Thread: Courtroom football begins: what will happen

Hmm A REASONABLE JUDGE LIKE IT!

Make peace, federal judge tells NFL players, owners

A jurist in Minnesota urges the parties in a labor dispute to seek mediation while she decides whether to impose an injunction that would end the lockout of players.


Reporting from St. Paul, Minn.

U.S. District Judge Susan Richard Nelson, in a hearing in St. Paul, Minn., urges NFL players and owners to make labor peace while she decides whether to impose an injunction that would end the lockout of players.

— A federal judge subjected the NFL to a series of difficult questions and maintained a skeptical tone toward its lead lawyer Wednesday as the league tried to defend its current lockout of players that threatens the season.

Inside an expansive federal courtroom that included a handful of players suing the league, U.S. District Judge Susan Richard Nelson told attorneys from both sides they are "at risk" and urged them to try to make labor peace at the table of a federal mediator over the next "couple weeks" while she decides whether to impose an injunction that would end the lockout.


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Halting the lockout could allow players to sign free-agent contracts, and some legal experts speculate it will hasten cooperation to strike a deal.

NFL attorney David Boies made it clear he won't give in to the players just because Nelson might rule against the league, saying outside court, "This is the first quarter."

Asked which side he expects to initiate mediation talks — if there will be any at all — Boies said, "I'll let someone else answer that." If Nelson imposes an injunction on the lockout, the NFL is expected to take its case to the federal appeals court in St. Louis.

Players' attorney Jeffrey Kessler said outside court he will participate in mediation talks only as settlement discussions to the players' antitrust lawsuit against the league — Brady vs. NFL. That case includes star quarterbacks Tom Brady, Peyton Manning and Drew Brees, and Nelson will handle it along with an accompanying retired players' suit.

Players argue the best way to strike a new collective-bargaining agreement is to settle terms of the antitrust lawsuit that was filed when the players decertified as a union last month. The NFL wants the mediator to oversee plain collective-bargaining talks with the players, but the players fear if they do that, the owners will immediately say the players are unionized after all and that no antitrust violations have been committed.

"Would I do that?" Boies asked sarcastically outside court. "I don't think that's something they ought to worry about."

Nelson too pressed the attorney about the league's intentions to "lock them out forevermore. … There doesn't seem to be any ending," she said, a point players' attorneys raised in suggesting an unchecked NFL would work to withhold game checks and "punish" the players to induce an agreement more profitable for owners.

Players' attorney Jim Quinn told Nelson in court that she has the authority to impose the injunction because of "irreparable harm" that more than 800 unsigned players are suffering by not only missing paychecks and health benefits but being deprived of team-organized conditioning.

"It can be decided right here in this courtroom," Quinn said, rebutting the NFL's insistence that the union's questionable decertification should first be reviewed by the slow-moving National Labor Relations Board.

Boies pointed Nelson to a labor act he says bars federal courts from imposing injunctions on lockouts.

Nelson told Boies she has reviewed case precedent that supports her imposing an injunction, and said, "There is some bit of irony the [labor] act used to protect workers from strike-breaking judges should be used to protect the wealthy," referring to the owners.

Nelson, appointed in 2010 by President Obama, alerted the attorneys at the hearing's start that she had done extensive research on the case.

"We have a group of players who didn't want to be a union in 1993," Nelson said to Boies. "The players wanted to be protected and said [then] if the NFL wouldn't bargain in good faith, they'd decertify. I don't think [that] fits the model you're describing."

She then asked Boies how the labor act can "insulate a lockout" with no legal precedent to find.

Quinn told the judge the lockout is illegal.

Nelson urged the sides to get past their decertification-lockout stage and negotiate a deal for the sake of the "many people … affected.

"You have to figure out how to get to Plan C or D," Nelson said to Boies. "I'm just pushing you."

Afterward, Boies said he wasn't sure what to make of Nelson's scrutiny, but Quinn praised Nelson for handling the hearing "forcefully."

lance.pugmire@latimes.com

I'm gonna take a wild guess and say that she'll impose an injunction against the lockout. The players case for lifting it is stonger than the owners case for imposing it. But I also think the injunction will be stayed during an appeals process thereby dragging this on for another month or more.

It's pretty obvious to me that the courts do not want to decide this matter but will if forced to. In the long run the owners won't destroy the season and they lift the lockout themselves sometime this summer. Then they decide to play the season under 2010 rules which makes RFA's out of hundreds of guys who now think they are UFA's. Neither side get's what they want and won't until it's collectively bargained out.

