On an august playing field today, some of the finest players only scholars would pay to watch might decide the fate of the nation's most popular sport.
The National Football League is at legal loggerheads with its players, and the 8th Circuit Court of Appeals in St. Louis is hearing the case. The 2011 season could hang in the balance.
Officially, the case at hand is slotted as Tom Brady et. al. v. the NFL. It is but one of three legal balls in the air right now, but for a variety of reasons its adjudication may prove decisive. The court could rule to either lift the owner-imposed lockout, a decision that would presumably green-light the 2011 season; allow the lawsuit and the lockout to continue; or toss out both the lockout and the lawsuit. Here is how the field is set on the eve of battle.
The players
Three judges will hear and rule on the case, the same panel that voted 2-1 last month to stay a district court injunction against the lockout. For those keeping score at home, the two judges who sided with the league and voted to lift the lockout injunction, Duane Benton and Steven Colloton, were appointed by President George W. Bush; the lone dissenter, Kermit Bye, is a Bill Clinton appointee.
Arguing before them will be a pair of former solicitor generals: Ted Olson for the players, and Paul Clement for the owners. Both served as the government's top lawyer before the Supreme Court under Republican administrations and are reportedly close friends, although they have found themselves on opposite sides of other headline cases. Olson, whose wife was killed in the plane that crashed into the Pentagon on Sept. 11, 2001, recently fought against a California initiative banning same-sex marriages, while Clement recently resigned from King & Spaulding, an Atlanta firm, when it decided to drop the House of Representatives as a client on behalf of the Defense of Marriage law.
Olson will be joined by David Boies, a celebrated trial lawyer perhaps best known for his lead role on the losing side in Bush v. Gore after the 2000 presidential election.
Gabe Feldman, a Tulane University law professor and sports law expert, did not cite the judges' political resumes, but he believes the ultimate decision will break along the same 2-1 lines.
"In some respects the writing is on the wall -- it would be a significant surprise if they came to different conclusions," Feldman said. "I'd be surprised if the judges change their mind because it is a purely legal issue. This is just all about how three judges determine federal statutes."
Feldman, who will serve as a legal analyst on the NFL Network today, agrees the hearing will be crucial.
"I think both sides recognize this is the last big legal battle," he said.
The case
Absent any evidentiary bombshells, the case hinges chiefly on the judges' take of the NFL's argument. This is three-pronged and has not changed since District Judge Susan Nelson rejected all of them when issuing her injunction against the lockout.
First, the NFL argues that the federal Norris-LaGuardia Act makes the lockout legal. Lockouts are an accepted tactic in labor disputes and as such cannot be judged prejudicially, according to the league's briefs, and the Norris-LaGuardia Act was designed to remove anti-trust courts from labor disputes.
In lifting the injunction, Benton and Colloton indicated they found that argument compelling, and Feldman noted that alone provides a strong signal of how they will rule after today's hearing.
Should the 8th Circuit stick to that narrow ground, the most likely scenario would be the owners' lockout remains in force while the crux of the case -- the players' antitrust lawsuit against the league -- returns to Nelson and the district level.
But the appeals court could go further should it embrace the other two prongs of the NFL's brief, namely that the league's congressional exemption from anti-trust law means the players have no standing to bring suit and that the proper venue for deciding all this is the National Labor Relations Board, not a courtroom. If a panel majority accepts either of those arguments, it could throw the matter out of court.
In its most recent brief, filed May 26, the NFL urged the appeals court to take this additional step.
"This Court should reverse the District Court's improper injunction, but should also make clear that the solution to this dispute over terms and conditions of employment lies with the labor laws and not in the antitrust courts," the brief said.
On the surface, the third prong has the least chance of success. As Boies noted somewhat wryly in oral arguments before Nelson, no lawyer wants to come before a judge arguing the matter at hand is none of the court's business. But the core question of whether the players have standing to file the antitrust lawsuit may have more legs.
It also goes to one of the other legal balls floating around the labor impasse that began in March when the owners, unambiguously claiming the prior collective bargaining agreement made football less profitable for them than they think it should be, exercised their right to break away from the extant deal. When settlement talks went nowhere, the players disbanded their union, a step they believe allows them to operate as independent agents and thus file the suit.
The league, however, paints the union's dissolution as a sham, a tactic the players have used before while seeking to force the matter into the courts and away from the bargaining table. Consequently, the NFL has filed a complaint with the National Labor Relations Board, and the league's high-powered legal team maintains it is the board, not the federal court, that must rule on the topic.
But by all accounts that complaint floats in abeyance -- it as if, Feldman said, all other avenues have shut down while the case on the main stage runs its course. The same is true for a ruling by District Judge David Doty that the owners colluded to pool television money to cushion any financial hardships that might result from a lockout. Indeed, the players have maintained the owners have planned a lockout all along and therefore never negotiated in good faith before the prior labor agreement expired.
