Nothing Nelson does will be irrevocable. Every decision she makes is subject to appeal in a higher court.
But she could soon decide whether the NFL goes back to business while owners and players battle in court; whether to wait for the results of a possibly time-consuming National Labor Relations Board process; whether the players’ decision to dissolve their labor union is valid and whether the owners are violating the players’ rights.
Or perhaps she will attempt to help the two sides reach a settlement.
“I don’t think we can predict,” said sports law expert Gary R. Roberts, dean of the Indiana University law school. “ . . . With an unknown judge and novel issues, there’s no way of knowing. Even among the people I know who teach these things, there is division of opinion as to how it should be decided.”
If Nelson grants the players’ request for a preliminary injunction and the league is unable to secure a stay of her decision while it appeals, the football shutdown would end, at least temporarily, even as the confrontation continues to play out in court.
But if Nelson rejects the players’ request, the lockout would remain in place and, without a negotiated settlement in sight, the league would move closer to losing some or all of next season.
Experts can’t even agree how close the NFL is to canceling games in September.
“If [Nelson] makes a decision in the week or 10 days afterward, then there will be an appeal to the Eighth Circuit,” said Stephen M. Axinn, an antitrust attorney in New York. “Once that is resolved, even if it moves with great speed, it will still be June. The Supreme Court would not hear it before October. You could lose the 2011-2012 season.”
Roberts, however, said he doesn’t think next season is in any immediate danger, as long as Nelson doesn’t decide to wait for a separate decision by the NLRB. “That’s the instance in which everyone would sit around doing nothing and we could lose football games in the fall,” he said.
But “the season is not close to being in jeopardy,” he added. “The season is not slightly threatened until about July, and the whole season would probably not be in jeopardy until we’re well into October. We’re nowhere close to that yet. All we’re seeing right now is them jockeying for position.”
Players may have a case
Owners locked out players three weeks ago. Negotiations between the league and union collapsed a day earlier, and players dissolved their union and filed an antitrust lawsuit against owners with plaintiffs who include superstar quarterbacks Tom Brady, Peyton Manning and Drew Brees.
Except for this month’s draft, there is little normalcy to the current offseason. Teams cannot sign players to contracts or trade them. Coaches are prohibited from contacting players. The sport’s drug-testing system is not in effect.
To win a preliminary injunction from Nelson and lift the lockout, the players must demonstrate a likelihood they will succeed in the lawsuit, which claims that their ability to ply their trade has been illegally restricted. And they must show they will suffer irreparable harm if the injunction is not granted.
Axinn said the players have made a convincing argument. “I think they can show all of the necessary ingredients for an injunction,” he said.
The league argued in a recent court filing that federal labor law, namely the 1932 Norris-La Guardia Act, prohibits the granting of an injunction request in a labor dispute. The NFL also contended that the players are in no danger of suffering irreparable harm without an injunction.
“The league is saying all that’s at stake here is money and if the players are right and if the players are right and we’re wrong, we’ll have to write a big check but there’s no more harm than that,” said New York-based labor attorney Seth H. Borden.
The players contended in their court documents that they are suffering irreparable harm because they don’t have access to a free marketplace and aren’t playing the game they love.
“I don’t think the average district judge would conclude someone with a career of two to three years, or even seven to eight years, can be properly compensated by treble damages if they’ve lost their careers,” Axinn said.
The players also argued that they have the right to eliminate their union if they choose. Their attorneys maintained that labor law permits the injunction and that Nelson shouldn’t wait for an NLRB ruling.
NFL could gain leverage
Also at issue is a provision in the now-expired collective bargaining agreement between the league and union. The players’ side contends the owners, in it, waived their right to claim in an antitrust case that the players’ decertification of the union is a “sham.” The league maintains that provision only applies if the players dissolved their union after the expiration of the labor deal. The players made the move before the labor agreement expired.
The league also has asked Nelson to wait for a decision by the NLRB on whether the players’ decertification of their union — a move required before the players could file their antitrust litigation — is valid. There is no timetable for a decision by the NLRB.
“It’s clear the narrative the league is pushing here is that this [the players’ decertification of the union] is a bargaining tactic — nothing more, nothing less,” Borden said. “If the league succeeds in pushing the labor board to consider that first, it significantly pushes the leverage in the league’s direction.”
Borden said he thinks the NFL has “laid out very compelling arguments that the courts should be deferring” to the NLRB. But Axinn predicted that the union decertification will be found valid.
“I think that argument [by the NFL] will fail, in my opinion,” Axinn said. “I think the NFL Players Association has successfully decertified itself.”
It is unclear when Nelson will make a ruling on the players’ injunction request. An immediate decision Wednesday is considered unlikely.
If Nelson grants the players’ request to end the lockout, the league would seek a stay to keep the lockout in place pending an appeal to the U.S. Court of Appeals for the Eighth Circuit.
Without one, the NFL would have to reopen for business, at least temporarily. Jeffrey Kessler, an attorney for the players, said at a sports business conference Thursday in Miami that he expects the owners to put new, tighter restrictions on free agency and impose a more rigid salary cap.
Other sources previously have said the league probably would use last season’s work rules instead. That would mean no salary cap, and players with expired contracts would need six seasons of NFL experience to be eligible for unrestricted free agency, two more than were required under the salary cap system.
Back to the table?
Some observers believe the legal maneuvering will be abandoned in the not-too-distant future in favor of settlement talks.
“If I owned an NFL team or if I was Tom Brady,” Axinn said, “I would see so much at stake if this is how you make your living. I understand how difficult these negotiations have been. But there comes a time when you have to move on. This is business, for heaven’s sake. This [litigation] is not what you want to do. It impels a reasonably settled conclusion.
“There’s a famous saying that the outcome of litigation can never be determined with certainty in advance. Do you really want to take the risk that someone hiccups in court and you get what you consider a disastrous outcome?”