tomorrow. The NFL sent a memo to the owners indicating that facilities could open for business, but specifically not issuing any guidelines on free agency, trades, etc. Remember, in his letter earlier today, players' attorney James Quinn wanted the League to confirm that the "League will commence 2011 league operations with immediate effect, including the opening of the free agent signing period and the provision of player access to team workout facilities and personnel". The League only agreed to one of those two things, but it appears that the League's memo was sent just before the Eighth Circuit's order taking no action on the temporary stay. If no temporary stay issues, contempt proceedings become much more likely.

UPDATE FOUR (4:20 pm): This afternoon, the players filed yet another letter with the Eighth Circuit, seeking to make "one final point" regarding the owners' request for a temporary stay. In short, they contested the owners' factual assertions, arguing that the league would suffer no harm by immediately lifting the lockout. They attached NFL's post-injunction memo to teams, which had specific provisions regarding OTAs, workouts, etc. -- but specifically did not mention player transactions. The players have been insisting that free agency must open immediately, and this letter continues that theme and attacks the owners for not complying with Monday's order lifting the lockout. No word yet on when the Eighth Circuit will rule on the temporary stay request.


As a practical matter, this doesn't change much -- we have heard these arguments before -- but it does suggest that the players are not backing down from the position that the League year must begin immediately, and presumably that failure to do so constitutes contempt.

NFL Lockout Update: Owners seek expedited review; players respond

Just before midnight eastern time last night, the NFL filed a motion at the Eighth Circuit Court of Appeals asking for a stay of Judge Nelson's preliminary injunction motion. The NFL also sought a stay pending a decision on the stay motion itself. In response, the players filed a letter this morning that they will oppose the request for a stay by noon tomorrow, asking that the temporary stay not be decided until then. The letter also gives a preview of the argument they will make in their brief, which is that the Judge emphatically found for them on each point below.

One important thing to note: In the owners' motion last night, the "expedited" schedule they seek would complete all briefing by May 31 with the motion argued "as soon as possible" after then. So we are realistically looking at at least 5-6 weeks before a decision from the Eighth Circuit -- another month just for the papers to be submitted, and -- even if the case is argued immediately thereafter -- another week or two for a decision. This isn't going to be resolved anytime soon.

I was struck by the owners' proposed briefing schedule: their opening brief be due 5/10, the players' response by 5/24, and their reply by 5/31. This seems like a downright luxurious time frame under the circumstances. I am surprised they didn't seek to put in their opening brief on Monday (5/2), have the players respond by Friday (5/6) and reply by the following Monday (5/9). Lawyers brief matters on tight schedules all the time, and I'm sure the firms involved have teams of associates working on these briefs as we speak (type. read. whatever.).

I wonder if the decision regarding the briefing schedule is a tactical one, keyed to the fact that Judge Doty will be holding a hearing on damages in the TV revenue case on 5/12, and that the parties are scheduled to have a mediation session on 5/16. Under the proposed briefing schedule, the owners' brief would be in before those dates, but the players' brief would not. Perhaps the best time for a settlement is between 5/10 and 5/24.

Fun fact: David Boies and Ted Olson together took the case to trial last year that struck down Proposition 8, California's gay marriage ban. Now Boies is representing the owners and Olson is representing the players.

Side note: there has been some talk that the owners might be in contempt of Judge Nelson's order if free agency does not begin today. So far, no contempt motions have been filed, either at the Eighth Circuit or before Judge Nelson. Moreover, Judge Nelson held last night that no team is obligated to sign any given player. So even if free agency is "open", it may not mean anything if teams are nonetheless unwilling to sign players. (Of course, if they acted in concert to refuse to sign players, that may pose its own legal risk.)

Judge Nelson Denies Stay (or: What You Didn't Know About the NFL Lockout)

First, some preliminaries: On Wednesday evening, Judge Susan Nelson denied the NFL's motion for a stay of the preliminary injunction pending appeal. Although it was widely expected that Judge Nelson would not stay her decision, the reasons she would give for denying the stay were unclear. Now we know.