This whole thing is becoming an excercise in futility and is as much about power and politics as it is about economics.

Originally Posted by soulman

I'm gonna take a wild guess and say that she'll impose an injunction against the lockout. The players case for lifting it is stonger than the owners case for imposing it. But I also think the injunction will be stayed during an appeals process thereby dragging this on for another month or more.

It's pretty obvious to me that the courts do not want to decide this matter but will if forced to. In the long run the owners won't destroy the season and they lift the lockout themselves sometime this summer. Then they decide to play the season under 2010 rules which makes RFA's out of hundreds of guys who now think they are UFA's. Neither side get's what they want and won't until it's collectively bargained out.

This whole thing is becoming an excercise in futility and is as much about power and politics as it is about economics.

Not sure "IF" she can do it, but really would love to see her impose a "mediation" and send both back to a room to work it out..

Originally Posted by dabears54

Not sure "IF" she can do it, but really would love to see her impose a "mediation" and send both back to a room to work it out..

As far as I know she can do it. All she has to do is suspend proceedings or her ruling until further negotations have taken place.

and this is the stuff that pisses me off from BOTH SIDES.. once lawyers involed get this kind of nonsense and bickering even about where to meet.. *&&*^&^ idiots... just meet and get it over and fire both sides lawyers

Letters detail how NFL, players differ on mediation process

The NFL and Brady class counsel in the case of Brady et al v. the National Football League et al submitted a total of four letters to the federal court in Minnesota on Thursday, discussing Judge Susan Nelson's suggestion that the NFL and NFL Players Association reenter mediation.

The final letter, from NFL outside counsel David Boies to Judge Nelson, referenced a Friday conference call between the sides to discuss how and where, and under whose authority, they are willing to resume mediation.

And that's where the primary differences in opinion are, with the NFLPA requesting that Judge Nelson appoint a mediator and holding the sessions in federal court, and the NFL asking for those sessions to return to the Federal Mediation and Conciliation Service, where the sides went through 16 days of mediation in late February and early March.

Nelson heard the NFLPA's case for an injunction to lift the NFL lockout on Wednesday, and took the arguments "under advisement," saying that it would be "a couple of weeks" before her ruling. She then proposed that, in the meantime, the two work out their differences in mediation.

The NFLPA came first with a letter from local counsel Barbara Berens, which addressed Nelson's offer to facilitate the discussions in federal court: "We think this is an excellent suggestion and are prepared to engage in such mediation without delay."
Berens also wrote, "Our agreement is, of course, contingent on the NFL defendants' agreement that they will not attempt to use this, our willingness to mediate, against the Brady class in some way, for example by arguing that such mediation efforts constitute "collective bargaining" or otherwise arise out of a "labor a relationship."

A letter from NFL general counsel Jeff Pash came next with the suggestion of returning to FMCS, saying: "After spending the better part of three weeks with us, they know the issues, they know the parties, and I think we all agree that they were effective at getting both sides to look openly at each other's positions and try to find solutions."

It offered "owner involvement" in such talks and added: "We understand that you will want appropriate assurances that the players will not compromise any legal position as a result of entering those discussions. We are prepared to give reasonable and appropriate assurances to that effect."

In a third letter, NFLPA outside counsel Jim Quinn replied directly to Pash by writing: "Your invitation to 'resume' discussions in front of Mr. Cohen makes no sense as collective bargaining between the NFLPA and the NFL is over."
Finally, in the fourth and final letter of the day, NFL outside counsel David Boies wrote to Judge Nelson reinforcing the NFL's desire to continue mediation under the auspices of the FMCS, emphasizing FMCS Director George Cohen's expertise in the area and his background with this case.

"Put simply, FMCS has a (16-day) head start over any other potential mediator," Boies wrote. "And given that time is of the essence, that is of great importance."

Boies added, "I would emphasize that we are not asking the players in any way to abandon their chosen litigation forum or to compromise any of their legal claims. In that light, we would respectfully request that the court consider using its good offices to encourage the players to resume" talks at FMCS.

Nelson received another letter Thursday accepting her offer of facilitating mediation, this one from a lawyer representing Hall of Famer Carl Eller and other retired players, whose case was combined with Brady et al v. National Football League et al.

