Tag:NFL Lockout
Posted on: May 16, 2011 8:20 pm

The issue of irreparable harm in court ruling

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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Posted on: May 16, 2011 6:25 pm
Edited on: May 17, 2011 4:56 am

Permanent stay ruling could really hurt NFLPA

Goodell, SmithPosted by Josh Katzowitz

The lockout is on, and it’s going to stay on until at least June 3.

That’s the word from the Eighth Circuit Court of Appeals, which issued this evening a permanent stay to District Court Judge Susan Nelson’s decision to end the lockout.

The owners and players will argue their case in front of the appeals court June 3, so this decision isn’t a surprise (it’d be a bit awkward, if the judges didn’t grant the permanent stay, which meant the lockout was lifted, only to overturn Nelson’s decision, meaning the lockout was back on).

Once again, Judge Kermit Bye dissented on the judgment, the same as he did when the appeals court granted the temporary stay April 29.

As the court wrote, it had to consider granting the stay on four factors: 1) has the stay applicant made a strong showing that he is likely to succeed on the merits; 2) whether there will be irreparable harm without a stay; 3) whether other interested parties will be injured by the stay; and 4) where the public interest lies.

Ultimately, the appeals court believed that all those factors balanced together equaled a permanent stay.

Reading through the majority decision with my untrained eye, it doesn’t sound great for the players’ chances going forward.

When you read phrases like, “The district court reasoned that this case does not involve or grow out of a labor dispute because the Players no longer are represented by a union. We have considerable doubt about this interpretation of the Act” and “Our present view is that (the players’) interpretation of the Act is unlikely to prevail”  and (the biggest body blow of all) “we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout,” it can’t leave the NFLPA with a great feeling.

Bye dissented, writing the following in summary:

In sum, because I believe the Norris-LaGuardia Act does not apply in a situation where the Players are no longer represented by the union, I would conclude the NFL did not make the necessary strong showing of likelihood of success on the merits. Moreover, as it relates to the fourth factor, the NFL’s failure to make the necessary showing on the merits detracts from the NFL’s argument that the public interest favors the application of labor laws in the current context. At best, when considering the public interest in having a 2011 NFL season and, by extension, continuing with normal operations necessary for that objective, the public interest factor is a wash. Taken in conjunction with the balance of harms, which clearly favors the Players during the pendency of the expedited appeal, I would deny the NFL’s motion for a stay.

So, for fans and players, today’s ruling was not a good one, even though, like I said above, it wasn’t a surprise. It’s a big victory for the owners – it’s their first really big win in the court system, and now, the leverage is pointed in their direction – and it also means we’ll continue with this stalemate for at least another month.

Which means that you can forget about OTAs and offseason workouts. Training camp still could be held, but right now, that’s in real danger as well.

But perhaps more important than any of that, the players I think are in real trouble going forward. And so are the fans who want more football and less legal analysis.

UPDATED (7:13 p.m. ET): The NFLPA has released a statement in response to the ruling.

"The NFL’s request for a stay of the lockout that was granted today means no football. The players are in mediation and are working to try to save the 2011 season."

UPDATED II (7:48 p.m. ET): The NFL has released its own statement.

"It is now time to devote all of our energy to reaching a comprehensive agreement that will improve the game for the benefit of current and retired players, teams, and, most importantly, the fans. This litigation has taken the parties away from the negotiating table where these issues should be resolved. We remain confident that the appellate court will determine that this is a labor dispute that should be governed by federal law. But the league and players, without further delay, should control their own destiny and decide the future of the NFL together through negotiation."

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Category: NFL
Posted on: May 16, 2011 11:56 am

Mediation has resumed...not that it matters

Posted by Andy Benoit

For what it’s worth, the owners and players went back to the negotiating table Monday, but only because it was already scheduled as part of the court order. Neither side is particularly interested in making a deal given that the issue will go to court June 3.

In fact, Steelers president Art Rooney admitted as much, telling Albert Breer of NFL Network on his way in, "We'd like to make progress, but it'll be hard to do. We have to wait to see what happens June 3."

No active players were in the negotiating room, though Mike Vrabel was scheduled to be on hand (his flight got canceled). The mediation is scheduled to last two days.

Meanwhile, Colts owner Jim Irsay took to Twitter and chimed in on the issue (Irsay has not directly taken part in the negotiations thus far). “Jeff Saturday and I could get this thing done, on cocktail napkins, over a long lunch at Rick's Boatyard..it's not that hard!”

He also added, “Everyone's so damn serious, suits, briefcases, lawyers! Let's put on jeans n golf clothes, players/owners remembering we're friends, hang a little.”

Hear, hear!

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Category: NFL
Posted on: May 13, 2011 6:07 pm

No decision from the Eighth Circuit today

Posted by Josh Katzowitz

The NFL’s lockout will continue into the weekend.

The Eighth Circuit Court of Appeals won’t render its decision on whether to lift a temporary stay on Judge Susan Nelson’s ruling for the league to end the temporary lockout. So, the NFL is still in a lockout that has become much less temporary.

"There’s nothing unusual about the way the 8th Circuit is behaving,’’ University of Illinois law professor Michael LeRoy told the St. Louis Post Dispatch. "They sort things by level of emergency, but they don’t sit there and say, ‘Oh my gosh, the football season’s in peril.’”

Fair enough. But I know a bunch of football fans who would disagree on LeRoy’s definition of “emergency.”

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Category: NFL
Posted on: May 11, 2011 8:51 am

Dolphins hack at five-figure salaried employees

Posted by Josh Katzowitz

In a blow to the NFL’s middle class, the Miami Herald reports some bad news for the day-to-day Dolphins employees – namely, substantial pay cuts.

