Blog Entry

The issue of irreparable harm in court ruling

Posted on: May 16, 2011 8:20 pm
 
Posted by Josh Katzowitz

One of the factors used by the Eighth Circuit of Appeals in rendering its decision to permanently stay the lockout injunction today was the issue that District Court Judge Susan Nelson, who ended the lockout with the injunction, believed the players were the ones who were harmed the most.
NFL Labor


The appeals court could see both sides of the equation. It understood that the owners feel they’ll be harmed by the injunction because maintaining the lockout is key to their negotiating strategy against the players and the loss of leverage really hurts their cause – not to mention that opening up free agency would be harmful if the lockout is put back into place (the old “unscrambling the egg” analogy).

It also could sympathize with the players’ position in which they said they are being harmed by not being allowed to practice, learn their playbooks, work out at the team facilities, and take treatment by the team’s medical staffs – not to mention the 900 free agents whose employment status is up in the air.

Here’s how the majority opinion and the dissenting opinion felt about the issue of irreparable harm and which party – the owners or the players – were the ones being hurt the most.

Here are the opinions of Judges Steven Colloton and Duane Benton:

Both sides raise valid points, and this is a case in which one party or the other likely will suffer some degree of irreparable harm no matter how this court resolves the motion for a stay pending appeal. We do not agree, however, with the district court’s apparent view that the balance of the equities tilts heavily in favor of the Players. The district court gave little or no weight to the harm caused to the League by an injunction issued in the midst of an ongoing dispute over terms and conditions of employment. The court found irreparable harm to the Players because the lockout prevents free agents from negotiating contracts with any team, but gave no weight to harm that would be caused to the League by player transactions that would occur only with an injunction against the lockout. The court gave full weight to affidavit evidence submitted by the Players, although that proof was untested by cross-examination at a hearing. The district court’s analysis was conducted without the benefit of knowledge that this appeal will be submitted for decision on a highly expedited schedule – a circumstance that should minimize harm to the Players during the off-season and allow the case to be resolved well before the scheduled beginning of the 2011 season.


Here’s how the dissenting opinion saw the issue:

The irreparable harm alleged by the NFL “must be actual and not theoretical.” Moreover, the NFL cannot meet its burden if it demonstrates only economic loss, unless “the loss threatens the very existence of the [NFL’s] business,” because “economic loss does not, in and of itself, constitute irreparable harm."
Judge Kermit Bye also took issue with the NFL’s contention that the injunction harms the owners because it skews the advantage in collective bargain toward the players, writing, “Given that the parties will not likely return to the bargaining table prior to our resolution of this expedited appeal, at which point we will determine whether the district court properly enjoined the lockout, the NFL’s claim that it will suffer a loss of bargaining power in this interim period does not amount to ‘proof indicating that the harm is certain to occur in the near future’ for purposes of a stay pending appeal.”

And as far as who will suffer more harm – the players or the owners? Bye sided with the NFLPA:

Whatever harm may be said to befall the NFL during the pendency of the expedited appeal stands in stark contrast to the irreparable harm suffered by the Players. Regardless of the preclusion of free agency effectuated under the lockout and its influence on the Players, there can be little dispute that the off-season is an abundantly busy period for veterans and rookies alike. Even the brief stay occasioned during this expedited appeal will deprive the Players of “irreplaceable opportunities to develop their skills as football players and to otherwise advance their NFL careers.” … It follows that even the abbreviated harm fashioned by the stay will obviate the Players’  opportunities to engage in any of these off-season necessities, which could have dramatic repercussions to the Players’ careers in the long term.

Further, none of this harm can be adequately compensated by monetary damages.

Due to the irreparable harm presently incurred by the Players, compared with the limited harm, if any, suffered by the NFL, I believe the balance of harms weighs heavily in the Players’ favor. Consequently, I would require the NFL to satisfy a heavier burden of showing it is likely to prevail on the merits.


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Comments

Since: Dec 5, 2006
Posted on: May 16, 2011 9:25 pm
 

The issue of irreparable harm in court ruling

The NFL has claimed that being forced to operate without free agency rules or salary cap rules will bring irreparable harm which is well beyond the issue of economic damages. It shifts the league's parity entirely and allows the major market teams, who collect millions more in revenue, to sign whatever free agents they desire leaving the rest of the league in decline and with holes they cannot fill.

