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Players’ case for irreparable harm shows the power of a lockout

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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.

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38 Responses to “Players’ case for irreparable harm shows the power of a lockout”
  1. mick730 says: Mar 28, 2011 11:06 PM

    Ha! The league’s answer to this irreperable harm business from no offseason workouts, etc., is Brent Favre. End of story.

  2. stoutfiles says: Mar 28, 2011 11:09 PM

    I feel for the practice squad players that make a fair wage for what they do but these salaries, not just for football but for all sports, are just ridiculous.

    Players should be paid less and fans should be paying less.

  3. cameran0804 says: Mar 28, 2011 11:15 PM

    Packerzman is a clown

  4. hail2tharedskins says: Mar 28, 2011 11:16 PM

    I’m not a lawyer but that is a very weak case for irreparable harm. The argument’s only seem to make sense if games are actually played, then the players that missed games would be irrepably harmed (because you can’t get those games back), but if no games are played they aren’t prevented from missing out on anything accept a paycheck. In the StarCaps, those players would have missed games that would have been played. I don’t think there argument will fly. And as for that overall fairness says the lockout should be lifted – yeah that is gonna go real far since a lockout is recognized as a fair negotiating technique in federal labor law, talk about throwing a hailmary. I read the NFL brief, I haven’t read the players’ response but if the excerpts you posted here is indicitive of the brief then I understand why the owners are confident!

    p.s. you got a link to that brief?

  5. tubal22 says: Mar 28, 2011 11:17 PM

    Before there was a lockout, there was a walkout.

    You guys left the table. If you were so worried about the irreparable harm, shoulda kept trying to get a deal done.

  6. numberonewiseone says: Mar 28, 2011 11:28 PM

    These guys need to stop worrying about money in other peoples pockets and worry about themselves and there own pocket books. Tom Brady’s case is a joke with how much he is making. Owners should be able to choose what they want to pay their players and what benefits they get, if the players do not want to play for them they can go get another job somewhere else.

    These guys should be set for life on their salary alone and could pay for their own benefits out of their paychecks. Playing football is a privilege not a right!

  7. kanatablues says: Mar 28, 2011 11:32 PM

    [I]“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.”[/I]

    These conditions apply almost completely to free agents, not players already under contract. As well, many free agents don’t sign at the start of free agency or even after the draft. And for most players, working out and preparing for training camp is something that they do ~all year round.

    Beyond that, it seems like the league would be able to easily enough dispense with this argument by saying that they would simply eliminate games and ensure that there was a sufficiently long pre-season before the season started.

    I’m not saying I agree with either side but as these are arguments I thought of immediately after reading the story so I’m not sure how compelling the player’s case is; I’m sure the league’s lawyers will be able to do much better.

  8. src3346 says: Mar 28, 2011 11:53 PM

    Makes sense! Everyone is twisting in the wind. Is it over yet?

  9. givetheballtomcfadden says: Mar 28, 2011 11:56 PM

    Are these the same players that, when there are “voluntary workouts”, don’t go to the team’s facility and work out elsewhere?

    If this is part of the relief they are seeking within this injunction, I hope Albert Haynseworth’s name isn’t on the lawsuit.

  10. hail2tharedskins says: Mar 29, 2011 12:05 AM

    ROFL, I just started reading the palyers’ brief. Did they really claim that they took a decertification vote before and after the end of the CBA? Is that their way around the fact they would have to wait 6 months after the CBA expired in order to have the NFL ‘sham’ defense waived? Come on, no judge is going to buy that. And if further weakens their own position that union no longer existed as of 4pm on March 11. What in hell were player reps doing taking a decertification vote after union ceased to exist and a lawsuit already filed? I’m not a lawyer, but if that passes in federal court as a valid argument then our judicial system is a joke.

  11. hail2tharedskins says: Mar 29, 2011 12:21 AM

    After reading the entire brief, I am pretty convinced that no injunction will be granted. The two sides can argue back and forth on the merits of the lockout or when and if the union legally decertified. But up until this point the league has not engaged in any activities not agreed upon in the CBA. The underlying lawsuit that preceded this injunction is actually relying on the injunction in order to seek the claims made in the lawsuit and without the injunction the lawsuit is baseless as none of the activities discribed in lawsuit have occurred, for that reason I don’t think any judge is willing to grant an injunction seeking to return the plaintiffs to conditions the players are suing against.