ESPN's Adam Schefter tweeted, "Judge's 20 page order takes her 89 page order from Mon and hits the major points even harder. Makes NFL's attempt to get overturned harder." I think Adam is exactly right here. When it decides whether or not to reverse Judge Nelson's order enjoining the lockout, the Eighth Circuit will be applying the same legal standards Judge Nelson did, and her opinion provides a roadmap for the appeals court's potential analysis.

In particular, Judge Nelson repeatedly notes that she is only enjoining the lockout. All of the other aspects of the plaintiffs' case -- challenges to player movement and the draft, for example -- are not the subject of the preliminary injunction order and have not been adjudicated. Why does this matter? Because although Judge Nelson is ordering the NFL to lift the lockout, she is not ordering them to put in place any particular set of rules. In her words:

With respect to the NFL’s alleged injuries, this Court finds the League’s claim of irreparable harm, absent a stay, misplaced. The League may choose to act in accordance with its expressed belief that the Players remain a union and that they have reached a state of impasse, or the League may choose to chart a different course, implementing a version of the 2010 player system, or something different altogether. This Court’s Order does not obligate the NFL to enter into contracts, nor does it proscribe the League’s non-lockout conduct in general. Like any defendant in any lawsuit, Defendants themselves must make a decision about how to proceed and accept the consequences of their decision.

I find this notable for two reasons. First, Judge Nelson is telling the league that, although it must open for business, it can choose what rules it will operate under. Second, and more interesting, she is giving the league no guidance on what rules might be illegal. Essentially, she is telling the NFL, "You have to open for business. You decide what the new rules will be, but the rules you implement might themselves be illegal. You have to make a decision 'and accept the consequences of [that] decision'".

This is big. The NFL argued in its papers that it would be harmed if the decision was not stayed, because it would be forced to implement rules that might be illegal (i.e., violate antitrust laws). Judge Nelson was not swayed by that argument.

Now to the burning question: what does this mean as a practical matter? Well, teams will probably open their facilities and let players work out, get access to trainers, use practice facilities, etc. But what about trades? It is unlikely that we'll see any player movement in the near future. The NFL will say that it needs some time to figure out how player movement might occur. Judge Nelson notes in her decision denying the stay that the NFL has been proceeding under 2010's rules in some instances (for example with regard to franchise and transition player tags). The league may well extend those rules while the litigation plays out.

No one can predict when the Eighth Circuit will rule, let alone how. But let's assume that the Eighth Circuit affirms. (Most district court decisions are affirmed, and this one will be reviewed using a standard that is quite deferential to the district court.) How will this entire mess be resolved? This brings me to the "what you didn't know" portion of the analysis.

The latest reports before negotiations fell apart were that the two sides were separated by several hundred million dollars. Although this is a lot of money, in the scheme of things, it is not an insurmountable sum. But there is a bigger issue lurking (thanks to my friend Jason Reimer for talking through some of these issues with me). Remember, the union "decertified" -- meaning it disbanded as the collective bargaining representative of the players -- before the players' lawsuit. This is because a union cannot file an antitrust suit against an employer; only the individual employees can. Apart from the money issue, the owners are likely to insist that the NFL Players Association reconstitute itself as the players' union (not just a "trade association") as a condition of settlement. The owners would likely feel -- as Commissioner Roger Goodell noted in his recent Wall Street Journal op-ed -- that the threat of litigation would hang over their every decision. To allay that very real fear, they would insist on the players forming a union.

This is not new. The last time there was a work stoppage, the owners insisted that the players' union reconstitute itself (even though it did not want to); the players agreed to this only because the owners also agreed not to challenge any subsequent decertification. (This is at pages 10-11 of Monday's opinion.)

Well we know how that worked out: the players did decertify, and the owners did challenge it. Judge Nelson has rejected those arguments for now. But if a few years from now the NFLPA plays the same trick a third time -- decertify in order to bring a lawsuit -- the owners may finally succeed on their claim that decertification reflects nothing more than a negotiating (and litigation) tactic, that decertification is in fact a sham. The players know this too, and they might fight much harder not to reconstitute the union. But their refusal to do so could jeopardize any settlement -- even if the two sides agree on dollars and cents (and concussions and preseason games) -- because the owners don't want the brooding omnipresence of litigation in the background, and the players don't want to limit their legal options in the event of a future labor dispute.

