Earlier today, Judge Susan Nelson issued an order setting an April 6 hearing date in the players’ motion for preliminary injunction, which requests that the lockout be blocked while the lawsuit proceeds.
Here’s what it means, actually or potentially.
1. Judge Nelson won’t immediately be punting the case.
Unlike the two prior judges to whom the case had been assigned, Judge Nelson didn’t treat the litigation like a proverbial hot potato. By issuing an order setting a hearing date on the motion for preliminary injunction, Judge Nelson has implied that there is no apparent reason for her to recuse herself from handling the case.
It doesn’t foreclose the players from filing a motion to transfer the case from Judge Nelson to Judge David Doty. Though neither we nor NFL general counsel Jeff Pash (one of the guests on today’s supersized PFT Live) are currently aware of any precedent that would allow a case to be transferred within the same district based on a given judge’s knowledge of the process, nothing stops the players from trying.
That said, the players don’t seem to be concerned about Judge Nelson’s handling of the case. “That’s not an issue,” Saints quarterback Drew Brees said during a Monday conference call arranged by the NFLPA*. “That’s something that the owners seem to be very focused on. For us it about the facts and the law.”
The fact that Judge Nelson was nominated by President Obama and appointed by a Congress controlled by Democrats is another reason for the players to not be complaining.
2. It’s possible that the players wanted a later date.
When a case is filed along with a motion for preliminary injunction, the judge to whom the case is assigned promptly attempts to determine the length of the proverbial fuse. It happens when the judge, or more often one of the judge’s assistants, calls the plaintiffs’ lawyer and asks, “When do you want this to be heard?” And then the plaintiffs’ lawyer says, “Right away” or “In a few weeks” or whatever the plaintiffs’ lawyer says. The ultimate decision regarding the date of the hearing is based on the plaintiffs’ urgency, the availability of the lawyers, and the docket of the judge.
For a case of this magnitude, a judge would be more likely to move quickly, if the plaintiffs want to move quickly. It’s possible that the players (and this meshes with some things we’ve heard and senses elsewhere) wanted a three-to-four-week window before the ruling, so that negotiations could continue during the dead period between the end of mediation and the hearing on the motion for preliminary injunction.
The players possibly would want to buy time due to fears that the players would lose the motion for preliminary injunction, allowing the lockout to continue until the litigation ends successfully for the players. Such an outcome would give the league ample leverage going forward; the possibility that the lockout will be lifted as soon as April 6 gives the players leverage.
That leverage can be converted into a deal. After April 6, the leverage could get stronger -- or it could evaporate.
3. Negotiations may continue.
Even though the NFLPA* has decertified and no longer has the ability to negotiate on behalf of the players, talks may continue within the confines of the antitrust case filed in Minnesota. And those talks would be handled by the lawyers who are handling the case.
Indeed, NFLPA* spokesman George Atallah said during the Monday conference call with the media that “any negotiations are up to the class counsel.”
The problem? Someone has to make the first move. And lawyers routinely obsess over the perception of weakness that comes from being the first one to place the call.
Here’s our advice. Judge Nelson should refer the case to mediation. Now.
Though it remains an inherently voluntary process, the parties would be more inclined to obey the mediator and behave reasonably if the mediator has teeth, if the mediator was picked by the judge presiding over the case. For mediation conducted within the confines of litigation, where the mediator has the ability to call the judge and express concern about the question of whether one side or the other misbehaved, the chances of broken vows of silence and perceptions of intransigence would diminish.
So to the extent that our audience in the Twin Cities (or, as Paul Allen of KFAN describes it, the cornfields) includes Judge Nelson, a member of her staff, or someone who knows her, tell her that the hacks at PFT think she should immediately send the two sides to mediation.
Likewise, Judge Doty could order mediation, given that he still has jurisdiction over the “lockout insurance” case and the collusion claim filed under the now-expired settlement agreement in the Reggie White antitrust litigation.
If either Judge Nelson or Judge Doty were to order mediation, a deal most likely would be done by April 6. If both were to do it simultaneously, the chances of a deal would be even greater.