Agent wants his players to see NFL offer

**dabears54** · 06-03-2011, 10:09 AM

Football's Day in Court has arrived

Appeal hearing is today; what could happen Andrew Brandt

As disconcerting as it is to read this, we have reached the most important date on the NFL Calendar in 2011. The bad news is that it occurs in a courtroom. The good news is that it may be the last of Courtroom football we see – we hope – as the ruling in this case may direct the losing party towards purposeful negotiations of a new collective bargaining agreement. And the better news is those negotiations may have already begun, with news of a "secret meeting" in Chicago with decision-makers for both sides talking about their differences towards, hopefully, some common ground. Against this hopeful -- although early -- backdrop, let's look at the big day in Court today.

Sequence of Arguments at Hearing

Oral arguments will begin today at 10:00 AM Central time in St. Louis in front of a three-member panel of the Eighth Circuit Court of Appeals (the Court). Each side is allotted 30 minutes, with the Owners opening, the Players responding, and the Owners given extra time to reply to Players' arguments. Based upon what happened at the preliminary injunction hearing in front of Judge Nelson on April 6th, my feeling is that both sides will go longer than 30 minutes. With exhaustive briefs having been filed, the judges will have plenty of questions directed at these two parties, and the oral arguments will be heavily controlled by the call of these questions, rather than the attorneys.
Quarterback for the Players
The key player in today’s hearing may be Theodore Olson, the former solicitor general under George W. Bush. Today will be Olson's show; he represents the change agent for the Players. He has served as private counsel to two Presidents, Ronald Reagan and George W. Bush, and was Solicitor General from 2001-2004. He has argued 58 cases to the US Supreme Court, including the two Bush v. Gore cases, and has prevailed in 75% of those 58 cases. His staunch Republican background cannot be discounted in front of two Republican appointees that have ruled against the Players twice.
New Voice for Owners as well
The Owners will also have a new voice representing their interests. Paul Clement – who succeeded Olson as Bush’s solicitor general in 2005 – will argue for the Owners. Clement is more reserved than his friend Olson. His brief to the Court was persuasive. Clement is known for his upstanding legal ethics. Earlier this year, when his law firm backed out of representing the U.S. House of Representatives in defending the Defense of Marriage Act, Clement quit in protest.
Let’s look at what may happen:
Why the Court would rule for the Players
(1) Although the Court voted 2-1 in favor of the Owners, the dissenting judge, Judge Bye, was emphatic in supporting the Players in both the temporary and permanent stays. Through their written brief and oral arguments, the Players need only persuade one of the two other judges to switch sides and rule in their favor.
(2) The Court might completely reject the Owners’ Norris-LaGuardia Act arguments, reasoning that the Owners' interpretation turns the Act completely 180 degrees, and noting that no court has ever held that the Act applies to employer lockouts. Such a ruling would severely cripple the Owners’ arguments and result in the Court upholding Judge Nelson's injunction, thereby ending the NFL lockout pending further appeal.
(3) The Court could also find that the NFLPA's decertification was valid. In doing so, the Players would stand a better 'likelihood of success on the merits' of their underlying antitrust claim, one of the most important factors of the preliminary injunction test.
Why the Court would rule for the Owners
(1) The Court waited seventeen days between issuing a temporary stay and ruling on the permanent stay. In the event the Court truly believed that the Players were suffering irreparable harm, logic would dictate that the permanent stay ruling would have come sooner. Also, in their order granting the permanent stay, Judges Benton and Colloton may have tipped their hand, expressing that they "have serious doubts that the district court had jurisdiction to enjoin the League's lockout."
(2) The Court could find that this case does in fact "involve or grow out of a labor dispute" and that the Act applies. This would prohibit the District Court of Minnesota (Judge Nelson) from issuing an injunction.
(3) Even if the Act does not apply, the Court could rule that Judge Nelson must delay issuing an injunction until she receives detailed findings from the NLRB, which is in the process – however slowly – of determining whether or not the NFLPA's decertification was valid and effective.
Wildcard Ruling
Courts typically are inclined to rule narrowly on the issue(s) presented, fearing that a broad ruling may lead to unforeseen consequences. However, there is a slight chance that the Court could not only agree with the Owners’ arguments – as they did on the stay – but also go further and grant the Owners’ a home run at this stage.
The Court could rule that the nonstatutory labor exemption is still intact and nullify the entire basis for the lawsuit by the Players against the Owners. In Brown v. Pro Football, the Supreme Court held that the nonstatutory labor exemption – protecting the NFL against antitrust claims – continues to apply "sufficiently distant in time and in circumstances" beyond the collective bargaining process, opening the door for the Eighth Circuit to possibly conclude that the NFLPA's March 11 decertification was not sufficiently distant in time or circumstances, since it occurred within a couple hours of a collective bargaining session.
This expansive holding would seriously impair Brady v. NFL and send a message to Judge Nelson that there is no need to go forward at this point in time. If the Court is inclined to ultimately reverse the underlying antitrust claim at some point down the road (which could be a year or two), the appellate judges may feel that it is a waste of judicial resources for Judge Nelson to begin the trial process – order discovery, accommodate pretrial motions, etc. – on the Brady antitrust lawsuit.
My sense is the Court will rule narrowly, but the possibility does exist for the above scenario.
Likely Timeframe
Judge Nelson took exactly three weeks from the day of oral argument to rule on the preliminary injunction. We can expect to see a similar timeframe; expect a ruling in late June.
En Banc Hearing and Supreme Court
The losing party is able to request a rehearing of the matter in front of the full panel of 11 judges of the Eighth Circuit Court of Appeals – this is known as an "en banc rehearing." The losing party would first need to convince a majority of the justices (6 of 11) to grant the rehearing. En banc rehearings are not granted lightly, and it is unlikely here. Even if granted, it has the potential to disrupt the start of the NFL season, as the en banc process could take us into October.

