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Volume 24 No. 156
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NFL Lockout Watch, Day 67: 8th Circuit Court Keeps Lockout In Place

The NFL won a significant victory at the 8th Circuit Court of Appeals last night, with the court keeping in place the lockout and strongly suggesting it would ultimately overturn a lower court’s decision declaring the lockout illegal. Nine active players sued the NFL, seeking a ruling the lockout was illegal because the union had decertified. The decision could shift the dynamics of the 67-day lockout, with the owners for the first time securing leverage. “In sum, we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits,” two of the three judge panel wrote. The third dissented. The two judges seemed to accept the league’s argument that the lower court, which ruled for the players April 25, was constrained by the Norris-LaGuardia Act from involving itself in a labor dispute. In fact, the two judges used harsh language to describe their opinion of the lower court, using phrases like “we have serious doubts,” “we struggle … to see,” and “raise serious questions.” One of the league’s points is that a period of time needed to elapse between the decertification of the union and the collective bargaining process before antitrust litigation could be filed. U.S. District Judge Susan Nelson criticized the NFL for putting a “temporal gloss,” on when a union can disband. In turn, judges Steven Colloton and Duane Benton wrote, “Given the close temporal and substantive relationship linking this case with the labor dispute between League and the Players’ union, we struggle at this juncture to see why this case is not at least one 'growing out of a labor dispute' -- even under the district court’s view that union involvement is required for a labor dispute." Judge Kermit Bye dissented, saying the decision puts any union in an impossible situation of never being able to decertify. A union cannot sue an employer for antitrust claims, but if it disbands, the employees can.

WHAT HAPPENS NEXT? The players brief is due in the 8th Circuit on Friday, with oral arguments scheduled for June 3, and a decision likely in the following month. It is unclear how this decision will affect the second day of mediated talks between the NFL and players in Minnesota federal court starting this morning. After the 8th Circuit ruled, the NFL put out a statement saying the dispute would be solved at the bargaining table. NFLPA Exec Dir DeMaurice Smith put out his own statement, saying the players have long prepared for a lockout (Daniel Kaplan, SportsBusiness Journal). In Boston, Greg Bedard notes a decision is "not expected for another 4-6 weeks." Whichever way the court decides, the NFL and the players "still would have enough time" to reach a new CBA, "start free agency, and open training camps on time in late July." But that is "only if the losing side does not appeal to the entire 11-judge panel at the 8th Circuit, or to the US Supreme Court." In the meantime, the NFL "won its first battle in this legal fight -- and it appears, for now, to be a big one" (BOSTON GLOBE, 5/17). In DC, Mark Maske notes if the two sides "don’t reach a negotiated agreement, it is difficult to predict how long the overall court process could take." But legal experts have said that the court "could take weeks, or longer, to rule after it holds the hearing June 3" (WASHINGTON POST, 5/17). ESPN's Tony Kornheiser said, "I think the owners want to play. I think the players want to play. ... But they also want to win. Both sides, owners and players, want to win and they've been presented with the possibility legally that they can win" ("PTI," ESPN, 5/16).

SCORE ONE FOR THE OWNERS: In N.Y., Bart Hubbuch writes the decision from the "decidedly conservative-leaning 8th Circuit is a stinging blow to the players, who until last night had been riding a wave of favorable court rulings since the lockout began in early March" (N.Y. POST, 5/17). YAHOO SPORTS' Doug Farrar wrote yesterday's decision was the "first real victory for the league in a court of law in a very long time" (, 5/16).'s Alex Marvez wrote under the header, "NFL Owners Get Big Win In Lockout Ruling" (, 5/16). ESPN's Adam Schefter said it was "a complete and total victory for the NFL owners." Schefter: "Keep in mind, this is what the NFL owners were targeting all along. ... The NFL has always wanted this to go on for a while. The league felt that the longer this went on the more it worked to the league's advantage because players do not get paychecks until the season starts" ("SportsCenter," ESPN, 5/16). Former National Labor Relations Board Chair William Gould suggested that the "specter of a loss in the 8th Circuit could wind up forcing the players back to the bargaining table" (L.A. TIMES, 5/17).'s Clark Judge writes the 8th Circuit Court "delivered the NFL a triumph so decisive it could force players into retreat." Until now, the players "believed -- and with good reason -- that their best interests rested with the courts, and until now they had the record to prove it." But yesterday's ruling "wasn't just a defeat for players; it was Gettysburg" (, 5/17).'s Mike Freeman wrote, "The players have been defeated. The owners have probably won. The only thing left to do in this ugly, brutal fight is for the owners to decide what to do with the carcass. ... Dragging this out only makes it worse for fans. This is now like the end of an election where a network has declared one side the victor and the loser refuses to accept it's over" (, 5/16).