And there is yet another moving part. On March 1, Judge David Doty ruled that the NFL breached its obligation to negotiate in good faith and maximize total revenue for the league when it guaranteed revenue for itself from television contracts even in the event of a work stoppage. (Essentially, the league gave TV stations a 'discount' for 2009 and 2010, so long as they agreed to pay about $4 billion for 2011, even if there was a lockout.) The players successfully challenged this agreement, saying that the owners had a duty to maximize total revenue for each year (because that pie is what is shared between owners and players), which they breached by guaranteeing themselves, but not the players, money in a locked out 2011.

But while Judge Doty has ruled for the players, he has not said what they are entitled to in terms of damages. This number could run well into the millions. If the figure is sizable, the players will have even more leverage: they would essentially be negotiating with the owners' money! (For example, they might "give up" the TV money -- which they don't have -- in exchange for concessions in the new labor agreement.) Obviously, opportunity costs are real costs, but as a psychological matter, it is much easier to give something up when you've never had it in the first place (endowment effect).

I wrote earlier that I'm confident that we'll have football in 2011, but after giving these last two points some more thought, I'm a little less confident. In particular, I think we will see a big sticking point as to whether the union has to re-form in order for any settlement to take place. And the owners might face a multi-million dollar judgment in a few weeks, after Judge Doty rules.

I suspect that in the next few days, the league will announce that it will resume operations under 2010's rules (no salary cap; franchise and transition tags in place; etc.) Free agents may try to market themselves to teams, but even Judge Nelson's second order notes that no team is obligated to actually sign any given player. In the meantime, the Eighth Circuit will set a briefing schedule and Judge Doty will take up the damages issue in the TV revenue case. All of these goings-on in mid/late May suggest that the best time for a settlement might be in the next couple of weeks -- and if we don't see a deal by mid-May, we may have much longer to wait.

The NFL's Worst Case Scenario

In my earlier post, I discussed several possible outcomes in the antitrust suit between the NFL and the players ("Tom Brady et al.") Earlier today, ESPN's Adam Schefter talked to NFL Commissioner Roger Goodell about some of the issues facing the League in view of the judge's latest ruling. As I noted in my last post, there are lots of moving parts here, and potentially, this dispute could be far from over.

On the other hand, there is a way that this could go downhill, very quickly, for the league.

On Monday evening, Judge Susan Nelson granted the players' motion for a preliminary injunction. She also held that the "'lockout' is enjoined". Shortly thereafter, the players sent a letter to the court asking for "clarification of the quoted language". The owners have until 5 pm today to respond. So what is the NFL's worst-case scenario?

The initial order said that the lockout was "enjoined". Judge Nelson could clarify that this means that the lockout must end -- immediately. If she issues this ruling Thursday night, there could be very serious consequences for tomorrow's NFL Draft. Remember, while the case was under consideration by the judge, conventional wisdom was that the draft would happen as usual, except that trades involving players would not be allowed (pick-for-pick trades would still be allowed).

If Judge Nelson holds that the lockout must end immediately -- but does not specify that the NFL's operations resume under the now-expired collective bargaining agreement -- then we would have a free-for-all on the eve of the draft. The league would be forced to reopen for business, but with no CBA in place, there would be literally no rules to govern player movement. You could see the Carolina Panthers trading their #1 pick to Indianapolis in exchange for Peyton Manning to play on an eight-game, $100 million contract. As an Eagles fan, I wonder what would happen to Kevin Kolb -- would he get snatched up by a team desperate for a new QB? (And what would the Eagles get in return?)

The league believes, as it wrote in its motion for a stay, that it is impossible to unscramble these eggs if and when the Eighth Circuit reverses the district court. But Judge Nelson has one more arrow in her quiver. She could emphasize that the lockout must end immediately, on pain of contempt. Generally, a party that does not comply with a court order would be in contempt of court. (In this case, that probably means a substantial monetary fine for each day the league does not lift the lockout.) As a practical matter, it is hard to get one's adversary fined immediately: If he does not comply with the order, you will have to go to court, ask for an order of contempt, he will have some time to respond to your request, etc. But if Judge Nelson says in her order that noncompliance will be punished by a specific penalty (say, a fine of $100,000 per day that the lockout is not lifted) , then the league will be on notice that a penalty will attach if the lockout was not lifted immediately.

