U.S. District Judge Susan Nelson late last night, as expected, declined to grant a stay of her Monday decision to lift the six-and-a-half week-old NFL lockout. With the NFL Draft occurring tonight, it is unclear now whether the league will be forced to commence free agency and open its doors to the players. If it does not, players counsel Jim Quinn said, "They could face contempt for being in blatant violation of a Court Order." The league in a statement late last night said, "We are filing tonight a request with the Eighth Circuit Court of Appeals for a stay of the preliminary injunction pending our appeal. We believe there are strong legal and practical reasons that support a stay and that the Court of Appeals should have an opportunity to address the important legal issues that will be presented. We have asked the Court of Appeals to consider on an expedited basis both our request for a stay and the appeal itself. We are evaluating the District Court's decision and will advise our clubs in the morning on how to proceed." Nelson wrote that it was up to the NFL what economic system it wishes to install, and it was not her concern essentially whether that system ultimately violated antitrust laws. The players are also suing to lift most if not all free agency restrictions. "The NFL is only in the position of any defendant who has been accused of illegal action, but not (yet) found liable," she wrote. "The League can choose either to continue its allegedly-illegal behavior until judgment, or to modify its behavior." But she blamed the NFL for finding itself in this position because it opted out of the CBA early and knew the union might decertify. While things may sound gloomy, one team source said no one at the league is surprised and the clubs had been fully made aware that the league was likely to lose the first round. The league is confident of its appeal case, though of course so are the players (Daniel Kaplan, SportsBusiness Journal). Prior to Nelson's ruling last night, NFL Commissioner Roger Goodell said, "You have to prepare for every contingency" (NJ.com, 4/27).
MOTION FILED BY PLAYERS: Former U.S. Solicitor General Ted Olson, a new outside counsel for the 10 players suing the NFL, asked the 8th Circuit Court this morning to hold off issuing a temporary stay until 1:00pm ET tomorrow at the earliest, when he files the players’ reply to the league’s request for a stay. That would leave more time for the league to be potentially in violation of Nelson’s order lifting the lockout. The league last night filed its appeal to the 8th Circuit, requesting a temporary stay of Nelson’s order until the court can consider the NFL’s motion for a more permanent stay. In their appeal, the NFL asked for oral arguments to begin as soon as possible, and offered a briefing schedule that would run through May 31. The players have said the league will be in contempt today if it does not open for business. Michael Gans, clerk of the 8th Circuit, said he hoped to know by this afternoon the direction the judges will take on the temporary stay request. A three-judge panel has been chosen to hear the case, he said. Gans said he will be meeting with them today to see if they want their names publicly released. Much has been made of the heavy concentration of Republican appointed judges on the 8th Circuit, so much attention will be paid to who the judges are and if by chance there are Democratic appointed ones on the panel (Kaplan).
INCOMPLETE PASS: NFL.com's Albert Breer reports the NFL's 21-page motion to stay Nelson's ruling "includes a proposed timeline for the appeal, listing May 10 for the NFL's opening brief, May 24 for the Brady class' opening brief and May 31 for the NFL's reply brief, with oral arguments coming 'as soon as possible.'" In its proposal for Nelson to stay her earlier ruling, the NFL argued that the judge "had no jurisdiction and that she shouldn't make a decision while a complaint of bad-faith negotiation against the players was still pending with the National Labor Relations Board." The league also argued that it "shouldn't be subject to some of the antitrust claims leveled by the players with the collective bargaining deal barely expired." But Nelson "shot all of those down." The league's "plea to Nelson for the stay was also based on a purported fear that an immediate lifting of the lockout would result in a free agency free-for-all that could create a mess that would be difficult to undo should a new collective bargaining agreement lead to different rules." But Nelson called that an "incorrect premise" (NFL.com, 4/28).
