SBD/May 10, 2011/Leagues and Governing Bodies

NFL Lockout Watch, Day 60: NHL Files Court Brief In Support Of NFL




The NHL last night filed a friend of the court brief on behalf of the NFL at the 8th Circuit Court of Appeals, contending that a lower court’s decision to enjoin the football lockout would impair collective bargaining by allowing unions to decertify at the drop of hat and sue for antitrust violations. The filing came on the heels of the NFL’s first brief in its appeal of U.S. District Court Judge Susan Nelson’s decision to end the lockout, which is still in effect because of a temporary stay issued by the appeals court. The NFL argued that Nelson should have deferred to the NLRB, and the NFLPA’s decertification, or disclaimer, was not valid. By decertifying, the players were under labor law then allowed to sue for antitrust violations. The league also took some pointed shots at Nelson. The league has argued that because a federal labor law forbids courts from ruling on cases that are, or grow out of labor disputes, Nelson did not have jurisdiction. She rejected that interpretation, writing the league has tried to put a “temporal gloss” on the term labor dispute. In response, the NFL in its brief quoted the definition of “grow out of” from Random House Dictionary. The NFL also said of Nelson, “In the face of clear Supreme Court precedent, the District Court had no license to adopt its idiosyncratic interpretation of the Act.” The response from the players is due May 20, and the NFL will reply to that response shortly after. The appeals court, which has yet to rule on a permanent stay, has set June 3 oral arguments.

ON YOUR SIDE: The NHL famously locked out its players in ‘04-05, and next year could face a similar labor crisis. So it does not want to see unions allowed to decertify and sue for antitrust violations. The NBA is facing a lockout this summer. The league could not immediately be reached for comment on whether it too would file an amicus brief (Daniel Kaplan, SportsBusiness Journal). NFLPA Assistant Exec Dir for External Affairs George Atallah pointed out on Twitter last night the "irony of the NHL’s involvement in this matter, given that NFL labor counsel Bob Batterman engineered a lockout that once wiped out a full season of pro hockey." But PRO FOOTBALL TALK's Mike Florio noted Batterman's firm "didn't submit the brief." Rather, it was drafted by Shepard Goldfein, James Keyte, and Elliot Silver of Skadden Aarps Slate Meagher & Floam’s N.Y. office. Still, it is "entirely possible that Batterman encouraged the NHL to speak up in support of the NFL, before the NHL [ends up] facing a similar problem" (, 5/9).

INSIDE THE NFL'S CASE: In its legal arguments filed yesterday, the NFL "again noted that players would have claims for triple damages if they win their lawsuit alleging antitrust violations by the league." The NFL said, "Such damages would be more than adequate to remedy any possible harm caused by the lockout" (USA TODAY, 5/10). The NFL also argued that "lifting the lockout without a labor deal in place would cause chaos, with teams trying to make decisions on signing free agents and making trades under a set of rules that could drastically change under a new agreement." The league said Judge Nelson "failed entirely to consider the serious, immediate and irreparable harm the injunction posed to the NFL" and "vastly overstated both the harm to the (players) and the nature of that harm." Additionally, the NFL contends that the players "don't suffer because the lockout applies equally to everyone" (, 5/9). The brief "uses players’ own words against them; some have said they were enjoying the absence of off-season workouts" (N.Y. TIMES, 5/10).

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