Thursday, April 28, 2011

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.)


  1. So slowly moves the hands of justice. 1 MONTH?!? Any hope for an agreement before then?

  2. There's always hope. Sometimes that's all there is!

    I think the two sides could get a deal done in mid-May. The owners will want a global settlement that resolves all of the outstanding cases. At this point, the money may be the easy part; the sticking point may be whether the owners insist on the union reconstituting itself.

    I think our best hope for an agreement is mid-May, around the time of the next mediation session. The owners' brief will be out there, so we'll know what their position is (though I suspect it will be very similar to what they've argued thus far). The mediation will be in the works, and the mediator may have, for example, asked the two sides what their "best offer" is, to try to hammer something out. If we don't see anything by late May, I'd get less optimistic.

    Then again, I've seen cases settle at the very last minute (one case settled after closing arguments and before the jury's verdict!) So anything is possible.

  3. Is the 8th Circuit recommending this case for appellate mediation? funny that Teddy is on the players' side. Doesn't he still work for GDC?

  4. 11:33 AM here again. BTW, thanks for covering this issue so heavily. I'm perplexed as to why ESPN or SI hasn't picked some of these points up.

  5. @11:33, the Eighth Circuit has a "Settlement Program", which is run by a lawyer and through which cases with settlement potential are identified for mediation. However, participation in the program is voluntary. I don't see the parties going for it, since they already have a mediation pending with the district court. Also, the district court mediation could presumably achieve a global settlement, while the Settlement Program would, I would guess, focus only on the issues that are the subject of the appeal. As Judge Nelson noted, that is a very small subset of the case.

    With a case like this, where things move very quickly, I just think it's hard to get everything out as quickly and thoroughly as we might like. But the more people that are writing, the more likely that someone has covered each relevant topic.

  6. Ah-- I should have looked at the documents. Filed with the owners' notice of appeal is Eighth Circuit "Form A", which contains this: "I have discussed settlement possibilities on appeal with my client. This appeal is not amenable to settlement. As an appeal taken under 28 U.S.C. § 1292(a)(1), it is excluded from the Court’s prehearing conference program under Eighth Circuit Rule 33A(a)."

    1292(a)(1) refers to interlocutory appeals of injunctions, and 1292(a)(1) appeals are specifically excluded from the mediation program.

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