The losing party can also apply to the U.S. Supreme Court, although landing on the Supreme Court's docket would be even more difficult than gaining an en banc rehearing. Even if successful, the case would not be heard until sometime deep into 2012.

Prediction

Although it is extremely difficult to handicap this sort of proceeding, the language from the Court's stay order – stating that they have "serious doubts" about Judge Nelson's ability to block the lockout – does present an initial obstacle for the Players. Right now, the Owners appear to have the slight advantage, and need only maintain the status quo.
The Players, on the other hand, are tasked with swaying one judge to rule in their favor. The Players – in their legal brief – have made clear that if the Court sides with the Owners' Norris-LaGuardia Act arguments, it contradicts 80 years of case law and also ignores the legislative purpose of the Act. This line of reasoning may persuade one judge.

And, of course, negotiations without the lawyers will continue, perhaps as soon as early next week. While football stays dark, the business/law of football keeps churning.

Going into the hearing -- which I am doing this morning – I would give the Owners an edge. However, to bring it back to the field, “that’s why they play the game (have the hearing?)”.
Stay tuned.

**dabears54** · 06-03-2011, 01:33 PM

BTW as have been saying for thelast few weeks, even the courts want it gone and solved by negotatiosn quickly.. like they go warned again today, hopefully they do take to heat the JUDGE WARNING and get a deal soon..

Judge urges NFL, players to settle dispute

By Brad Biggs Tribune reporter 12:39 p.m. CDT, June 3, 2011

ST. LOUIS -- NFL owners and players received motivation to settle their labor dispute out of the courts after presiding Judge Kermit Bye, at the end of a 70-minute hearing Friday at the 8th Circuit Court of Appeals, warned that the final ruling might not be something either side would like.

While the owners and players used St. Charles, Ill., as a backdrop for two days of negotiations this week without lawyers, there were plenty on hand here as the labor dispute went back into the courts in the case of Brady v. NFL.

The owners are appealing the injunction granted earlier in Minnesota by Judge Susan Richard Nelson that temporarily lifted the lockout, which is grinding toward a third month. While she ruled on the side of the players, the owners received a temporary stay from the appeals court. And although Bye has sided with the players previously, his colleagues -- Judges William Duane Benton and Steven Colloton -- have aligned with the owners.