Don't ya just love the way that lawyers and the court system just drags this whole process out? As to the arguement of where continued negotiations should take place I can see the angle from both sides. The owners see mediation through the courts as being a settlement of this lawsuit, not collective bargaining, and they want no part of that. The players feel that there is no reason to return to a mediation conference utilizing FCMS because they are no longer negotiating collectively as a union. They also believe that if 16 days of bargaining through this method left them a standoff then 16 more days of the same won't resolve the issues. Even FCMS mediator George Cohen might agree with this and has already as much as said so.

Here's another article on the case. http://www.chicagobears.com/news/New...?story_id=7719

April 7, 2011
Judge says ruling on lockout will take 'couple of weeks'


By: Albert Breer, NFL Network | Last Updated: 4/7/2011 11:25 AM



ST. PAUL, Minn. -- U.S. District Court Judge Susan Nelson said Wednesday that she will take the NFL and NFL Players Association's arguments "under advisement" but that she'll need "a couple of weeks" before she issues a ruling on the players' request for an injunction to lift the league-imposed lockout.
Nelson also advised the sides after the five-hour hearing that they should resume negotiations in the setting of federal court, where she said the risks presented because of the pending National Labor Relations Board case would be eliminated.


Ex-NFLPA executive director DeMaurice Smith leaves federal court in Minnesota."It seems to me both sides are at risk, and now is a good time to come back to the table," Nelson said.
Nelson said she'd be "glad to facilitate" further negotiations to settle the matter out of court and create a setting that would "protect both sides from the consequences" of what could be ahead.
"Litigation settlement discussions have been something that the Brady plaintiffs, the class counsel, have said they'd be willing to do from the beginning," NFLPA outside counsel Jeffrey Kessler said. "That's 'litigation settlement discussions,' that's what the judge is talking about, not collective bargaining, not collective bargaining mediation in Washington -- entirely different animal. That's up to the NFL. That's what she told them they should do.

"We're settling antitrust claims in a lawsuit, which could (lead) to a new system, like the Reggie White settlement did (in creating unrestricted free agency in 1993). But it's not collective bargaining."
The NFL said it prefers to return to the Federal Conciliation and Mediation Service office in Washington, D.C., where the sides went through 16 days of mediated talks before they broke down, leading to the March 11 union decertification and March 12 lockout.
"(A resolution) can happen, if we just get back to bargaining," said NFL outside counsel David Boies, who spoke before the judge for more than three hours in Wednesday's hearing. "The Federal Mediation Service, as I said before, these are the people who do it for a living, they do it in industry after industry. We ought to be taking advantage of that."
Nelson heard the cases of Brady et al v. the National Football League et al and Eller et al v. the National Football League et al, and she approved a motion to consolidate both. Hall of Famer Carl Eller, the lead plaintiff in the second case filed by retirees, former players and rookies, was present, and his group's attorney, Michael Hausfeld, took turns with NFLPA outside counsel James Quinn arguing against and rebutting Boies.
Many of the biggest names in the dispute didn't make the trip to Minnesota, with Commissioner Roger Goodell and general counsel Jeff Pash absent on the league side and named plaintiffs Tom Brady, Drew Brees and Peyton Manning not in attendance for the players.
Five of the 10 named plaintiffs in the Brady case did appear: Mike Vrabel of the Kansas City Chiefs, Ben Leber and Brian Robison of the Minnesota Vikings, Vincent Jackson of the San Diego Chargers, and Texas A&M linebacker Von Miller were joined in court by veterans Tony Richardson of the New York Jets and Charlie Batch of the Pittsburgh Steelers, members of the union's executive committee before dissolution.
NFLPA executive director DeMaurice Smith also attended the hearing, and the players, lawyers and officials arrived and departed together in a bus.
Nelson listened to arguments from lawyers for the players and the league, asking questions often and speaking politely but directly while acknowledging her difficulty discerning which components of the laws apply to this complicated case.
Nelson expressed some frustration trying to understand some of the arguments, mostly those made by Boies, but she oversaw a cordial process, telling the sides they did an "outstanding job." Both sides praised Nelson afterward for her thorough approach and intelligent questions.
As she began the hearing, Nelson urged both sides to stick to the issue of the injunction and not delve into the evidence previously presented in their briefs since all parties are up to speed on the information.
"You can assure that the court has done nothing else in the last few weeks," Nelson said.

