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.


  1. Richard McLennanMay 16, 2011 at 7:28 PM

    Quick question: If the NFLPA Decertified, doesn't that mean they are not the player's union, and therefore they can't negotiate for the players? So, who is the NFL supposed to negotiate with?

  2. This pretty much means we won't have NFL football as we know it next season. I am sick to my stomach about this.

  3. Can't say I'm surprised after it took this long.

  4. This doesn't mean that we won't have football. It's actually a good thing. The players will now have to grow up and be happy with their average $1 million/year salaries.

  5. @7:28, The NFLPA is continuing as a trade association, even though it is not the exclusive collective bargaining entity for the players. (The NFLPA had decertified in 1987 and remained only a professional association until 1993, when the Reggie White litigation settled.)

  6. Hopefully this induces the NFLPA (wait, I forgot, there is no NFLPA!) to settle.

  7. Goutam,

    With the season fast approaching, is it likely in your opinion that either side would seek en banc rehearing or petition for certiorari? Should we expect the litigation to play out to its conclusion or would the parties have the wherewithal to settle in the midst?

  8. @9:51, rehearings are granted only rarely, cert petitions even more so. I don't think the players will seek further review of the denial of a stay pending appeal. If talks truly do break down then we might see an appeal to the SCT after the decision on the underlying preliminary injunction appeal, though that seems likely only if the sides really don't see a solution in the near future.

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