Tag:Susan Nelson
Posted on: July 8, 2011 10:43 am
Edited on: July 8, 2011 12:44 pm

BREAKING: Court of Appeals rules in favor of NFL

Posted by Josh Katzowitz

Update (12:35 pm EST): The NFL and NFLPA issued a joint statement on the court's ruling of the lockout, making it pretty clear that things are not too drastically altered by the ruling.

"While we respect the court’s decision, today’s ruling does not change our mutual recognition that this matter must be resolved through negotiation. We are committed to our current discussions and reaching a fair agreement that will benefit all parties for years to come, and allow for a full 2011 season."

That's exactly what everyone wants to hear from the two sides. Hearing/seeing and doing are two different things, though.


The U.S. Court of Appeals for the Eighth Circuit has made its ruling: The lockout put in place by the NFL owners is legal.

Which is bad news for the NFLPA.

Just like the rest of its rulings in regards to the Brady v NFL case, the Eight Circuit was split in its decision. Judges Steven Colloton and Duane Benton ruled in favor of the NFL, while Judge Kermit Bye dissented. Read the entire ruling right here (.PDF).

The ruling was not a surprise, especially based on what the judges wrote in their permanent stay ruling in May. The timing was pretty shocking, though, especially since it seemed like the two sides were getting closer on a deal for a new CBA.

How this ruling will affect the lockout is unclear at this point, but if the owners wanted some (but, really only some) leverage, now they have it.

Here are a few keys from the ruling:

- When the NFLPA decertified, the association claimed that the NFL could not go ahead with the lockout, because there was no union anymore -- basically the players claimed the owners couldn’t keep out a bunch of independent contractors. The Eighth Circuit, though, disagreed that the NFLPA could decertify for that reason.

Writes Colloton:
The text of the Norris-LaGuardia Act and the cases interpreting the term “labor dispute” do not require the present existence of a union to establish a labor dispute. Whatever the precise limits of the phrase “involving or growing out of a labor dispute,” this case does not press the outer boundary. The League and the players’ union were parties to a collective bargaining agreement for almost eighteen years prior to March 2011. They were engaged in collective bargaining over terms and conditions of employment for approximately two years through March 11, 2011. At that point, the parties were involved in a classic “labor dispute” by the Players’ own definition. Then, on a single day, just hours before the CBA’s expiration, the union discontinued collective bargaining and disclaimed its status, and the Players filed this action seeking relief concerning industry-wide terms and conditions of employment. Whatever the effect of the union’s disclaimer on the League’s immunity from antitrust liability, the labor dispute did not suddenly disappear just because the Players elected to pursue the dispute through antitrust litigation rather than collective bargaining.
- But the court raised an interesting issue in regards to free agents and rookies not under contract. Basically, the majority opinion writes the NLGA does not cover people who are not employed because there is no employer-employee relationship. If the rookies had signed a contract, then they could be locked out. But perhaps not now.

Instead, Judge Nelson would have to hold hearings with witnesses (and with cross-examination) in order to determine where the NFL could legally lockout those free agents and rookies.

Since the Court rules that Nelson didn’t consider the potential irreparable harm to free agents and rookies in her reasoning for lifting the lockout, the Court invalidated her ruling. And then remands the whole thing back to Nelson.

- The player did get back some leverage when the court expressed “no view on whether the League’s nonstatutory labor exemption from the antitrust laws continues after the union’s disclaimer.”

So, that might be something for the NFLPA to argue at some point. Is the NFL really exempt from antitrust law? The trade association could move ahead with that part of the case, which could be a worry to owners.

Initially, the court ruling sounded really bad for the players, but after looking through it all, it’s not quite all ice cream and sunshine for the NFL.

- Bye gets off a pretty good zinger in his dissent:

Through its holding in this case today, the majority reaffirms the wisdom of the old French saying … : “the more things are legislatively changed, the more they remain the same judicially.” … Despite the repeated efforts of the legislative branch to come to the rescue of organized labor, today’s opinion puts the power of the Act in the service of employers, to be used against non-unionized employees who can no longer avail themselves of protections of labor laws. Because I cannot countenance such interpretation of the Act, I must and hereby dissent.”
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Posted on: July 4, 2011 6:46 pm
Edited on: July 4, 2011 8:35 pm

Report: Retirees to file suit vs NFL, NFLPA

Posted by Josh Katzowitz

As the NFL owners and the NFLPA prepare to return to the negotiating table after the three-day weekend, it seems their lives are doomed to become more complicated. That’s because the The New York Times is reporting that the group of retired players involved in the Brady v. NFL case is set to prepare a complaint against the players and owners.