So that's the NFL's worst case scenario: an order tomorrow evening clarifying that the lockout must be lifted immediately, with an explicit proviso that failure to do so will result in a finding of contempt.

By the way, this worst case scenario might be the NFL's saving grace. Imagine that the lockout was lifted (with "no rules") Thursday night. The crazy shenanigans that might occur (Tom Brady to the Bills for $1 billion!) are precisely why the league says, in their application for a stay, that the owners would suffer irreparable harm without a stay -- imagine trying to, in their words, "unscramble the eggs" if the Eighth Circuit were to reverse. But between Judge Nelson's clarification order and a ruling from the appeals court, which could easily take weeks, Judge Nelson's order will be the law. And the potential fallout for the owners is grave indeed.

Later today, I'll write about what the worst-case scenario for the players might be. Spoiler alert: it's that they lose on appeal.

EDIT: Corrected the day of the draft -- it's tomorrow, not Friday.

NFL Lockout Lifted; What's next?

As is pretty well known by this point, U.S. District Judge Susan Nelson ruled for the plaintiffs in Brady v. NFL, the antitrust lawsuit brought by current and prospective NFL players against the National Football League. What is clear is that the ruling granted the relief sought by the plaintiffs, namely, a preliminary injunction. What is less clear is what this means as a practical matter, particularly because the NFL has asked for a stay (meaning that Judge Nelson's decision would not go into effect pending expedited review by the appeals court). Judge Nelson has ordered the plaintiffs to respond to the request by Wednesday, which means that we will have to wait at least 24 hours to get some clarity on the situation.

Legal commentary on the decision is quickly proliferating through the blogosphere. Michael McCann has a great post up on Sports Illustrated breaking down the key practical and legal issues. (Disclosure: he has also blogged at The Situationist, where I have blogged in the past).

As McCann alludes to in his post (and as my friend Jason Reimer pointed out on twitter), the owners are in a bit of a bind. If the owners get together and decide how to respond to the ruling -- for example, by not engaging in any trades until the Eighth Circuit rules, a process that could take weeks -- they might face the risk of further antitrust violations (for colluding to restrict player movement, for example). On the other hand, the NFL raises a valid point in its motion for a stay, arguing that the league will suffer irreparable harm if it opens for business today, only to have Judge Nelson (or the Eighth Circuit) stay her decision a few days (or weeks) later.

One hurdle for the owners is that preliminary injunctions are reviewed very deferentially. Just a few months ago, the Eighth Circuit wrote,

“We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court.” . . . "An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.”

Rogers Group, Inc. v. City of Fayetteville, 629 F.3d 784, 787 (8th Cir. 2010) (citation omitted).

What does this mean as a practical matter? "Abuse of discretion" is a very hard standard to meet. To be reversed, Judge Nelson's decision would have to be so obviously wrong ("clearly erroneous") that it is implausible. Generally, appeals courts do not like to tell district courts that they have blatantly screwed up. This makes the climb that much steeper for the owners.

I continue to be optimistic that we'll have a football season this fall. Indeed, I never really thought we wouldn't have football this fall. The real question is, when a deal gets done that brings us the 2011-12 season, what will that deal look like? Last night's decision tilts the scales in favor of the plaintiffs, so that they have a little more leverage in the negotiations. About 20 years ago, in the context of divorce law, Robert Mnookin and Lewis Kornhauser wrote that parties "bargain in the shadow of the law". That is, the law does not "impos[e] from above, but rather . . . provid[es] a framework within which [parties] can themselves determine their . . . rights and responsibilities.”

Something similar is happening here. Last night's decision ended the owners' lockout, at least temporarily. But more important, it changed the negotiating context for owners and players. A reversal from the Court of Appeals would change that context once more.

Notably, Judge Nelson's decision was made at the preliminary injunction stage. In theory, this is a temporary decision -- in place only until the underlying lawsuit is finally resolved. That means, even if the Eighth Circuit does not immediately reverse the decision, Judge Nelson herself could ultimately rule in the owners' favor at some later stage in the case. By its terms, this decision is "preliminary".