ARE WE LIVE? In N.Y., Judy Battista notes players contend that free agency "should have begun soon after the injunction was granted," and it is "possible that the NFL will have to start free agency" during tonight's Draft. In her ruling last night, Nelson "gave no guidance about what rules the NFL had to put in place for operation." Those rules, "when the league opens, are likely to be similar to the ones used for the 2010 season, which had no salary cap or floor and which required six years of service for a player to become an unrestricted free agent." The NFL had argued that "forcing it to open for business by not issuing the stay could open it to even more antitrust charges -- and the possibility of damages -- from players, an idea that Nelson rejected" (N.Y. TIMES, 4/28). The league previously said that it "would not start the league year until it had the opportunity to seek a stay" (N.Y. DAILY NEWS, 4/28). In N.Y., Bart Hubbuch notes it was "unclear -- make that extremely unclear -- last night when the NFL would allow free agency to reopen and start conducting other player transactions again by what's known as starting the 2011 league year" (N.Y. POST, 4/28).
WHERE DO WE GO FROM HERE? A few NFL player agents told SportsBusiness Journal last night that they were continuing to call clubs and getting no answers. Agent Drew Rosenhaus, who represents about 150 NFL players, in a text message conversation last night, said just after Nelson ruled he was calling clubs about his free agent clients. Asked if he was getting a response, Rosenhaus said, "I'm calling them - I will let you know! Any more delays on their part would be ridiculous at this point" (Liz Mullen, SportsBusiness Journal). The NFL "has promised to give its teams guidance on what to do after another stinging rebuke" from Nelson (AP, 4/28). SI.com's Michael McCann writes teams "will most likely comply with Judge Nelson's order." Team officials "who refuse the order would be subject to penalty -- including monetary fines or even imprisonment -- for disregarding a court order" (SI.com, 4/28). ESPN's Adam Schefter said his "bottom line read into all of this is that the league has no choice, teams have no choice today, but to open their work out facilities to allow players to work out." Schefter: "They can't lock their weight rooms the way they did this week, and the league is going to do everything within its power ... to hold off on the transactions until Monday, where there would be less chaos with the draft starting tonight" ("Mike & Mike in the Morning," ESPN Radio, 4/28). Meanwhile, Comcast SportsNet Bay Area's Ray Ratto said of the NFL, "Their strategy all along has been, 'We're going to get to the 8th Circuit and that's where we win because those guys are pro business.' If they back off of that now because they think that Nelson's ruling has got teeth, then they may as well cave" ("Chronicle Live," Comcast SportsNet Bay Area, 4/27).
FLAGS ON THE FIELD: In San Diego, Tim Sullivan writes, "Legally, logically and emotionally, ownership’s strategy to date has been fundamentally flawed and terribly timed." Ownership is "entitled to seek concessions in any new" CBA, but doing so "in a business generating $9 billion in annual revenues conveys greed rather than need." Sullivan: "Doing so in a sport recently replete with examples of long-term health risks conveys greed compounded by callousness" (SAN DIEGO UNION-TRIBUNE, 4/28). In Newark, Steve Politi writes under the header, "Lockout Has NFL Off The Rails On A Crazy Train." On one side, Goodell "sent such a nonsensical letter to a newspaper after a judge ended his lockout, it should have been written in crayon." On the players' side, NFLPA Exec Dir DeMaurice Smith "refuses to admit that eliminating the draft -- an idea his lawyers support -- would be a disaster for the sport in every way" (Newark STAR-LEDGER, 4/28).
LAUGHTER IS THE BEST MEDICINE: NBC’s Jay Leno during last night’s episode of “The Tonight Show” aired a video called "NFL Labor Dispute Video Metaphor." Leno said, "A judge has made a ruling against the NFL owners which may potentially end the NFL lockout. You know, this whole thing, this legal thing, judges and owners and players, it's all very, very confusing. Well, here's a video metaphor to help explain what's going on between the owners and the judges and the players." The video showed an ant and a spider, while the announcer gave this play-by-play: "This hardworking ant represents the NFL players. This scary spider represents the NFL owners. This spider spins its web around the ant so it can't move. This represents the lockout. But the owners forgot one thing. There's a bigger spider in town, and that's the judge who sided with the players. Your move, owners." The video shows a larger spider, labeled "Judge," eating the smaller spider, labeled "NFL Owners" ("The Tonight Show," NBC, 4/27).