In theory, Doty could slap a fine of $100 million or more on the owners, but legal experts said the players would be hard-pressed to turn that ruling into cash that would give them a monetary lifeline if the lockout drags on, because the owners would appeal the ruling and the matter would wend the usual slow course in the federal judiciary.
Moving right along
That crawl has not afflicted the matter at hand today. In fact, the federal courts have fast-tracked the lawsuit. It is highly unusual for a case to be filed in March, and then go through district court and appeals rulings -- and then face another appeals court hearing -- in less than three months.
Feldman expects the quick pace to continue.
"It could be anywhere from two weeks to a month and a half," he said. "My guess is closer to two weeks, but it's all just a guess."
Similarly, it is unusual for the judiciary to take the documents in a case out of its cyberspace archive and make them available to all online in something close to real time, but that is what the 8th Circuit, citing enormous public interest, has done with Brady v. NFL. The court often mulls the propriety of executing a man, but such life and death issues apparently pale in the public's mind next to the question of whether professional football will be played as usual this fall.
And that timeline, should the 8th Circuit panel's 2-1 majority in favor of the NFL hold, looks shaky. Both sides are seeking leverage in the court, and the owners' share would rise considerably with a victory. That would mean the lockout continues, and the chances clubs could open training camp in July and play any sort of preseason schedule diminish.
The losing side would still have appeal options, but Feldman considers them long shots. Unless there is a particularly controversial element to the panel's ruling, or there exists a number of 8th Circuit judges who would likely dissent from it, the court is unlikely to accept a request to hear the matter en banc. And particularly if the judges stick to the narrow issue of the lockout, an appeal to the Supreme Court would likely be rejected as that body would have no interest in hearing just one thread of the case.
On the other hand, if the panel were to reverse its prior thinking unexpectedly, that would mean the lockout was lifted. Under that scenario, the NFL would probably play the 2011 season under the same rules that governed the 2010 season, and negotiations on a collective bargaining agreement would resume.
Whether that process ever ends amicably remains unclear. Players, including Saints quarterback Drew Brees, have used increasingly barbed language as the lockout continues, accusing the owners of offering no elasticity at the bargaining table. Intermittently since March, federal judges have ordered the two sides to return to negotiations, but they have proved fruitless. On Thursday, word leaked the sides were talking yet again outside of Chicago, although "to characterize it as progress might not be accurate," a source told The Associated Press.
Indeed, a terse joint statement offered no indication of progress.
"The parties met pursuant to court mediation," it read. "Owners and players were engaged in confidential discussions before Chief Magistrate Judge Boylan. The court has ordered continued confidentiality of the mediation sessions."
NOLA.com
The National Football League is at legal loggerheads with its players, and the 8th Circuit Court of Appeals in St. Louis is hearing the case. The 2011 season could hang in the balance.
Officially, the case at hand is slotted as Tom Brady et. al. v. the NFL. It is but one of three legal balls in the air right now, but for a variety of reasons its adjudication may prove decisive. The court could rule to either lift the owner-imposed lockout, a decision that would presumably green-light the 2011 season; allow the lawsuit and the lockout to continue; or toss out both the lockout and the lawsuit. Here is how the field is set on the eve of battle.
The players
Three judges will hear and rule on the case, the same panel that voted 2-1 last month to stay a district court injunction against the lockout. For those keeping score at home, the two judges who sided with the league and voted to lift the lockout injunction, Duane Benton and Steven Colloton, were appointed by President George W. Bush; the lone dissenter, Kermit Bye, is a Bill Clinton appointee.
Arguing before them will be a pair of former solicitor generals: Ted Olson for the players, and Paul Clement for the owners. Both served as the government's top lawyer before the Supreme Court under Republican administrations and are reportedly close friends, although they have found themselves on opposite sides of other headline cases. Olson, whose wife was killed in the plane that crashed into the Pentagon on Sept. 11, 2001, recently fought against a California initiative banning same-sex marriages, while Clement recently resigned from King & Spaulding, an Atlanta firm, when it decided to drop the House of Representatives as a client on behalf of the Defense of Marriage law.
Olson will be joined by David Boies, a celebrated trial lawyer perhaps best known for his lead role on the losing side in Bush v. Gore after the 2000 presidential election.
Gabe Feldman, a Tulane University law professor and sports law expert, did not cite the judges' political resumes, but he believes the ultimate decision will break along the same 2-1 lines.
"In some respects the writing is on the wall -- it would be a significant surprise if they came to different conclusions," Feldman said. "I'd be surprised if the judges change their mind because it is a purely legal issue. This is just all about how three judges determine federal statutes."
Feldman, who will serve as a legal analyst on the NFL Network today, agrees the hearing will be crucial.
"I think both sides recognize this is the last big legal battle," he said.
The case
Absent any evidentiary bombshells, the case hinges chiefly on the judges' take of the NFL's argument. This is three-pronged and has not changed since District Judge Susan Nelson rejected all of them when issuing her injunction against the lockout.