In practice, the case will probably resolve itself long before any major further proceedings. But because the case has so many moving parts -- the owners' appeal, potential further proceedings before Judge Nelson, the owners' NLRB complaint against the players, the players complaint against the owners regarding TV revenue, and (lest we forget!) the actual terms of a future collective bargaining agreement -- the dispute is far from over.

New Design

We're trying a new design. Let us know if you like it, or prefer the old one--tips@blackbooklegal.com.

The Stress

It begins for those in our profession the moment you decide to attend law school. We stress about the LSAT, getting into the best school, beating 1L, getting onto law review, setting up a job, getting a clerkship, publishing our student notes and comments, passing the bar, and so on. Are lawyers just creatures of stress due to the overwhelming amount of type-A’s in our midst? Or, does the work in this field simply facilitate anxiety? Whatever the reason, excessive stress is problematic, and can lead to other mental and physical health issues, including depression. In fact, I recently observed a thread in an online forum where prospective bar exam takers were utilizing hypnosis to counter the extremely high level of anxiety they were experiencing in preparing for the bar exam--there has to be a better way.

To that end, Damien Carrick, of ABC Radio National (Australia), discussed this issue in depth on the April 6th edition of his radio program, the Law Report. In particular, he spoke with various attorneys and medical professionals who offer advice on various measures you might consider taking if you’re a lawyer suffering from high levels of stress.

This is an issue that I believe is not taken seriously enough by most legal professionals, so check out the transcript.

Procedure, Substance, and Why Are We All Here?

Over at The Situationist (where I have blogged in the past), the staff has posted an essay considering the intersection of two topics: the tension between preferences and principle, as explicated by Knowles and Ditto, and statutory construction. Knowles and Ditto argue that people's preferences override their principles, that is to say, individuals' preferred outcome trumps whatever principles they claim to adhere to. The Situationist post draws a parallel between this and Llewellyn's famous critique of canons of construction. Llewellyn argued that each given canon had a "counter-canon", which was equally legitimate and could thus be used to reach the opposite result. Rather than using the principle to reach a conclusion, Llewellyn suggested that the judge decided on a result and chose the appropriate cannon. The Situationist post makes connections between Llewellyn's work and the more recent Knowles and Ditto piece. That post concludes:

Does this insight lead to the inescapable conclusion that the use of canons in statutory interpretation is inherently invalid? Not exactly. First, abolishing the use of canons would do nothing to solve the “problem” of results-based reasoning—judges could simply rely on other tools, such as legislative history, to provide post hoc rationalizations of their preference-based decisions. Legislative history is subject to the same critiques as the canons of construction; namely, that there is often legislative history support both sides of a debate, allowing judges to, as Justice Scalia put it,“look over the heads of the crowd and pick out your friends.” This argument is somewhat defeatist in that it seems to concede that the human decision-making process is inherently flawed. However, decision-making on the basis of intuition is not inherently invalid, and may actually “reflect adaptive insights accumulated over the course of human evolution.”

Further, our system requires judges to do more than simply declare “yes” or “no.” Federal Rule of Civil Procedure 52(a) requires judges to explicitly state their findings of fact and conclusions of law; this rule has three important ramifications to our topic. First, the very act of committing their reasoning to paper may reveal a judge’s logical inconsistency or suboptimal use of a canon to him or herself. Second, writing an opinion allows dissenting judges to file their own opinions in response; these dissents may reveal stronger arguments to judges in the majority. Finally, our appellate system allows incorrect legal conclusions made at the lower levels of the court system to be corrected by the high courts. This doesn’t entirely overcome the defeatist position, as having many biased decision-makers arguing about differing biased decisions solves very little in a search for an objective truth, but that stance presupposes the very existence of an “objective truth” – a topic far beyond the scope of this post. For now, we can take solace in the fact that even if Knowles and Ditto are correct in that the individual decision-making process isn’t quite as objective as we’d like, any judge’s individual decision must survive several rounds of checks and balances before becoming law.