“We will take this case and render a decision in due course,” Bye said. “We won’t, I might also say, be all that hurt if you’re leaving us out and should go out and settle the case. We will keep with our business and if that ends up with a decision it’s probably something both sides aren’t going to like, but it will at least be a decision.”

Paul Clement, representing the owners, argued at length that anti-trust laws don’t apply in the case. Theodore Olson, working on behalf of the players, spent the majority of his time arguing that the decertification of the players union was not a sham tactic designed to provide them with a leg up in a labor battle.

“The fastest way to get football back on the field is to get extraneous antitrust law considerations out of this and get back to the bargaining table,” Clement said. “I think that’s the real takeaway here. Not only is that the common sense way to get football back on the field, but it’s also the answer that the law has provided.”

The players’ goal is to have the lockout lifted, but ultimately what needs to be crafted is a new collective bargaining agreement.

“We’re here today to try and lift the lockout so that players can play football,” NFLPA spokesman George Atallah said. “At the same time, that doesn’t mean that negotiations or settlement negotiations couldn’t continue.”

There’s no timetable for the court to render a decision, and it could easily take a couple weeks or carry into next month. Observers believed the court was more favorable to the owners’ presentation.

One of Clement's arguments was that the union will be back. The hope has to be football is back, sooner rather than later.

bmbiggs@tribune.com

**Dagan81** · 06-03-2011, 01:38 PM

Originally Posted by dabears54

Football's Day in Court has arrived

Appeal hearing is today; what could happen Andrew Brandt

As disconcerting as it is to read this, we have reached the most important date on the NFL Calendar in 2011. The bad news is that it occurs in a courtroom. The good news is that it may be the last of Courtroom football we see – we hope – as the ruling in this case may direct the losing party towards purposeful negotiations of a new collective bargaining agreement. And the better news is those negotiations may have already begun, with news of a "secret meeting" in Chicago with decision-makers for both sides talking about their differences towards, hopefully, some common ground. Against this hopeful -- although early -- backdrop, let's look at the big day in Court today.

