SBD/April 26, 2011/Leagues and Governing Bodies

NFL Lockout Watch, Day 46: Nelson Not Deciding On Stay Until At Least Tomorrow

NFL owners expected Judge Nelson to rule in favor of the players
U.S. District Judge Susan Nelson will not decide on the NFL’s request for her to stay yesterday’s decision lifting the lockout until at the earliest tomorrow, ensuring the confusion surrounding the league will last even longer. Meanwhile, the counsel for the players sent her a letter yesterday after her ruling, seeking clarification, presumably related to when work rules must be imposed and player have full access to team facilities. Michael Gans, the clerk for the 8th Circuit Court of Appeals, where the NFL today was expecting to file an emergency stay motion, said once it is filed the court could take a few days to a week to decide. That means if Nelson does not stay the ruling, the lockout could be lifted through at least the early part of next week, and obviously longer if the appeals court does not issue the stay. Lawyers for the players are asking for the start of free agency very soon, something that would mean the league needs to impose work rules, which is does not want to do until it appeals to the 8th Circuit. If the league does not usher in free agency, the players could then contend collusion. There is always the chance Nelson could reverse course and stay her ruling tomorrow. However, that could run counter to her opinion yesterday that “the Brady Plaintiffs have shown not only that they likely would suffer irreparable harm absent the preliminary injunction, but that they are in fact suffering such harm now.” The players have until 9:00am CT tomorrow to file a reply to the NFL’s request for a stay, and Nelson in her order this morning she would take it under consideration. If Nelson did order a stay, it would be the players that could then appeal that ruling to the 8th Circuit. Meanwhile, the NFL has until 5:00pm tomorrow to file with Nelson its own clarification request. The counsel for the players wrote, “In granting the Brady Plaintiffs’ Motion for a Preliminary Injunction, the Court ordered…that the `lockout is enjoined.’ The Brady Plaintiffs seek clarification of the quoted language” (Daniel Kaplan, SportsBusiness Journal).

NFL TALKING ABOUT NEXT STEPS
: NFL.com's Albert Breer reports after Nelson yesterday ruled in favor of the NFLPA and lifted the lockout, the NFL held a 7:00pm ET conference call "for all league executives to discuss how to move forward." A source said that NFL ownership "remains united." Nelson's decision yesterday "was expected, with the league's legal team advising that their best odds for winning in court rested with the appeals court." The NFL's stance now "is that the lockout rules remain intact until Nelson, and then the 8th U.S. Circuit Court of Appeals, rule on whether or not the ruling will be stayed upon appeal" (NFL.com, 4/25). A source said that owners "had been bracing for a loss at this level, but are confident that the 8th Circuit will side with them." In L.A., Sam Farmer notes the 8th Circuit Court, based in St. Louis, is "known to be very conservative and often rules in favor of employers." Former National Labor Relations Board Chair William Gould said, "I can't think of a court in the United States it would be better for an employer to be before than the 8th Circuit" (L.A. TIMES, 4/26). One legal expert last night said that he "would be surprised if both Nelson and the appeals court denied the stay." His reasoning was that the league "would argue that irreparable harm couldn't be done to players in April and May if they were in limbo, and free agency, if it began in June, would still give the estimated 495 free-agent players time to find employment" for the '11 season (SI.com, 4/25).

WAITING FOR THE NEXT DECISION: In N.Y., Judy Battista notes if neither Nelson nor the 8th Circuit grants the stay, the NFL "will have to put rules in place that would allow players to return to work and free agency to open within days." If a stay is granted, however, the NFL "will remain dormant while owners appeal Nelson’s decision." That would "probably keep the league shut down until at least mid-June and perhaps into early July, about a month before teams usually open training camps" (N.Y. TIMES, 4/26). NFL player agent Wes Bridges said, "The stay is pretty much going to happen. I’d be shocked if that were not to happen. Not much has changed at this point" (N.Y. TIMES, 4/26). NFL Exec VP & General Counsel Jeff Pash said, "What the judge did was issue a preliminary ruling. It's subject immediately to be appealed and we're quite confident that our position will be sustained when we're in front of the 8th Circuit. Beyond that we intend to comply with court orders. We're going to do it in an orderly way" ("Mike & Mike in the Morning," ESPN Radio, 4/26). But ESPN legal expert Lester Munson writes a stay "might not happen in this case." A "quick reading of Nelson's 89-page opinion shows that the judge is concerned about the 'irreparable damage' the lockout would do to NFL players" (ESPN.com, 4/26).

WHAT IT ALL MEANS: In DC, Mark Maske reports sources on both sides of the NFL labor dispute said that "the players’ side believed Nelson’s ruling meant the free agent market technically was open Monday night, although the players’ side seemed willing to give the NFL a short amount of time to establish free agency rules." On the other hand, the league "believed the free agent market would not open before a decision on a stay of the injunction" (WASHINGTON POST, 4/26). Chiefs G Brian Waters, a member of the NFLPA Exec Committee, said that he "expected an identical set of rules this year." Waters: "We hope they at worst would install last year’s rules because it’s a set of rules we’ve played under before, and it’s not any worse for the players. We think that’s what they’ll do" (K.C. STAR, 4/26). But CBSSPORTS.com's Clark Judge cited a source as saying that the NFL "may not be bound by collective-bargaining rules here; that it may, in fact, devise a new system under which it operates." That "could be a system that is more restrictive to players and, frankly, less beneficial to them" (CBSSPORTS.com, 4/25).

THE LEADERS SPEAK: In a op-ed to the WALL STREET JOURNAL, NFL Commissioner Roger Goodell writes Nelson's ruling "may significantly alter professional football as we know it." By ruling in the NFLPA's favor and "blessing this negotiating tactic, the decision may endanger one of the most popular and successful sports leagues in history." Goodell: "A union victory threatens to overturn the carefully constructed system of competitive balance that makes NFL games and championship races so unpredictable and exciting" (WALL STREET JOURNAL, 4/26). Meanwhile, NFLPA Exec Dir DeMaurice Smith today said he was "certainly happy" with Nelson's ruling, but "we're in a world where there are a lot of other things happening in the world. ... To be in a state where frankly the National Football League is allowing this kind of chaos to occur, I'm not sure it's a great day for football in the long run" ("Mike & Mike in the Morning," ESPN Radio, 4/26). Smith yesterday said, "Those guys are just thrilled that football is back on. And I think once in a while we should just take a deep breath and take things for what they are. I’m happy for our players and for our fans. Today, those who love football are winners" (BOSTON GLOBE, 4/26).

SMITH STILL HOPING FOR NEGOTIATIONS: Smith said he hopes both the league and the players "will continue to engage in mediation to resolve the litigation that's outstanding." Smith: "I look forward to having those conversations sooner rather than later." Smith said the NFLPA has already reached out to the NFL for more discussions and "for anybody to say, suggest, argue or at the very least hint that we haven't had those conversations, to put a point on it, they're full of it and we know good, healthy dialogue occurs when people trade information and ... engage in good faith discussions" ("NFL Live," ESPN, 4/25).
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