Doty's ruling has become even more important
following ruling from appellate court
DOWN, BUT NOT OUT:'s Jim Trotter wrote while yesterday's ruling was a "major win for the owners, it won't be as significant a loss for the players" if U.S. District Judge David Doty "provides them with a financial war chest that allows them to ride out a lockout in 2011." For the players, Doty is "an ace up their sleeve." It is possible that Doty "wanted to wait and see how the circuit court ruled before announcing his ruling." An attorney after yesterday's ruling said, "His ruling is a lot more important now than it was an hour ago -- a heck of a lot more important" (, 5/16). In Philadelphia, Les Bowen wrote Monday's ruling by the 8th Circuit could be "good news, if you take the view that a strong legal indication either way pushes the sides closer to the bargaining table" (, 5/16). YAHOO SPORTS' Dan Wetzel wrote, "It’d be nice if the owners use this freshly won advantage to craft a reasonable offer, allowing a face-saving measure for the other side. It’d also be unlikely. The owners’ plan has always been to bleed the players financially and wait for them to crack. If this comes down to a battle of resources the owners are going to win. There’s never been any doubt of that" (, 5/16).

NICE TO SEE YOU AGAIN: In N.Y., Gary Myers reports court-ordered mediation resumed yesterday in Minneapolis, and U.S. Magistrate Judge Arthur Boylan "reportedly asked the league to make a new proposal, which it agreed to." Whether the new proposal "addresses the players' concerns is obviously the issue." There are "many issues to settle but this has always been about the money" (N.Y. DAILY NEWS, 5/17). Michael Hausfeld, lead attorney for the retired players, said that the players "have a proposal from the league in hand," but a source indicated that it is "nothing more than a couple pages of bullet-points providing a framework."'s Albert Breer reports the "expectation of most on Monday was that the sides were headed for St. Louis and the 8th Circuit, though they will return to Boylan's chambers for more mediation" today. The mediation was "expected to last two days," and yesterday included four NFL owners, NFL Commissioner Roger Goodell and Exec VP/Labor & General Counsel Jeff Pash and the NFLPA's Smith. Vikings LB Ben Leber was the "only player to appear." Chiefs LB Mike Vrabel, a plaintiff in the Brady v. NFL lawsuit, "was scheduled to, before his flight from Columbus was cancelled." Vrabel is "scheduled to make the trip on Tuesday morning for the second and final day of this part of the mediation" (, 5/17).

WHOSE SIDE ARE YOU ON? In DC, Sally Jenkins writes, "Should you find yourself drifting to the side of the players in the NFL labor dispute, it doesn’t mean you’ve gone all communist." There is a "pattern forming." In the past week, "we’ve seen a new stadium proposal for the Minnesota Vikings that amounts to a bilking of taxpayers." A judge is "preparing to punish owners for cheating the players in negotiated TV deals," and waiters are suing a company co-founded by Cowboys Owner Jerry Jones for "withholding tips from $35-a-day concession workers." Jenkins: "If you had any lingering thoughts that the owners have been misunderstood or that the lockout isn’t their fault, recent events may have cured you of any sympathy with them" (WASHINGTON POST, 5/17).