Although the players' claim of suffering "irreparable harm" in a lockout is central to consideration in the injunction ruling, two other subjects -- the role of the NLRB and the interpretation of the Depression-era Norris-LaGuardia Act -- were predominant in Wednesday's hearing.
The league argued that the NLRB's ruling on whether union decertification was a sham should come before Nelson decides on the injunction and that the Norris-LaGuardia Act prevents a federal court from granting an injunction in a case "growing from a labor problem."
"They're financing this lawsuit," Boies said of the NFLPA. "They're saying, 'We're no longer a collective bargaining agent, but we're going to continue to do all these things.'"
The players tried to refute that by, first, defending the validity of the decertification and, second, arguing the Norris-LaGuardia Act was meant to protect employees, not employers.
"It's not some kind of tactic. It's the law," Quinn said of decertification, pointing to the players' unanimous participation in voting to approve the move. "It's what we're allowed to do."
Quinn pointed to the irony of owners using the Norris-LaGuardia Act to defend a lockout, and Nelson agreed. She sounded firm in her belief that the decertification is legal, pointing to court precedent in the last antitrust suit filed by players in the early 1990s.
"It's a big risk on their part, and they lose a lot by doing it," Nelson said.
But Boies cautioned afterward against reading too far into the scrutiny.
"I've been doing this for 45 years, and I've never been able to figure out from a judge's questions exactly where they're coming from," he said.
So now the sides wait, with the injunction ruling likely the next domino to fall. A ruling in favor of the players would force the NFL to open for business, but the league's argument is that it would be anything but business as usual in that scenario.
"One of the problems, as the court indicated, even if there was an injunction relating to the lockout, that wouldn't solve the problem of how you operate the league," Boies said. "So that really just delays the process. The underlying issues have to be resolved by collective bargaining.

"The fastest way for this to get resolved is for the parties to get back to good-faith negotiating."
Either side could appeal whatever Nelson decides.
Much of Nelson's ruling will come down to subjects covered in briefs filed by the league and players. Primary among those is the claim that the lockout is causing irreparable harm to the players.
Quinn, in closing, asked Nelson for a "quick ruling" to prevent more of that.
"We laid it out in our papers," Quinn said after court. "The fact is we have almost 900 players who are without contracts. They need to find jobs, they need to get on rosters, and every day they can't do that, they're suffering irreparable harm."

Nelson also could defer a decision until after the NLRB rules, which could take months, or declare the need to schedule another hearing to consider the evidence in the case before she rules.
That would be a loss for the players.
"All of this is delay, so they want to put pressure on us," Quinn said.
Boies said factual disagreements -- regarding the existence of the union, for one -- prove the necessity of another hearing. Boies took roughly double the amount of time to talk than the lawyers for the players did, partly because he was pressed so much by Nelson as she tried to grasp the argument that she has no jurisdiction in the case.

The Associated Press contributed to this report.

courtroom football, who is winning?

Judge Nelson hears case, first impressions Andrew Brandt

The regular season of courtroom football kicked off on Wednesday in the U.S. District Court in Minnesota (the Court). Judge Susan Nelson played the role of referee in a verbal gridiron match between the NFL and the Players. From the opening kickoff it was obvious that the Players — who have received favorable results in this forum since the Reggie White settlement in 1993 — clearly held the home field advantage.

Although not in the courtroom, I talked to those that were, including representatives of each side. It was also an interesting event that unfolded through Twitter (special kudos to Greg Bedard of the Boston Globe for his fine work).
Here are the important issues from Wednesday’s proceeding, the first of Brady v. NFL, and the frustrating aftermath of the “where to mediate”:

Nelson wants the case
Throughout the majority of the hearing, the NFL’s renowned litigator David Boies insisted that the Court is not the proper forum, at least not at this juncture. The NFL’s argument is twofold.

First, Boies argued that the Court should defer to the National Labor Relations Board (NLRB), since the NFL has an unfair labor practice claim against the NFLPA pending there. The NFL claims that the NFLPA engaged in “surface bargaining,” decertifying for tactical reasons and not in good faith, conduct prohibited by federal labor law. Boies also emphasized the fact that the NFLPA is financing this litigation.

Judge Nelson pushed back against these arguments, persistently firing questions to Boies as if to say, “this is my case.” As mentioned here, the NLRB moves at a turtle-like pace, providing additional ammunition Judge Nelson to exercise her discretion that the Court is the proper forum, not the NLRB.

