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Volume 21 No. 1
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League confident of victory in appeals court

While the NFL and counsel for players suing the league for antitrust violations were set to begin their third scheduled day of mediation overseen by a federal district court today, and with a judge’s decision still pending whether to lift the five-week-old lockout, the league has set its sights on the coming appeal.

Sources said last week the NFL believes Judge Susan Richard Nelson will likely decide this week for the players but that the league is confident the 8th U.S. Circuit Court of Appeals will overturn her decision. The fact that Nelson ordered the NFL into mediation when the league questions her jurisdiction, combined with some of the comments Nelson made during the April 6 oral arguments that were characterized as pro-player, has led some within the league to already look toward the next legal round.

“I don’t think the union will approach mediation seriously precisely because they view her as getting ready to issue an [injunction],” which would lift the lockout, a league source said days after the oral arguments. “They won’t compromise until after the 8th Circuit holds that [the league] was spot-on regarding the [Norris-LaGuardia Act].” That act is a Depression-era law intended to keep courts out of labor disputes, and Nelson told the league’s attorney on April 6 that she found it ironic the NFL would cite a law intended to protect striking workers.

The league’s position is that the law is not just for one side of a labor dispute. The players challenge the idea that this is a labor dispute because their union has now decertified. In addition, a player-side source did not sound as pessimistic about mediation, expressing hope that progress can be made.

Gary Roberts, dean of the Indiana University School of Law and former outside counsel to the NFL, wrote in an email, “If no settlement emerges and she rules on the injunction motion, it appears from her tone and rhetoric at the hearing (e.g., “you believe that your billionaire owners can lock out the players indefinitely?”) that she is cut from the same mold as [Judge] Earl Larson (Mackey case) and [Judge] David Doty (Powell, McNeil & White cases) before her and will side with the players. (It must be something in the water up there in Minnesota.) If so, then it will go up to the 8th Circuit Court of Appeals in St. Louis which is ... generally a much more conservative, pro-business court.”

Roberts is serving as the labor expert for NFL Network. The cases he cited are landmark cases between the NFL and players in which Minnesota judges sided with the athletes.

The NFL is correct that the 8th Circuit is more business-friendly than the Minnesota court, said John Goldman, litigation partner at Herrick, Feinstein, where he has a sub-specialty in sports litigation. The danger, he said, is that the appeal will be heard by only a three-judge panel, and what political cloth they are cut from is an unknown.

“They could miss the mark completely and get three judges who say what Judge Nelson said is in line with what Judge Doty did in the past and this is fine,” he said. “They are playing the odds, saying the predisposition of the judges likely to get the hearing on appeal will be more of a business-friendly one.”

If the three-judge panel turns down the NFL, the league could request what is called an en banc hearing, which would be a hearing before the entire 11-member 8th Circuit.

If Nelson does rule for the players this week, the league will ask her to stay the ruling. If she does not, the lockout would be lifted, and the league would then ask for the stay from the 8th Circuit.

Realizing the chaos that lifting and then reinstituting a lockout could cause, Goldman said, Nelson is likely to agree to a stay.

“She may realize that this is a case that was always going to be decided on appeal,” he said.

In the unexpected chance that the mediation she ordered bears fruit, Nelson could delay her decision to beyond this week.