  12. hobartbaker says: Mar 29, 2011 12:24 AM

    Judge Nelson going to be suffering from irreparable smarm before this thing is done.

  13. thestrategyexpert says: Mar 29, 2011 12:25 AM

    The case has no merit. If a player can’t prove himself because of the lost time, then a competitive player will prove himself, without earning it perhaps, and get that extra job or money. So the names of the players will just be exchanged, but the player pool will still succeed to an identical fashion. Each player has the same risk to lose, that is offset by their same FREEROLL to possibly gain.

    It’s an even-steven proposition.

    Nice try silly players. Maybe some of you should have earned a college degree like I did, and you could figure these things out too! :)

  14. 6thsense79 says: Mar 29, 2011 1:10 AM

    I hope the lockout is lifted so we can get on with football. I know there are plenty of folks here who for whatever reason sides with the owners but the plain and simple fact is football activities have stopped because the owners locked out the players. Nobody went on strike. If the owners wanted they could lift the lockout today.

  15. lonewizard says: Mar 29, 2011 1:23 AM

    I will NOT listen to or read this kind of lawyer crap. Put some men (non lawyers) in a room and hammer out a deal or the “irreparable harm” is going to be fans turning their back on the NFL and enjoying baseball. The only people making money from this strike are the lawyers so it is NOT in their best interest to make a deal. And fire Smith and Goodell for gross incompetence and replace them with men that know how to deal.

  16. lt2369 says: Mar 29, 2011 1:36 AM

    Their argument would be more persuasive had they not walked away from the negotiating table and caused this work stoppage.

  17. 6thsense79 says: Mar 29, 2011 2:03 AM

    I know everyone and their mom has provided their solution to the NFL debacle so I guess I’ll add mine.

    This past season the NFL made $9 billion.
    $1 billion off the top went to the owners for operating expenses. The remaining $8 billion was split 40.5% owners ($3.24 billion) (owners received $4.24 billion total) and 59.5% Players ($4.76 billion).

    When the agreement was first signed in 2006 total revenue was $6 billion of which the owners received ($1 billion of the top and $2.025 billion for a total of $3.025 billion) while the players received $2.975 billion).

    Now if you evaluate the numbers you’ll see the owners in 2009 received 40% more (about $1.215 billion) more than they did in 2006 which is phenomenal growth and better than any other major sports league in the US yet at the beggining of this whole thing they wanted an extra $1 billion from the player’s share of revenue. There is greed in this situation alright but I find it hard to believe that the greed is comming from the players (who really are not asking for anything extra) like some of you think.

    Anyways…Thanks for staying with me….now that I laid out the indisputable revenue numbers now for the solution………

    The NFL asked for an extra $1 billion which was a non starter and the league knew this when it asked but like any good business man knows you ask for more than you really want so when negotiations get under way even if you only get 60-70% of of that number you come out ahead. Well when negotiations got under way I heard the league was willing to accept about $400 million instead of the billion……

    Well instead of anyone getting that money why don’t the players and the owners agree to an expense fund that’s owned by no one. The expense fund will be 7.5% of the players revenue. Using last seasons numbers it would be $4.76billion*.075 or $357 million. The owners will still receive the $4.24 billion for 2009-10 and the players will get $4.403 billion instead of $4.76B.

    Now if any team needs to access any of that extra $357 million account for additional expense they will have to justify it by showing 3-5 years of their full financial statements with all expenses during that span explained to a third party financial evalutor picked by the owners and NFLPA who agrees to keep all financial information confidential. If any extra financial expense can’t be justified or is excessive then the amount the evaluator approves to a team is reduced by a certain number. Any left over amount in the expense account is returned to the players.

    In 6 years when NFL revenue is estimated to rise to around $18 billion the extra expense account will be $758 million and will grow as the revenue grows (assuming the owners still get $1billion of the top and remaining split is still 40.5 owners, 59.5 players.

  18. trickybastard says: Mar 29, 2011 2:06 AM

    Try getting laid off with no promise of back pay or $1800 a month for unemployment. That’s irreparable.

  19. scudbot says: Mar 29, 2011 6:12 AM

    Irreparable harm: free time allowing the commission of crimes and misdemeanors when the poor, unfortunate miscreants wouldn’t have had the opportunity to be on the street and in the malls otherwise. Poor babies. Mama wasn’t at home. They couldn’t help it. Actually the most irreparable harm was caused by their decision to hire DeMaurice Smith and go for even more gold. And the first poster who posts a “but they’re not asking for one more penny” post can stop prevaricating to him- or herself right now.

