OT - Appeals Court Likely to Rule for the NFL Lockout to Continue

Maybe I'm alone here but as long as I have football on Saturdays I'll be alright.

Yes, that and the fact that we've known this has been coming for at least two years.

Without going too far into it, I watch an awful lot of appellate oral arguments. While that may in fact be the result, going by who is asking questions is not a good way to predict. Some judges just have a better grasp of certain areas of law and know which questions to ask. Some judges simply don't ask questions. (Clarence Thomas hasn't spoken in court for five years.)

There better be something in the fall!

Although I am a college football fan, it would still be disappointing if the 2011/12 season was canned. Both college and pro football are highly entertaining.

 

But I thought this was the year that the Lions were gonna make the playoffs!!!

 

awww hamburgers.

I'm new to the legalities of lockouts...is there anything preventing the players from just forming their own league (like the AFL)?

This is a really solid article from the National Law Journal explaining the legal issues and arguments in the case. I apologize for the copy & paste of an entire article- the article is only open to (free) subscribers. If a mod wants to drop it, by all means. Additional apologies for the lack of formatting (ipad). All-Pro quarterbacks Tom Brady, Drew Brees and Peyton Manning will play defense in St. Louis on June 3 as they face National Football League owners in a legal challenge that could decide the fate of the 2011 season. The players are defending on appeal a district court's preliminary injunction halting a lockout imposed by the owners. The lockout came after negotiations on a new collective-bargaining agreement fell apart, and players decertified their union. In Brady v. NFL, the players contend the lockout violates federal antitrust laws. Ten players in all are listed on the complaint, chosen because they collectively represent all of the subclasses — players under contract (like Brady), free agents (like Manning) and rookies (like Von Miller). A three-judge panel of the U.S. Court of Appeals for the 8th Circuit will hear arguments. The judges recently signaled that their sympathies may lie with the owners, ruling, 2-1, on May 16 to stay an injunction pending the outcome of the owners' appeal. The majority said the owners' arguments that the injunction was illegal were likely to succeed. However, the game is not over yet, said sports law scholars, many of whom agree that this legal fight, involving the intersection of antitrust and labor law, may be the most complex labor battle in American sports history. "What makes it so difficult is that the traditional rules and roles in antitrust and labor law don't apply in this context," said Robert Boland, an antitrust and labor law expert at New York University's Preston Robert Tisch Center. "Talk to management-side lawyers and tell them their union was going to decertify, and they would throw a party; they'd never protest it as done here," Boland said. "Second, in most antitrust situations, you never have management arguing that labor law is important. You've never had both these issues come up together in sports. Then you also have to balance the whole equity of any public interests that might be involved." At the courtroom tables for both sides will be their veteran, first-string lawyers and two all-stars. The league owners have long-time counsel Gregg Levy of Covington & Burling and Daniel Connolly of Faegre & Benson. David Boies of Boies, Schiller & Flexner also was signed for the dispute. On the players' side are Jeffrey Kessler of Dewey & LeBoeuf and James Quinn of Weil, Gotshal & Manges, with experience representing nearly every sports union. At the court lectern will be two former solicitors general of the United States: For the players, Theodore Olson of Gibson, Dunn & Crutcher, and for the NFL owners, his successor in office, Paul Clement of Bancroft. "Most sports cases never get to a decision on the merits," Boland said. "They usually begin as a battle about who has short-term control, and so an injunction becomes of heightened importance in a sports case. This is largely a game of leverage." SEEKING LEVERAGE The 8th Circuit panel faces the difficult question of whether labor law or antitrust law prevails. The district court found that the players' case did not involve or grow out of a labor dispute, because the players were no longer represented by a union. The union had been dissolved. If the collective-bargaining relationship was over, the main labor law, the Norris-LaGuardia Act, did not apply. That was bad news for the league because, once the labor relationship ended, it could no longer claim the protection of the so-called "nonstatutory labor exemption" from antitrust liability. The players' antitrust suit could move forward under the Sherman Act. But if the Norris-LaGuardia Act doesn't require the presence of a union for a labor dispute to exist, the law strips the district court of jurisdiction to enter an injunction. The antitrust suit would be stayed pending a decision by the National Labor Relations Board. And in turn the NLRB would decide the league's unfair-labor-practice claim that union decertification was a sham designed to gain leverage. "The big issue is: When can a union call a halt to themselves effectively, if ever?" NYU's Boland said. "That's always been left open by the Supreme Court in Brown v. Pro Football. There is a moment, but not a lot of guidance in the cases." Leading up to the "moment" for the players was the NFL's decision in May 2008 to exercise its right to opt out of the last two years of the collective-bargaining agreement. The players and the league unsuccessfully negotiated for two years prior to the March 11, 2011, expiration date. As the expiration date drew near, the league indicated it might use a lockout of the players as a bargaining tactic. The players, believing they would be at a disadvantage if they remained unionized because the league could impose anti-competitive restrictions on them, disclaimed the union at 4 p.m. on March 11. They filed a lawsuit on the same day contending that the threatened lockout would violate federal antitrust laws. They sought a preliminary injunction against a lockout. The next day — March 12 — the league imposed the lockout, prohibiting players from, among other things, entering team facilities and receiving