Sequence of Arguments at Hearing

Oral arguments will begin today at 10:00 AM Central time in St. Louis in front of a three-member panel of the Eighth Circuit Court of Appeals (the Court). Each side is allotted 30 minutes, with the Owners opening, the Players responding, and the Owners given extra time to reply to Players' arguments. Based upon what happened at the preliminary injunction hearing in front of Judge Nelson on April 6th, my feeling is that both sides will go longer than 30 minutes. With exhaustive briefs having been filed, the judges will have plenty of questions directed at these two parties, and the oral arguments will be heavily controlled by the call of these questions, rather than the attorneys.
Quarterback for the Players
The key player in today’s hearing may be Theodore Olson, the former solicitor general under George W. Bush. Today will be Olson's show; he represents the change agent for the Players. He has served as private counsel to two Presidents, Ronald Reagan and George W. Bush, and was Solicitor General from 2001-2004. He has argued 58 cases to the US Supreme Court, including the two Bush v. Gore cases, and has prevailed in 75% of those 58 cases. His staunch Republican background cannot be discounted in front of two Republican appointees that have ruled against the Players twice.
New Voice for Owners as well
The Owners will also have a new voice representing their interests. Paul Clement – who succeeded Olson as Bush’s solicitor general in 2005 – will argue for the Owners. Clement is more reserved than his friend Olson. His brief to the Court was persuasive. Clement is known for his upstanding legal ethics. Earlier this year, when his law firm backed out of representing the U.S. House of Representatives in defending the Defense of Marriage Act, Clement quit in protest.
Let’s look at what may happen:
Why the Court would rule for the Players
(1) Although the Court voted 2-1 in favor of the Owners, the dissenting judge, Judge Bye, was emphatic in supporting the Players in both the temporary and permanent stays. Through their written brief and oral arguments, the Players need only persuade one of the two other judges to switch sides and rule in their favor.
(2) The Court might completely reject the Owners’ Norris-LaGuardia Act arguments, reasoning that the Owners' interpretation turns the Act completely 180 degrees, and noting that no court has ever held that the Act applies to employer lockouts. Such a ruling would severely cripple the Owners’ arguments and result in the Court upholding Judge Nelson's injunction, thereby ending the NFL lockout pending further appeal.
(3) The Court could also find that the NFLPA's decertification was valid. In doing so, the Players would stand a better 'likelihood of success on the merits' of their underlying antitrust claim, one of the most important factors of the preliminary injunction test.
Why the Court would rule for the Owners
(1) The Court waited seventeen days between issuing a temporary stay and ruling on the permanent stay. In the event the Court truly believed that the Players were suffering irreparable harm, logic would dictate that the permanent stay ruling would have come sooner. Also, in their order granting the permanent stay, Judges Benton and Colloton may have tipped their hand, expressing that they "have serious doubts that the district court had jurisdiction to enjoin the League's lockout."
(2) The Court could find that this case does in fact "involve or grow out of a labor dispute" and that the Act applies. This would prohibit the District Court of Minnesota (Judge Nelson) from issuing an injunction.
(3) Even if the Act does not apply, the Court could rule that Judge Nelson must delay issuing an injunction until she receives detailed findings from the NLRB, which is in the process – however slowly – of determining whether or not the NFLPA's decertification was valid and effective.
Wildcard Ruling
Courts typically are inclined to rule narrowly on the issue(s) presented, fearing that a broad ruling may lead to unforeseen consequences. However, there is a slight chance that the Court could not only agree with the Owners’ arguments – as they did on the stay – but also go further and grant the Owners’ a home run at this stage.
The Court could rule that the nonstatutory labor exemption is still intact and nullify the entire basis for the lawsuit by the Players against the Owners. In Brown v. Pro Football, the Supreme Court held that the nonstatutory labor exemption – protecting the NFL against antitrust claims – continues to apply "sufficiently distant in time and in circumstances" beyond the collective bargaining process, opening the door for the Eighth Circuit to possibly conclude that the NFLPA's March 11 decertification was not sufficiently distant in time or circumstances, since it occurred within a couple hours of a collective bargaining session.
This expansive holding would seriously impair Brady v. NFL and send a message to Judge Nelson that there is no need to go forward at this point in time. If the Court is inclined to ultimately reverse the underlying antitrust claim at some point down the road (which could be a year or two), the appellate judges may feel that it is a waste of judicial resources for Judge Nelson to begin the trial process – order discovery, accommodate pretrial motions, etc. – on the Brady antitrust lawsuit.
My sense is the Court will rule narrowly, but the possibility does exist for the above scenario.
Likely Timeframe
Judge Nelson took exactly three weeks from the day of oral argument to rule on the preliminary injunction. We can expect to see a similar timeframe; expect a ruling in late June.
En Banc Hearing and Supreme Court
The losing party is able to request a rehearing of the matter in front of the full panel of 11 judges of the Eighth Circuit Court of Appeals – this is known as an "en banc rehearing." The losing party would first need to convince a majority of the justices (6 of 11) to grant the rehearing. En banc rehearings are not granted lightly, and it is unlikely here. Even if granted, it has the potential to disrupt the start of the NFL season, as the en banc process could take us into October.

The losing party can also apply to the U.S. Supreme Court, although landing on the Supreme Court's docket would be even more difficult than gaining an en banc rehearing. Even if successful, the case would not be heard until sometime deep into 2012.

Prediction

Although it is extremely difficult to handicap this sort of proceeding, the language from the Court's stay order – stating that they have "serious doubts" about Judge Nelson's ability to block the lockout – does present an initial obstacle for the Players. Right now, the Owners appear to have the slight advantage, and need only maintain the status quo.
The Players, on the other hand, are tasked with swaying one judge to rule in their favor. The Players – in their legal brief – have made clear that if the Court sides with the Owners' Norris-LaGuardia Act arguments, it contradicts 80 years of case law and also ignores the legislative purpose of the Act. This line of reasoning may persuade one judge.

And, of course, negotiations without the lawyers will continue, perhaps as soon as early next week. While football stays dark, the business/law of football keeps churning.

Going into the hearing -- which I am doing this morning – I would give the Owners an edge. However, to bring it back to the field, “that’s why they play the game (have the hearing?)”.
Stay tuned.