From the Times:

The class-action complaint, to be filed in Federal District Court in Minneapolis against the teams, the league, the players named in the Brady v. N.F.L. lawsuit and DeMaurice Smith, the head of the N.F.L. Players Association, asserted that the sides were violating antitrust laws by negotiating settlement terms that improperly encompassed the rights of retired players in the time since the N.F.L.P.A. renounced its union status.

The complaint says that the current players and the association, along with the N.F.L., “are conspiring to depress the amounts of pension and disability benefits to be paid to former N.F.L. players in order to maximize the salaries and benefits to current N.F.L. players.”
And it says that while the N.F.L. is willing to commit additional money to retirees from within and outside the league’s salary cap, the union “has insisted that the sum within the salary cap be given to current players instead.”

The complaint will ask Judge Susan Nelson to issue an injunction to halt the talks between the owners and players regarding retired players’ benefits, and it asks for a declaration that the NFLPA cannot represent those retired players in a new CBA settlement or for other litigation.

Basically, the alumni want to represent themselves in these talks.

“We feel we have a seat at the table, but we’re having the chair pulled out from under us,” Michael Hausfeld, the lawyer representing retired players, told the paper. “Both sides are saying, ‘We’ll decide what’s in your best interests.’”

As the Times points out, though, Nelson might be reluctant to add a third party to the mix so late in the negotiations, partially because it seems like the two sides might be closing in on a solution and partially because bringing somebody else to the table might make matters much more complicated.

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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 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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Posted on: April 27, 2011 9:45 pm
Edited on: April 28, 2011 11:47 am

Judge Nelson denies NFL's motion for stay

Posted by Josh Katzowitz

Now, the lockout is over for real. For now, anyway.

Liz Mullen of Sports Business Journal reports that Judge Susan Nelson, who lifted the lockout Monday when she ruled for the players in their request to end the work stoppage, has denied the NFL’s motion for a stay pending appeal.

That means, until we hear a ruling from the Eighth Circuit Court of Appeals - the appeal likely will be expedited, meaning we could hear a decision in just a few days - the NFL is open for business.

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Nelson explained her decision by writing that the NFL "has not met its burden for a stay pending appeal, expedited or otherwise." That means the owners will try to get the Eighth Circuit to grant a stay until its decision on the appeal is made. Until then, Nelson writes that the 2011 season should begom.

Interestingly, Nelson’s decision was released about 23 hours before the NFL draft, opening up a huge can of questions. Can teams now trade draft picks for players? Can undrafted free agents sign with teams? What about rookie camps across the NFL?

Now, the ruling doesn’t mean free agency begins right this very second (and Nelson said the teams were under no obligation to start signing). We still don’t know the rules of free agency – the NFL could revert back to the 2010 rules, but that isn’t known for sure. Until there are rules, there can’t be free agency.

But now, there should be little question that players are allowed to work out in team facilities.

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Category: NFL
Posted on: April 26, 2011 10:15 am
Edited on: April 26, 2011 10:58 am

Judge Nelson not ruling on stay issue immediately

Posted by Will Brinson

Following Judge Susan Nelson's ruling that lifted the lockout on Monday afternoon, the NFL announced that they would seek a stay from Nelson's court in order to prevent the necessity of a "league year" beginning immediately.

However, it appears as if Judge Nelson will not be ruling on the stay immediately; in fact, she's given the players until 9:00 AM CST on Wednesday morning to respond to the league's request for a stay.

This is somewhat surprising, as it seemed that Judge Nelson would quickly return a refusal to the league for their stay, and they would immediately appeal to the Eighth Circuit Court of Appeals.

Her decision, to be frank, seems to have caught everyone off guard, including the players. Though no one thinks Nelson isn't taking this matter seriously, the manner in which her ruling on Monday was worded gave a strong indication -- without actually tipping her hand, of course -- that she would not grant the NFL's stay. Which is why it seemed that such a ruling would be handled in a perfunctory manner on Tuesday.

Now it appears that the Court of Appeals will need until at least next week in order to get around to answering even the most expedited of appeals from the league.
Latest on Lockout

Which means that it's likely we get through the draft without any sort of trading and/or free agency movement. That's the stance the NFL is taking at least.

"We are going to proceed in an orderly way that is fair to the teams and players and complies with court orders," NFL spokesman Greg Aiello said. "Players are being treated with courtesy and respect at club facilities. We do not believe it is appropriate for football activities to take place until there are further rulings from the court.

"Under last set of proposals made to NFLPA, teams wouldn't even be into offseason programs yet. We need a few days to sort this out, as NFLPA attorney Jim Quinn indicated [Monday night]."

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The views expressed in this blog are solely those of the author and do not reflect the views of CBS Sports or CBSSports.com