Monday, May 16, 2011

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.

Sunday, May 15, 2011

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.

Tuesday, May 10, 2011

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.

Monday, May 9, 2011

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
"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.

Saturday, May 7, 2011

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.

Thursday, May 5, 2011

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.

Tuesday, May 3, 2011

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.

Monday, May 2, 2011

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.