The NFL Friday morning maintained that the lockout of players should be allowed to extend for over a year, even if the players are not part of a union. The league’s attorney, Paul Clement, told the three-judge panel of the 8th Circuit Court of Appeals that even though the players renounced their union status, they should not have antitrust protections for at least six months. The 10 players who have sued the NFL under antitrust law roundly rejected that argument, claiming as soon as the union no longer existed -- the union decertified on March 11 -- the players were protected by antitrust laws. “The employer is deciding we will have relations with employees,” said Ted Olson, the players’ attorney. “We will have dessert but won’t eat salad. Or we will eat the dinner but not pay the bill.” But Clement said, “You can’t have multi-employer bargaining where one side can throw a light switch and say, ‘Gotcha.’” Most of the 69-minute hearing was taken up by dry debate over provisions of the Norris-LaGuardia Act and whether it would prevent the courts from lifting the lockout (Daniel Kaplan, SportsBusiness Journal).
IT WON'T BE EASY: Olson prior to Friday's hearing acknowledged that the players have challenges to overcome based on the language in the decision to stay the injunction of the NFL lockout, but that the case is not over. The 8th Circuit, in its decision granting the NFL’s request for a stay of U.S. District Judge Susan Nelson's ruling on May 16, wrote, “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." Olson last week said, “Yes, in a sense they preliminarily said, ‘We are likely to come to that conclusion,’ but they didn’t say we don’t want briefs and we don’t want an argument on June 3.” Olson noted the two judges in the majority 8th Circuit decision agreed with the NFL’s argument that the Norris-LaGuardia Act prevents a federal court from issuing an injunction when a labor relationship exists. The players argued in their briefs that it does not. Olson said the 8th Circuit judges “are going to conscientiously read the briefs, look at the views they preliminarily reached. But they preliminarily reached those conclusions without full briefing and without oral argument. Then when they have an opportunity to read the briefs ... and listen to the oral arguments on June 3rd, we are hopeful they will come to the conclusion, as we are convinced they should, that the Norris-LaGaurdia Act does not apply in this situation and there is no longer a labor union. There is no longer a collective bargaining agreement. The league itself terminated the collective bargaining agreement. And there is no longer collective activity. These (players) are individuals dealing with a cartel, not a labor union” (Liz Mullen, SportsBusiness Journal).
DECISION TIME: USA TODAY's Jarrett Bell notes given the "expedited nature of and public interest in the case," Indiana Univ. School of Law Dean Gary Roberts "expects a ruling could be issued within 10 days." It also is "possible a ruling won't come until July." Each side can then "appeal the ruling to the entire 8th Circuit panel" (USA TODAY, 6/3). On Long Island, Bob Glauber notes both sides "believe they will gain a major tactical advantage in talks if the decision goes their way." Most legal experts "believe the league will prevail based on a previous ruling" from the 8th Circuit (NEWSDAY, 6/3).