  20. 6thsense79 says: Mar 29, 2011 7:05 AM

    lt2369 says:
    Mar 29, 2011 1:36 AM
    Their argument would be more persuasive had they not walked away from the negotiating table and caused this work stoppage.
    ———————————–
    Huh? I’m having a hard time following your logic. The Owners opted out of a CBA both players and the owners agreed to.

    They then demanded a $1 billion from the players and during the very first negotiations walked out……untill the courts ruled the lockout insurance was illegal….then all of sudden they wanted to negotiate…..After 2 extensions the players felt negotiations were not serious and ended it……The owners have numerous choices….they could settle the lawsuit, play under last year’s rules, or lockout the players. They CHOOSE to lockout the players. No one made them do it. What cause the lockout is the owners locking out the players. They could just as easily still have the 2011 season proceed while the court case moves through or new negotiations are established.

  21. 6thsense79 says: Mar 29, 2011 7:24 AM

    hail2tharedskins says:
    Mar 29, 2011 12:21 AM
    After reading the entire brief, I am pretty convinced that no injunction will be granted. The two sides can argue back and forth on the merits of the lockout or when and if the union legally decertified. But up until this point the league has not engaged in any activities not agreed upon in the CBA. The underlying lawsuit that preceded this injunction is actually relying on the injunction in order to seek the claims made in the lawsuit and without the injunction the lawsuit is baseless as none of the activities discribed in lawsuit have occurred, for that reason I don’t think any judge is willing to grant an injunction seeking to return the plaintiffs to conditions the players are suing against.
    ———————-
    A few things wrong with your post. You claim the league can’t be sued because they’re not doing anything not agree upon in the CBA. Small problem…..there is no CBA. The last one expired a few weeks ago.

    You also claim the lawsuit is baseless as none of the activities described in the lawsuit has occurred but that doesn’t make sense….the activities don’t and shouldn’t have to occur…That’s besides the point if the activities occurred then the requestor is already facing harm…Ruling on irreparable harm or damage is based on 3 factors….the likely hood the requestor will prevail, the harm the requestor will suffer if an injunction is not granted, and the irreparable harm the opposing party
    will suffer if the injunction wrongly issues…….notice that no where in there do you see that the activities should have occurred.

  22. raidermike says: Mar 29, 2011 7:39 AM

    WRONG 6th Sense —– the greedy uneducated ill-advised PLAYERS walked out of the CBA they agreed to a year before it was to expire ………… B-E-F-O-R-E the Owners locked them out.

    The players did not need to walk out a year early on a deal they agreed to and COULD JUST AS EASILY PLAYED THIS SEASON WHILE NEGOTIATING

    C’mon man — don’t be a D-Smith Homer Groupie

  23. realtimeeyes says: Mar 29, 2011 7:42 AM

    Some of these players were injured and need rehab; but their health benefits are gone. And many will face foreclosure on their homes if the paychecks stop for to long. Why would they not list these as “Irreparable harm”?

  24. packa7x says: Mar 29, 2011 7:44 AM

    @6thsense79

    You are wrong and the model you made will never work. Here’s why.

    First, you show the owner’s increase in gross totals, yet ignore individual numbers. Under the current system, a) some teams are losing BIG and b) all players are winning BIG (Trent Dilfer, Kevin Mawae, and Kurt Warner ALL said they could not believe they got that deal). So if you have 3 vocal guys all saying they got a great deal, don’t you think that deal is a little lopsided?

    But anyway, the reason it is a bad deal for the owners is because of UNSHARED revenue. Teams like Dallas make a ton of money while teams like GB have seen a $31 Million loss in profits over 3 years. If you need me to explain the difference between shared and unshared, you should probably stop talking about the labor deal until you understand that. Your numbers prove the players will get an increasingly better deal under the current model too. 2006 owners were making $50 mill more than the players, in 3 years $102 million+ for the players gives them an $52 million advantage.

    And yes, the evil, horrible, owners opted out of the CBA….BECAUSE IT WAS A HORRIBLE DEAL. And no the players aren’t asking for more…BECAUSE THEY GOT A RIDICULOUSLY GOOD DEAL!!!!!

