Talks between the two sides have been on hold since negotiations collapsed March 11, the day before the lockout began. It appears unlikely the league and players will meet again soon because they cannot agree to the terms by which the talks would resume.
The players’ side wants to negotiate a settlement of its antitrust lawsuit against team owners, while the league wants the players to reconstitute their dissolved labor union and participate in collective bargaining.
“These kinds of matters ought to be settled at the collective bargaining table and not in a federal court,” David Boies, the NFL’s attorney, said outside the courthouse after Wednesday’s hearing.
But Jeffrey Kessler, one of the attorneys for the players, said that Nelson’s offer was for “litigation settlement discussions, not collective bargaining.”
Nelson’s decision is likely to be appealed to the U.S. Court of Appeals for the Eighth Circuit by the losing side, which could mean additional delay in resolving the dispute.
If Nelson grants the players’ request for an injunction, the league would seek a stay--from her or a higher court--to keep the lockout in effect pending its appeal. Without one, the sport would reopen for business, at least temporarily.
Wednesday’s hearing began just after 10:30 a.m. ET and lasted into the late afternoon. Boies spoke for nearly three hours in all and was questioned vigorously at times by Nelson on a variety of legal points made by the league.
“I have never been able to figure out from a judge’s questions exactly where they are coming from. . . Trying to read into where she is coming from, I am not able to do that,” Boies said later.
James Quinn, one of the attorneys for the players, presented the players’ arguments during the hearing. Nelson scrutinized his arguments less closely.
“The judge is listening carefully,” Quinn said after the hearing. “She’s extremely well-prepared.”
The players contend the lockout is illegal because the league is preventing them from playing their chosen profession without a collective bargaining relationship to shield it from antitrust laws. Quinn also argued that the players have the right not to be represented by a union if they choose.
Boies argued that federal labor law, specifically the 1932 Norris-LaGuardia Act, prohibits a court from granting an injunction in a labor dispute.
Boies told Nelson the court would have to “make new law” to grant the players’ injunction request.
He also argued that Nelson should wait for the National Labor Relations Board to complete its investigation of the league’s claim that dissolving the NFL Players Association was a sham, undertaken only as a bargaining tactic.
But Nelson seemed to indicate during the hearing that she thought the players’ decertification of the union was valid. She said to Boies at one point: “They can do it, right? They can do it.”
She also suggested she had the discretion to decide whether to wait for the NLRB or move forward herself.
She said at one point that the players’ side might have a strong case that players would suffer irreparable harm without an injunction, a critical factor in determining whether to issue one. Boies immediately objected.
Nelson also heard arguments Wednesday on behalf of retired players who have filed a separate lawsuit against the league.
Neither the NFL nor the current players expressed objections to combining the lawsuits.