This confirms my worst fears. It seems highly likely that there will be no end to the lockout, and that essentially the Norris-LaGuardia Act will be rendered obsolete. The owners most definitely have the advantage, and as long as that is the case, there will be no football. I just don't see the NFL and the NFLPA coming to an agreement anytime soon on this.

**soulman** · 06-04-2011, 01:48 PM

Originally Posted by Riczaj01

Soul, neither side is very happy w/how the courts are handling these cases; better to get a deal done that is in the middle before you lose any real battle and all negotiating power.

I agree with you Ric but that's not what usually happens. Wars don't end on equal terms. They end only when one side has the decided advantage over the other and the outcome is no longer in doubt. Japan refused to surrender to end WWII preferring to risk an invasion of their homeland with dependence on superior strength in numbers to at least force a stalemate. It wasn't until we proved that we could annihilate them without setting one foot on Japanese soil that they did, and very quickly too.

What I fear is that the courts will not rule in a manner that give either party decided advantage and the war will continue. What I'm really hoping for is that they force the owners to lift their lockout but cut off the players anti-trust lawsuit. That would take away the two biggest bargaining chips that each side has and force them to get it settled out of court. The other thing that would help is for Judge Doty to escrow all monies due to the NFL from TV rights until he gives a final decision on the matter. That takes the owners war chest away and should get them in a better mood to settle.

**dabears54** · 06-05-2011, 06:25 AM

Originally Posted by Dagan81

This confirms my worst fears. It seems highly likely that there will be no end to the lockout, and that essentially the Norris-LaGuardia Act will be rendered obsolete. The owners most definitely have the advantage, and as long as that is the case, there will be no football. I just don't see the NFL and the NFLPA coming to an agreement anytime soon on this.

and think the opposit Soul- think because the Players lost, lost their 'advantage' its time to stop being petty and do a deal, that benefits both sides..Demaurice sold the union on winning on court and suing, and now that not working- the players have to realize time to stop suing and using lawyers( and took that step last week in the meeting), and get to the table

**soulman** · 06-05-2011, 01:06 PM

Originally Posted by dabears54

and think the opposit Soul- think because the Players lost, lost their 'advantage' its time to stop being petty and do a deal, that benefits both sides..Demaurice sold the union on winning on court and suing, and now that not working- the players have to realize time to stop suing and using lawyers( and took that step last week in the meeting), and get to the table

All they seem to have lost so far is the battle to end the lockout. Bigger issues are still undecided and Judge Bye has encouraged them to settle before the court divides the child. Seems that someone could win a battle but lose the war yet.

**dabears54** · 06-06-2011, 05:32 AM

Originally Posted by soulman

All they seem to have lost so far is the battle to end the lockout. Bigger issues are still undecided and Judge Bye has encouraged them to settle before the court divides the child. Seems that someone could win a battle but lose the war yet.

And that's my point, even the judge's are telling them to settle, and stop suing..and think most are starting to listen that settling will get more than the court route.

**soulman** · 06-06-2011, 01:48 PM

Originally Posted by dabears54

And that's my point, even the judge's are telling them to settle, and stop suing..and think most are starting to listen that settling will get more than the court route.

Well they are getting down to something serious but they admit that these are "settlement talks" for the anti-trust lawsuits and not collective bargaining negotiations. http://www.csmonitor.com/Business/La...-talks-restart

I'm beginning to believe that something that neither will like that Judge Bye hinted at is that the owners will prevail in their fight to keep the lockout in place but the players anti-trust cases will be allowed to move forward as early as September. This is not a good ruling for either party because it practically assures that the 2011 season will be seriously affected unless they come to an agreement very soon. But as long as the owners are being sued they aren't gonna want to pay those who are suing them. Can't say I blame them. On the other hand how do you effectively reach and agreement on a new CBA when there is no longer anyone representing the players as a whole?

So the owners and the players come to some kind of an agreement that ends the lawsuits brought by the players the NFLPA recertifies and they finally get to some sort of a compromise they can all live with. If they don't do it now under their terms very soon they'll have to try and do it under the courts terms.

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