I want to pick on this conclusion. First, the "several rounds of checks and balances" really provide that much "solace"? Dissenting opinions only come about (if at all) at the appellate level. Trial-court decisions are typically decided by a single judge (rare exceptions notwithstanding) and are not subject to dissent. Most decisions are not appealed, and most appeals are affirmed. The Supreme Court, as it reminds us many times, is not a court of errors and declines to hear the vast majority of cases presented to it. Even at the Supreme Court and the Courts of Appeals, the most common dispositions are unanimous decisions. (I have not dug up the citations for this post, but I make these points in my recent article on stare decisis.) I wonder if this does not give lower court judges a tremendous first-mover advantage, particularly in state courts where the volume of cases is much higher (thus leading to the risk of less robust processes of error-correction, such that they are). More broadly, this raises the question of procedural checks on substantive errors. That is, we believe that imposing certain procedural hurdles (written decisions, appellate review, published dissents) will work out substantive mistakes. But it is not at all clear or intuitive that this should be the way to work out problems in the law

The response might come, "Well what is the alternative? Substantive checks on substantive errors? That simply encourages the second decision-maker substitute his (biased and subjective) judgment for that of the first decision-maker." But this position is, in the terminology of the post, "defeatist". If we are all looking out at the crowd and picking friends, then we may as well call the whole enterprise off. I'll only agree with my friends, you with yours, and we cannot reconcile our positions.

That counter-argument actually has quite a bit of purchase. The political system is constructed essentially on that premise, deferring almost entirely substantive questions, and insisting instead that meticulous procedural arrangements are met (two senators per state, two houses of Congress, judicial review, presidential vetoes, the Electoral College, etc.). It is as if the founders were aware of Aristotle's three forms of government (he called them six, but Machiavelli later explained, there are really only three; each can be either good or bad) and created each of the three branches in the image of one of those three forms (rule of the one, executive; of the few, judicial; the many, legislative).

Substantive ideals are also advanced by procedural means. Consider our criminal justice system's pro-defendant tilt. You can imagine a conversation that runs something like this: "We do not want individuals wrongfully convicted of crimes. Therefore, we will presume innocence and not require testimony from defendants. Those defendants who are convicted will have the ability to appeal, though as a rule, the government may not appeal an acquittal. Even after meaningful judicial review, some cases may slip through the cracks. Therefore, we will allow post-conviction collateral attack on convictions by means of the writ of habeas corpus or an adequate substitute for the writ. Finally, we will even allow private actions against individual government employees means of 42 U.S.C. § 1983."

All of these elements exist in our system, but one must ask if these rights are robust or hollow. Although defendants are not required to testify, police officers routinely seek waivers of Miranda rights. Criminal appeals are often summarily affirmed. The right to habeas corpus is limited at best; petitioners -- who are often proceeding pro se -- must comply with labyrinthine procedural requirements or risk immediate and often-irreversible default. Although § 1983 actions are a theoretical remedy, they cannot be used to challenge the fact of confinement; any monetary awards are limited by the Prison Litigation Reform Act; and in any case government agents enjoy absolute or qualified immunity in many cases.

One could draw two conclusions from this landscape. First, we might despair that court decisions have eroded our commitment to criminal defendants' rights (this is similar to the point about procedural judicial activism I make in this piece). But second, we might take some comfort in the fact that various procedural protections exist. Though they may be less robust than they could be, they are certainly more robust than the alternative (no protections at all!). If we as a society will be psychologically predisposed against criminal defendants, then a pro-defendant "systemic bias" may serve as an adequate thumb on the scale to correct that bias.

Wechsler's and Llewellyn's heirs will carry the debate on for years hence. Going forward, we might ask that these debates be informed by empirical data about how we humans actually think (and how we think we think). I am reminded of Robert Maynard Hutchins's lecture in the 1930s where he noted that the law had devoted an entire subject, the rules of evidence, to how jurors will react to different types of evidence (expert testimony, lay testimony, hearsay, etc.) -- yet no one bothered to consult psychologists and other social scientists about whether the law's assumptions had any basis in reality or not, and the psychologists had not given any study to the behaviors of juries! In a very real sense we are still only a few steps down the journey that Hutchins sought to set us on almost a century ago.

Perhaps the legal system will never perfectly embody "neutral principles" or "realism" (whatever those terms mean in a vacuum). But if the system aggressively seeks, identifies, and counteracts cognitive bias, then we may be closer to a framework that more accurately reflects society's "true", behind-the-veil preferences about how justice is best served.