SBD/May 2, 2011/Leagues and Governing Bodies

NFL Lockout Watch, Day 52: NFL In Court Filing Blasts Judge For Lifting Lockout

The NFL in a court filing with the 8th Circuit Court of Appeals this morning blasted the district court judge who last week ruled to lift the lockout for failing to conduct evidence hearings on whether the NFLPA’s decertification was valid, and whether players were truly suffering irreparable harm. The 8th Circuit could rule now at any moment whether to stay the injunction lifting the lockout on appeal, or turn down the NFL’s request. U.S. District Judge Susan Nelson ruled that because the union had decertified, the league under antitrust rules could not lock out the players. Labor laws require decertifications, or disclaimers, to be adhered to, so the NFLPA’s previous decertification in the early ‘90s could have been an issue. Nelson relied on an affidavit from former NFLPA Exec Dir Gene Upshaw, that the league had required the recertification to do a new labor deal. The league called this an “an inapt assertion contradicted by Judge Doty’s contemporaneous finding that the NFL had no role in the 'recertification.'” Doty oversaw the antitrust cases of the early '90s and later oversaw the now defunct CBA. Similarly, the league asked how Nelson could find the players were suffering irreparable harm when she only relied on their affidavits and did not take up the NFL’s lawyer’s request for a hearing.

PLAYERS BEING USED AS EXAMPLES: As part of these arguments the league for the first time began using individual players as examples, a tactic the league has largely avoided in the past. For example, the league used quotes from Chiefs LB Mike Vrabel and Cardinals K Jay Feely that suggested the NFLPA was still operating. And the league cited quotes from Ravens LB Ray Lewis and Patriots WR Wes Welker talking about how they were enjoying the lockout. “The ‘evidence’ of harm on which the District Court relied consisted primarily of the conclusory opinions of the NFLPA’s General Counsel and some player agents,” the league contended. “The NFL asked for, but did not receive, the opportunity to challenge those assertions on cross-examination at an evidentiary hearing. … Notably, not a single plaintiff attested to any harm being suffered.” From a big picture, the league contended that if the NFLPA were just able to disclaim and in the next moment file an antitrust lawsuit, collective bargaining across the country would be hurt. And the league looked to rebut arguments that by planning for a season, this was proof denying the stay would not irreparably harm the league while the appeal is heard. The league wrote it created the rules under threat of contempt, and free agency had still not been implemented. The league suggested that the 8th Circuit could rule by next month or early July.
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