The players are the party who have precipitated this action in the courts. The players failure to convince a majority of the court hearing these issues means they must find new interest in the collective bargaining process, a process they have eschewed while seeking an advantage in court. The collective bargaining process under US labor laws already gives the employees an advantage over their employer. Now would be a good time to enter into that process in good faith and let go of the spin that they are all for playing football. Football as we have known it without the draft, salary cap and free agency rules will be permanently damaged. But this is the stated intent of the players in their anti-trust suit.

The irreparable harm doesn't have to be to the fans - you know, the folks who actually pay these billions you both are squabbling over?



Since: Oct 16, 2006
Posted on: May 16, 2011 9:19 pm
 

The issue of irreparable harm in court ruling

Lets face it, the only people being harmed in this dispute are the fans.  The owners are at fault for the outrageous salaries that they created.  When players were granted the right to free agency it was the greedy owners that overpaid for players to make their teams better and set the salary bar at what it currently is.  Then it was greedy agents that convinced the players to go to all extremes including sitting out an entire season for more money only to get a larger cut of the players' salaries.  Finally it was the players who listened to the agents and created a business like atmosphere on and off the field forgetting about the true meaning of the game which is entertainment for the fans.  The game has turned into a Las Vegas act instead of a football game with pregame and half time shows, fireworks after every score, throwback uniforms, and so on.  There's plenty of money to go around however everyone involved has become so greedy that each side wants the biggest slice and no one can come to a resonable compromise.  What these greedy people need is a reality check.  All three sides have collectively priced out the average fan from being able to enjoy a game live.  They even took away the ability for the poor fan to watch some of the NFL's games by broadcasting them on their own cable channel.  I hope that this lockout will create enough animosity among the fans that they stop supporting the NFL.  No fans, no revenue, no owners.  No revenue, no players, no agents.  NO PROBLEM!      
;



Since: Apr 14, 2007
Posted on: May 16, 2011 9:19 pm
 

The issue of irreparable harm in court ruling

The irreparable harm alleged by the NFL “must be actual and not theoretical.” Moreover, the NFL cannot meet its burden if it demonstrates only economic loss, unless “the loss threatens the very existence of the [NFL’s] business,” because “economic loss does not, in and of itself, constitute irreparable harm."


So why didn't the dissenting judge advise the player's claim should also be deemed invalid, as there is no promise that free agents will be offered new contracts.

Liberals, especially those that get a small taste of power love to abuse common sense and logic at every level. Such as this:

“Given that the parties will not likely return to the bargaining table prior to our resolution of this expedited appeal, at which point we will determine whether the district court properly enjoined the lockout, the NFL’s claim that it will suffer a loss of bargaining power in this interim period does not amount to ‘proof indicating that the harm is certain to occur in the near future’ for purposes of a stay pending appeal.”


Does he mean the court appointed bargaining that is going on right now? Is he even paying attention?

Almost as big of a transparent moron as judge Suzy Q.

Sometimes judges creep out of the backwoods of Minnesota and land in the court of appeals too it would seem.



Since: Nov 25, 2009
Posted on: May 16, 2011 9:16 pm
 

The issue of irreparable harm in court ruling

I could totally see Jerry Jones going "rogue" and pouring some of his wealth into a new league where his wallet would be the final destination of the league's net profit. 

As for the current superstars simply retiring (which I doubt they'd do)... the young guns would be more than happy to step into the void.  It would be funny to see the players form their own league.  I'm not certain they could cooperate well enough to pull that off.  They would have to take a huuuuuge pay cut because they will not be able to sell out the NFL stadiums without paying a hefty renter's fee.  Not to mention they would have to supply the money to run the league.



Since: Mar 22, 2007
Posted on: May 16, 2011 8:59 pm
 

The issue of irreparable harm in court ruling

So what would the NFL do if the playes said to hell with the NFL and their owners and started their own league? Or all the major stars decided to retire. 


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