In the first brief filed in support of the motion to lift the lockout while the Brady antitrust lawsuit proceeds, the players gave fairly short shrift to one of the most important issues in any effort to obtain an injunction before a final judgment has been entered — whether and to what extent the plaintiffs will suffer “irreparable harm” without the injunction.
“Irreparable harm” means damage that can’t be compensated with the payment of money at a later date. The first brief filed by the players in the Brady case focused on the potential loss of an entire football season. In response, the NFL made a fairly compelling case to the contrary, pointing out that all player losses inflicted during a lockout ultimately deemed to be illegal can be remedied with the payment of money. At a time when the players are complaining about the physical risks of playing football, the prospect of getting paid not to play should be viewed by some as a good thing, not a bad thing.
In the reply brief filed today by the players, which represents the final written word on the motion to lift the lockout (unless Judge Susan Nelson asks for further briefing to be submitted after the April 6 hearing), the players elaborate on the irreparable harm that will be suffered without an offseason, a preseason, and/or a regular season.
“Players are suffering irreparable harm now, before games are lost,” the players’ brief states. “The offseason is the time when Players compete to try to find a team, make a roster, establish themselves as starting players, demonstrate that they can overcome injuries, or otherwise prove themselves. To do this, they need the opportunity to sign with the right team, begin off-season workouts, learn the team’s system, and compete before training camp begins. Absent immediate injunctive relief, it will be impossible to turn back the clock or quantify in damages these lost opportunities.”
It’s a strong point. And it’s strong enough to suggest that, if the NFL prevails on the current motion and secures a ruling allowing the lockout to continue, the players could cave long before they miss a game check.
For now, the players need Judge Susan Nelson to agree that irreparable harm will happen both now and later, since the players seem to implicitly concede that their ability to show a likelihood of success on the merits of their lawsuit has been undermined by the questions raised by the NFL regarding the validity of the union’s decertification. Though the players advance persuasive arguments in support of their ability to decertify, the league’s arguments appear to be equally persuasive, and an easy answer as to who’s right and who’s wrong may not be available this early in the case.
As a result, the players have included this paragraph in their brief: “A preliminary injunction is warranted where the equities favor the movant as long as there are ‘questions so serious and difficult as to call for more deliberative investigation.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (where ‘the movant has raised a substantial question and the equities are otherwise strongly in his favor, the showing of success on the merits can be less’).” In English, the players are saying that they aren’t required to show that they are likely to win the case if they can otherwise show that overall fairness requires the lockout to be lifted.
That same principle was applied in the StarCaps case, which was pending at the time in the same court. In December 2008, U.S. District Judge Paul Magnuson found that the players had raised a “substantial question” regarding the question regarding the partiality of the person who resolved the grievance, NFL general counsel Jeff Pash. Judge Magnuson opted to grant a preliminary injunction in large part because the harm to the players — losing four regular-season games that could not be replaced later — was irreparable.
At the hearing on April 6, the players need to harp on the initial outcome in the StarCaps case. And the players need to breathe more life into the irreparable nature of the harm, including the impact of the loss of games on career stats and honors and other things that can’t be replaced by the payment of cash, specific points that they have yet to make.
Whether that’s enough to lift the lockout remains to be seen. We’ll all find out the answer at some point on or after April 6.
Pending the inevitable appeals.