During a Tuesday afternoon organization meeting, team executives blamed the lockout for the need to cut the salaries of those making $75,000 by 20 percent, those making between $50,000 and $74,999 by 15 percent, and those making less than $50,000 by 10 percent.

Apparently, the employees’ salaries will return to normal levels when the lockout ends, but there’s a big question on whether the Dolphins will return lost wages to the employees.

Reached by the paper, team spokesman Harvey Greene said, “We’re a private company. We don’t comment publicly about our internal practices.”

More from the Herald:

During the meeting, the team blamed lagging season ticket sales – basing those struggles on the lockout rather than 2010’s dismal team performance – for the need to slash salaries, according to sources.

In the wake of the news, blame is being tossed around internally among employees, causing a clear decrease in employee morale, sources said.

Yes, I would imagine so. And it’s yet another reason to hope for a speedy end to what has been a pretty disastrous lockout, because this decision is pretty shameful.

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Category: NFL
Posted on: May 10, 2011 10:07 am

Some players to modify child support payments

Posted by Josh Katzowitz

With so much talk about how the lockout affects the NFL owners, players and fans, there’s a rather large group who could be losing out in a big way if the lockout continues. As Bloomberg News, via the San Francisco Chronicle, points out, NFL and NBA players are lining up to try to lower the alimony and child support that they pay to their ex-wives and former partners.

One attorney, Howard Rudolph, told the news service that he’s working on modification requests for NFL players, saying that if an industry is in trouble, like the NFL, the workers can’t meet their obligations and must modify their payments.

And when I think of an NFL player who owes a great deal in child support, my mind automatically springs to Jets CB Antonio Cromartie, who has nine children by eight women and who needed an advance on his salary last year in order to meet his court-ordered obligations.

"The money I get from him is definitely important," said Tina Julian, whose 2-year-old is Cromartie’s biological son. "Something would have to change."

One player who can make his payments, the news service reports, is Raiders RB Darren McFadden, who has three children by three women. McFadden in 2008 signed a six-year, $60 million deal with $26 million guaranteed. I also imagine McFadden could name all of his children as well, as opposed to you know who ...

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Posted on: May 9, 2011 7:53 pm

The NHL gets in the middle of Brady v NFL

Posted by Josh Katzowitz

The NFL has a friend in the NHL.

That’s why the National Hockey League has filed an amicus curiae brief (a friend-of-the-court brief) to support the NFL in its appeal to the Eighth Circuit Court of Appeals in its judicial fight against the NFL players.

We already told you about the brief the NFL submitted to the Court today and all the points the owners wanted to make as it tries to convince the three judges to overturn Judge Susan Nelson’s decision to end the lockout.

Today, the NHL – which, for the record, locked out the players for the ENTIRE 2004-05 season (counsel Bob Batterman also worked with the NHL then and works with the NFL now) – states the following:

(The NHL) has a direct interest in ensuring that the determination of terms and conditions of employment for NHL players is the product of a bona fide labor process rather than the "lever" of potential antitrust liability. … Yet, under the district court's decision and rationale, a group of employees can, at any time and for any reason, insinuate the antitrust laws into the dynamics pursuant to which new terms and conditions of employment are negotiated and determined. All a union has to do is have its members "disclaim" union representation, simultaneously reconstitute itself as an employee "association," and then ask the court to immediately enjoin any joint labor activity of the employers (e.g., including the implementation of a lawful lockout) by filing a treble damages antitrust complaint and a motion for preliminary injunction. The NHL respectfully submits that this cannot be the state of the law.

In other words: the NHL is spouting the NFL line about how the only way to get a new CBA complete is through collective bargaining and not through the judicial system.

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Category: NFL
Posted on: May 9, 2011 6:24 pm

NFL argues why the District Court was wrong

DeMaurice Smith Posted by Josh Katzowitz

The NFL filed a 61-page brief today with the Eighth Circuit Court of Appeals to argue why District Court Judge Susan Nelson was wrong to authorize an injunction against the NFL owners’ lockout and why that lockout should be put back into place.

Here are some of the key arguments from the owners’ team:

- Nelson was wrong because she exceeded the restraints of the Norris-LaGuardia Act, which bars federal courts from issuing injunctions against certain types of labor disputes. Basically, the owners’ counsel writes that the federal court simply didn’t have the jurisdiction to end the lockout.

-The District Court was wrong to allow the injunction before the National Labor Relations Board had a chance to rule on the issue of whether the NFLPA’s decertification was a violation of its obligation to collectively bargain in good faith.

-The District Court erred by failing to recognize that the “plaintiffs’ antitrust claims are not barred by the nonstatutory labor exemption."

And oh yeah, also the decertification of the NFLPA as a union is a sham writes the owners, because when the NFLPA used the same maneuver in 1987, it was based on the NFPLA’s assertion to the court that its disclaimer “was permanent and irreversible, and not a bargaining tactic.”

They also point to the fact that the NFLPA secured the players’ permission during the 2010 season to decertify if the NFLPA decided that was the correct course to take.

Writes the owners’ team: “Countless statements of NFLPA representatives, both before and after March 11, confirm that its current 'disclaimer,' the result of a conditional authorization, is a tactical ploy. The NFLPA is not permanently abandoning collective bargaining, but instead is attempting temporarily to disclaim its union status in hopes of increasing its members’ bargaining leverage by subjecting the NFL to antitrust suits over terms and conditions of player employment.

"Repeated statements from plaintiffs and other leaders of the NFLPA indicate that the disclaimer was not made in good faith and that it is not unequivocal. For example, the President of the NFLPA stated that “the whole purpose [of disclaimer] is to have that ace in our sleeve. … And at the end of the day, guys understand the strategy, it’s been a part of the union strategy since I’ve been in the league ….”

The players’ response is due May 20.

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