Boies also contended that the Norris-LaGuardia Act (the Act) prevents courts from issuing injunctions to block lockouts or strikes arising from labor disputes. Responding with incredulity, Judge Nelson emphasized that the Act’s original purpose was to protect union employees from striking, not to protect employers from locking out. She did not seem swayed by Boeis’s reverse argument on the Act.
On the jurisdictional argument, advantage Players.

Irreparable Harm: 800 Jobless Athletes
On this important issue, Players’ attorney Jim Quinn stressed the fact that 800 players are currently “unsigned.”
Quinn was quite strategic here. While true that 800 of the NFL’s 1900 players may have expiring contracts, only a fraction of that number will be free agents. Many of those players would be Exclusive Free Agents -- players in their first three years of their careers with no rights to negotiate with other teams. And, if the lockout is lifted and the 2010 rules imposed, many of those players would be 4th and 5th year players without true free agency rights as Restricted Free Agents.

Judge Nelson appeared receptive to this argument; Boies should have responded that the actual number of free agents might be truly less than 300 players. Boies did argue, as expected, that there is no irreparable harm with five months before opening the season.
Notably, the irreparable harm issue received scarce attention on Wednesday. This topic may earn its own hearing at a future date. That may be the best that the NFL can hope for at this point.
On the irreparable harm issue, a slight edge to the Players.

Mediation: Game of Semantics?
Although Judge Nelson closed the day by “urging” the parties to return to the bargaining table, the NFL and the Players disagree upon what label to give these talks.

The NFL wants to continue “collective bargaining” negotiations. The Players want to engage in “antitrust settlement” negotiations. The two sides remain entrenched in their respective positions; the nomenclature they use to describe future negotiations simply reflects their divergent perspectives on the situation.

More important than what to actually name these negotiations, the parties also disagree upon which mediator should oversee them. The NFL wants to return to Washington, D.C. and mediator George Cohen. The Players – saying “been there, done that” to Cohen, prefer Judge Susan Nelson or her designee to mediate.

Visions of the wrath of Doty
For the NFL, the U.S. District Court in Minnesota conjures up 18 years of painful memories of judicial oversight by one Judge David Doty. In the upcoming CBA, they hope to shake free from the clutches of the Court. This result is more achievable with Cohen as mediator.

For the Players, the Court has repeatedly rendered favorable decisions in their direction. Why ruin a good thing? The Players will demand that any settlement agreement is to be predicated upon the Court retaining jurisdiction over future CBA disputes — just as the 1993 White settlement. This result is more achievable at their home field in Minnesota.

There is a conference call scheduled for today with the parties and Judge Nelson to try to make some sense of where and with whom to mediate.

An Issue of First Impression
We are treading deep into truly uncharted territory here. Never has a multi-employer unit locked out a non-unionized set of employees. Judge Susan Nelson made a comment wondering aloud whether the NFL had operated legally in locking out a group of non-unionized employees. Of course, the vast majority of unions do not decertify; this is a truly unique situation and one that will also shape the course of action in the NBA.

Nelson also made comments as to the potential length of the lockout. She seemed to indicate that unless she intervened, the lockout could go on indefinitely, which is not a good result for “lots of people.”

For now, we wait “a couple of weeks” for her ruling while the cat and mouse game of dueling letters about where to mediate and with whom continues.

Although reading the tealeaves on a preliminary hearing is speculative at best, after the first contest of courtroom football, the Players appear to have a slight lead. Like any football game, though, things can change in a hurry.

While the outcome is unpredictable, one thing is certain: courtroom football will continue for a while.

Can't disagree that NFL attorney Boies' arguements are not gaining him any ground with the court. In fact invoking Norris-LaGuardia may have been a big mistake given it's intended purpose. It makes it look like he's not drawing water from the right well and most judges have little time or patience with improper sites.

I'd have to agree that the players hold a slight edge so far but based on past history that's to be expected. I think if they get court supervised mediation they'll score a major win. The owners want no part that but they have a very weak arguement for getting in back to mediation by FCMS and George Cohen. Even Cohen has admitted that he didn't think further mediation through his group would be profitable.

First set to the players and advantage in set two as well.

they talked for a hour yesteray with the judge so think that is a really good sign,, MAYBE logic will prevail and ego's put away soon.. im hoping soul..