The NFL today intends to inform a federal judge that the recently decertified players association faces no irreparable damage from the lockout but that the league would if the judge were to grant the players’ motion to lift it, a source said.
Those arguments, coming on the same day the owners are in New Orleans for their annual meeting, will be contained in a legal brief due to U.S. District Judge Susan Nelson of Minnesota, who has set an April 6 hearing on the players’ motion to lift the lockout the league imposed on March 12.
 |
| Levy |
“As we will demonstrate to the court when we get to St. Paul, federal labor law bars the injunction sought by the union’s lawyers,” the league’s outside counsel Gregg Levy wrote in an e-mail, referring to the court’s location in Minnesota. He declined to discuss the matter further.
Levy’s comment suggests that the league will try to argue that the players association should not be allowed to decertify, which would allow it to sue the league under antitrust laws.
Whether that claim will make any headway is uncertain, but outside labor experts, including those who have represented athletes, said the players face a high bar to have the lockout lifted for other reasons. While many reports describe the injunction being lifted as a matter of course because of the legal problems in locking out a nonunion work force, some lawyers say it will not be so easy.
“Injunctive relief is a very special and pointed form of relief. It is granted only in very unique circumstances where there is irreparable harm, and harm that is not purely economic,” said Jonathan Shoebotham, a Thompson & Knight attorney in Houston who has frequently defended against injunction motions. For the players, he said, “Where is your noneconomic loss, other than your inconvenience of having to work out in high school gyms and not have access to medical and training staffs?”
To get an injunction, Shoebotham said, the players would also have to prove they have a high likelihood of succeeding with their antitrust lawsuit, that the league would not be hurt worse by lifting the lockout, and the public interest is served by the injunction.
 |
GETTY IMAGES
The NFL may contend players in the lawsuit, including Peyton Manning, haven’t suffered damages. |
The players, whose brief is due next Monday, may in turn argue they need to see the league’s financials to help them prove irreparable harm. The league’s hesitation to open its financial books was a critical issue in the breakdown of the talks earlier this month.
Another issue for the players is that even if Nelson is predisposed to grant the injunction, what economic system would she or the league impose, asked Mark Levinstein, a Williams & Connolly attorney who represents players. How can the judge impose the last economic system, he asked, if the players are claiming that system is an antitrust violation?
“The biggest hurdle on injunction might be trying to find out what the system is,” Levinstein said.
The NFL will also contend in the brief it plans to file that it will suffer irreparable harm, the source said, though the source declined to elaborate. The league may also contend that the nine NFL players listed on the complaint have not suffered any damages. Collectively they have earned $405 million in their careers, including Peyton Manning, who has reaped more than $145 million.
At the league meeting today in New Orleans, owners are expected to get a briefing from their new outside legal counsel, David Boies and Paul Clement, who are supplementing the work of Covington & Burling, the firm that, with Levy, has long represented the league.