compensation or health insurance benefits. The league also filed the unfair-labor-practice charge with the NLRB, alleging a sham union decertification. The district judge, concluding that harm to the players from the lockout outweighed any harm an injunction would cause the league, imposed the preliminary injunction on April 25. "Getting an injunction is really hard," said Michael McCann, director of the Sports Law Institute at Vermont Law School. "From that vantage point, the league has the stronger argument because the threshold is very high, and there are case precedents that lockouts are legal. On the other hand, there has to be irreparable harm. The players have the stronger argument on who is harmed." LABOR V. ANTITRUST Bolstering the league's appeal are amicus briefs from the U.S. Chamber of Commerce, represented by Stephen Kinnaird of Paul, Hastings, Janofsky & Walker, and the National Hockey League, represented by Shepard Goldfein of Skadden, Arps, Slate, Meagher & Flom. The players draw support from 32 local elected officials and small businesses that host NFL games and draw revenue from their offshoots. Their brief was authored by Mark Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber. The Major League Baseball Players Association, National Basketball Players Association and National Hockey League Players Association also weigh in with a brief by their association counsels. The Sports Fan Coalition, represented by Daniel Shulman of Minneapolis-based Gray Plant Mooty, and the NFL Coaches Association by Barak Richman of Duke Law School, filed briefs as well. THE LEAGUE'S ARGUMENTS In the NFL appeal, the league's lawyer, Clement, argues first that the Norris-LaGuardia Act, "in broad and unmistakable terms," strictly limits injunctions in cases "involving or growing out of" a "labor dispute" and prohibits injunctions against any lockout. The origins of this case, he wrote, "self-evidently" grow out of a labor dispute. The validity of the union's decertification, he also argues, is "squarely within the heartland" of the NLRB. The case, he wrote, satisfies the U.S. Supreme Court's criteria for deference to the primary jurisdiction of an administration agency. Finally, Clement wrote that the nonstatutory labor exemption from antitrust laws applies and continues to apply "unless and until there is sufficient distance in time and in circumstances from the bargaining process." There was no such distance here, he argues, adding that the antitrust suit was filed within minutes of a negotiating session. The exemption can only be ousted by a valid union decertification and that, he wrote, cannot be decided without the views of the NLRB. THE PLAYERS' CASE Olson, the players' counsel, counters that the labor act does not apply in the absence of organized labor activity. The collective-bargaining relationship here ended when the union was decertified. The players' case also does not "grow out of" a labor dispute, he wrote: "The statutory definition of 'grow out of' makes clear that the phrase expands the universe of parties who can invoke the [Norris-LaGuardia Act], but does not expand [Norris-LaGuardia's] reach to cases where no 'labor dispute' exists." Olson argues that the NFL demanded the formation of a new union in 1993 as a condition of settlement of antitrust claims in order to obtain the benefits of the nonstatutory labor exemption. The players, he wrote, reluctantly agreed but insisted that the NFL waive any challenge to the validity of any future dissolution of the union. That waiver is expressly set forth in the most recent collective-bargaining agreement. The players voted "unequivocally and unconditionally" to end the players association's status as a union at 4 p.m. on the day the bargaining agreement expired, Olson wrote. "The dissolution was complete and effective, and it left the players unprotected by a union but at liberty to protect their rights under the antitrust laws." The two lawyers disagree on which party faces the greater harm if a lockout or an injunction prevails. Michael LeRoy of the University of Illinois College of Law said the 8th Circuit panel was correct in its analysis of why the league is likely to prevail on the merits. "The players' weakest argument is the sham nature of the decertification," he said. "This is a bald attempt to use negotiating in a federal court in place of negotiating at the collective-bargaining table. "The NFL has a strong legal case; their problem is jurisdiction. They're in the wrong court," he said, adding that he has researched 80 different published cases of this nature in professional sports and the district court in Minnesota is "far and away the most congenial to players associations and individual members." NYU's Boland said he thinks the district judge "got it right. But it's a very close call. It's almost like a law school problem: It's 49-49, and you can tip it based on your own thinking. The NFL's argument is not the most compelling argument but it's a legitimate one. If the union had been decertified for six months to a year, I don't think there'd be much doubt. While I'm not convinced it's a sham, there may have been formalities that weren't observed. We're in gray areas on both sides." Experts and other observers, however, agree the dispute will settle. "The main issue is whether it settles at a collective-bargaining table or at a table in the courthouse," LeRoy said. "If at the bargaining table, the NFL gets a good deal; if it settles in a courthouse, the players get a good deal. That's the issue." Courtesy: National Law Journal

And their near-suicidal lockout. Fan interest is hard to rebuild.

Of course, the players can always say forget it and sign up in the CFL. Great...er, great...er...

Anyway it's football. Kind of.

 I run a printing press that prints beer cartons for companies like Miller and Budweiser. Every year we make a large sum of money  printing several different  NFL team cartons. This morning I learned that due to the lockout the beverage companies may not be ordering these millions of dollars worth of cartons. Obviously you can't blame the beverage companies  but stuff like this does really upset me that  the NFL's minimum salary of $350,000 per year is just not enough. Not saying they haven't earned it but for crying out loud shut up and get out there and play some football or step aside and I'll do it for half that.

But it was looking like the Lions could compete this year