First, the NFL argues that the federal Norris-LaGuardia Act makes the lockout legal. Lockouts are an accepted tactic in labor disputes and as such cannot be judged prejudicially, according to the league's briefs, and the Norris-LaGuardia Act was designed to remove anti-trust courts from labor disputes.
In lifting the injunction, Benton and Colloton indicated they found that argument compelling, and Feldman noted that alone provides a strong signal of how they will rule after today's hearing.
Should the 8th Circuit stick to that narrow ground, the most likely scenario would be the owners' lockout remains in force while the crux of the case -- the players' antitrust lawsuit against the league -- returns to Nelson and the district level.
But the appeals court could go further should it embrace the other two prongs of the NFL's brief, namely that the league's congressional exemption from anti-trust law means the players have no standing to bring suit and that the proper venue for deciding all this is the National Labor Relations Board, not a courtroom. If a panel majority accepts either of those arguments, it could throw the matter out of court.
In its most recent brief, filed May 26, the NFL urged the appeals court to take this additional step.
"This Court should reverse the District Court's improper injunction, but should also make clear that the solution to this dispute over terms and conditions of employment lies with the labor laws and not in the antitrust courts," the brief said.
On the surface, the third prong has the least chance of success. As Boies noted somewhat wryly in oral arguments before Nelson, no lawyer wants to come before a judge arguing the matter at hand is none of the court's business. But the core question of whether the players have standing to file the antitrust lawsuit may have more legs.
It also goes to one of the other legal balls floating around the labor impasse that began in March when the owners, unambiguously claiming the prior collective bargaining agreement made football less profitable for them than they think it should be, exercised their right to break away from the extant deal. When settlement talks went nowhere, the players disbanded their union, a step they believe allows them to operate as independent agents and thus file the suit.
The league, however, paints the union's dissolution as a sham, a tactic the players have used before while seeking to force the matter into the courts and away from the bargaining table. Consequently, the NFL has filed a complaint with the National Labor Relations Board, and the league's high-powered legal team maintains it is the board, not the federal court, that must rule on the topic.
But by all accounts that complaint floats in abeyance -- it as if, Feldman said, all other avenues have shut down while the case on the main stage runs its course. The same is true for a ruling by District Judge David Doty that the owners colluded to pool television money to cushion any financial hardships that might result from a lockout. Indeed, the players have maintained the owners have planned a lockout all along and therefore never negotiated in good faith before the prior labor agreement expired.
In theory, Doty could slap a fine of $100 million or more on the owners, but legal experts said the players would be hard-pressed to turn that ruling into cash that would give them a monetary lifeline if the lockout drags on, because the owners would appeal the ruling and the matter would wend the usual slow course in the federal judiciary.
Moving right along
That crawl has not afflicted the matter at hand today. In fact, the federal courts have fast-tracked the lawsuit. It is highly unusual for a case to be filed in March, and then go through district court and appeals rulings -- and then face another appeals court hearing -- in less than three months.
Feldman expects the quick pace to continue.
"It could be anywhere from two weeks to a month and a half," he said. "My guess is closer to two weeks, but it's all just a guess."
Similarly, it is unusual for the judiciary to take the documents in a case out of its cyberspace archive and make them available to all online in something close to real time, but that is what the 8th Circuit, citing enormous public interest, has done with Brady v. NFL. The court often mulls the propriety of executing a man, but such life and death issues apparently pale in the public's mind next to the question of whether professional football will be played as usual this fall.
And that timeline, should the 8th Circuit panel's 2-1 majority in favor of the NFL hold, looks shaky. Both sides are seeking leverage in the court, and the owners' share would rise considerably with a victory. That would mean the lockout continues, and the chances clubs could open training camp in July and play any sort of preseason schedule diminish.
The losing side would still have appeal options, but Feldman considers them long shots. Unless there is a particularly controversial element to the panel's ruling, or there exists a number of 8th Circuit judges who would likely dissent from it, the court is unlikely to accept a request to hear the matter en banc. And particularly if the judges stick to the narrow issue of the lockout, an appeal to the Supreme Court would likely be rejected as that body would have no interest in hearing just one thread of the case.
On the other hand, if the panel were to reverse its prior thinking unexpectedly, that would mean the lockout was lifted. Under that scenario, the NFL would probably play the 2011 season under the same rules that governed the 2010 season, and negotiations on a collective bargaining agreement would resume.
Whether that process ever ends amicably remains unclear. Players, including Saints quarterback Drew Brees, have used increasingly barbed language as the lockout continues, accusing the owners of offering no elasticity at the bargaining table. Intermittently since March, federal judges have ordered the two sides to return to negotiations, but they have proved fruitless. On Thursday, word leaked the sides were talking yet again outside of Chicago, although "to characterize it as progress might not be accurate," a source told The Associated Press.
Indeed, a terse joint statement offered no indication of progress.
"The parties met pursuant to court mediation," it read. "Owners and players were engaged in confidential discussions before Chief Magistrate Judge Boylan. The court has ordered continued confidentiality of the mediation sessions."
NOLA.com
