NFLPA Decertification Emerges As Critical Issue In Federal Court Hearing
By Jay Weiner, Correspondent

Expressing some impatience with the lead attorney for the NFL, U.S. District Court Judge Susan Richard Nelson in today’s scheduled hearing of Brady v. NFL strongly hinted that she believes she has jurisdiction over the ongoing NFL lockout. In addition, Nelson said she was having “a hard time” understanding how she can “protect a lockout” in the absence of a players union. Those points were two of the key tea-leaf readings that emerged from the hearing in St. Paul -- which began this morning and was continuing at press time.

The members of the NFLPA decertified their union last month and charged that the league’s 32 owners have banded together, in violation of antitrust laws, to lock them out. The players are asking Nelson, who has been a federal judge for just four months, to issue an injunction to lift the lockout. That, in turn, could lead to a full-blown antitrust case and, the players argue, could put them back to work under “the status quo.”

The owners’ attorneys, led today in St. Paul by David Boies, argued in legal documents before today’s hearing and again this morning in court that the decertification of the union is “a sham” and that this labor dispute is a matter for the National Labor Relations Board, not Nelson’s federal courtroom. The NFL has a charge pending at the NLRB contending that the disclaimer is a sham.

James Quinn, the players’ attorney, told Nelson that “the collective bargaining process is over” and said that Nelson had “exclusive jurisdiction” over the matter.“ "The NFL wants to tie your hands … don’t do anything, and kick it to the NLRB.” That could take “weeks, months,” he said. Nelson acknowledged she has to balance the possible role of the NLRB with the “irreparable harm” that the players would feel if the lockout continues.

But Boies -- during two sessions before Nelson that took a total of one hour and 52 minutes -- said that just because the NFLPA no longer exists as a union does not mean the owners are instantly in violation of antitrust laws. He called the lockout “a timeout,” adding “It’s not an indefinite lockout.” Because the lockout grew out of collective bargaining, it should be permitted, he said.

At one point, Boies, who was the government’s attorney against Microsoft in a groundbreaking antitrust case and who represented Al Gore during the ‘00 presidential recount, challenged Nelson, declaring that “no court has ever said we’re going to enjoin a lockout. … To take that action would fly in the face” of the legislative history of labor law.

Nelson kept returning to an issue that seemed to trouble her: with the players no longer in a union, how could the owners lock them out? “Does that mean the players [after decertification] can strike?” she asked Boies with some disbelief in her voice. Later, she asked Boies, “Would you agree … it’s in my discretion [to rule]?” Boies continued to assert this was a matter for the NLRB.

The courtroom was packed with national news media, attorneys, curiosity seekers and a gaggle of current and former NFL players, including five of the named plaintiffs in the case: Vincent Jackson, Mike Vrabel, Von Miller, Ben Leber and Brian Robison. Tom Brady, the lead plaintiff, Drew Brees and Peyton Manning, also named plaintiffs, were not in the courtroom when the hearing began at 9:30am CT. With a brief recess, the hearing continued until 12:50pm, when Nelson recessed the court and planned to resume at 2:00pm with further arguments and discussions about consolidating the main Brady case with a secondary case brought by former players, with former NFLer Carl Eller as one of the named plaintiffs.