    Since you seem to be pro player, let me ask you this. Why shouldn’t the owners, the guys who had the money and the foresight to make a childrens game into a $9 bill industry, be able to say, “woah! Hold on a sec, we’re not making what we should make, let’s reel things in a bit.” ? They are owners, they are managers. It’s normal for them to try to keep costs low. It’s not evil. Why should they pay players if the model is unsustainable? Why should they cave in when the NFLPA is being unreasonable? I mean…for gods sake listen to these guys. Adrian Peterson, Rashard Mendenhal, and Leonard Weaver ALL SAID NFL IS MODERN DAY SLAVERY!! That’s who you agree with? The players are out of touch.

  25. packa7x says: Mar 29, 2011 7:55 AM

    I never even got to the part where I proved your model wrong. If you set up a joint fund (first off the players wouldn’t agree to that, but anyway…) it’s unfair to a team who uses a lot and doesn’t leave any for the other teams. There’s no way to fairly do it.

    And would the owners agree to it? You’re missing the fundamental point that the model is unsustainable. Another few million won’t save the NFL teams that can’t keep up with rising player costs. He’ll it won’t even save Charlie Batch.

  26. packa7x says: Mar 29, 2011 8:01 AM

    @realtimeeyes

    You can quantify the damages.

  27. commoncents says: Mar 29, 2011 8:11 AM

    So…the NFLPA wants to puff out it’s chest and act all touch and not counter offer when a reasonable offer comes in but they want to make it seem like the league is picking on them and hurting them in ways they can never recover from??

    The NFLPA doesn’t deserve any compassion from the NFL!! What the NFLPA needs is lessons on how to budget their millions, rather than make it seem like it should be the owners that support them for the rest of their lives.

  28. packa7x says: Mar 29, 2011 8:27 AM

    Thank you, commoncents. I was thinking that exact thought as well. Why do players deserve any irreparable harm when they could have agreed to the new terms or kept negotiating? It’s not 100% the owners fault. The players are to blame as well.

    This whole thing reminds me of divorces and alimony. The breadwinner could get treated like crap and truly not want a relationship, but because they make a good amount of money, they have to pay the other person alimony in some cases for the rest of their lives. It’s not the breadwinners fault that their partner didn’t plan well or get a job, but in the end they’re forced to take care of them long after they’ve gotten anything out of it.

  29. zaggs says: Mar 29, 2011 8:32 AM

    “It’s a strong point.”, no its not. The point assumes all players will find a team and will not be cut before the start of the season. If the players even come close to making a valid point, well they should have countered the leagues offer instead of decertifying.

  30. 3octaveFart says: Mar 29, 2011 8:46 AM

    lt2369 says: Mar 29, 2011 1:36 AM

    “Their argument would be more persuasive had they not walked away from the negotiating table and caused this work stoppage.”

    Right. The players “caused” the lockout.

    The same lockout that was in the owners plans since day one. They planned for it, and prepared for it with their attempt at lockout insurance, and refused to even talk until the very day after Doty took away their war chest and basically forced them to start negotiating.

    Right, the players locked themselves out.
    Good call.

  31. hail2tharedskins says: Mar 29, 2011 8:53 AM

    6thsense79 says: Mar 29, 2011 7:24 AM

    A few things wrong with your post. You claim the league can’t be sued because they’re not doing anything not agree upon in the CBA. Small problem…..there is no CBA. The last one expired a few weeks ago.

    You also claim the lawsuit is baseless as none of the activities described in the lawsuit has occurred but that doesn’t make sense….the activities don’t and shouldn’t have to occur…That’s besides the point if the activities occurred then the requestor is already facing harm…Ruling on irreparable harm or damage is based on 3 factors….the likely hood the requestor will prevail, the harm the requestor will suffer if an injunction is not granted, and the irreparable harm the opposing party
    will suffer if the injunction wrongly issues…….notice that no where in there do you see that the activities should have occurred.
    ——————–

    A few things wrong with your post. First, I never said the league couldn’t be sued. I said the activities claimed in the lawsuit all occured under the previous CBA. I know when the CBA ended, a lawsuit couldn’t even be filed if a CBA was still in effect. The expired CBA protected the owners against any anti-trust claims for actions they engaged in under the CBA. So, until the league actually engages in those actions without the protection of a CBA, the claims in the lawsuit are baseless. Get it now?

    Furthermore, you are confusing the lawsuit with the injunction. The injunction is claiming irreparable harm, not the underlying lawsuit. The lawsuit is claiming anti-trust violations like a salary-cap, restricted free-agency etc. None of those violations have occurred outside of the protection of the CBA, what the injunction is seeking is to force the league to do business again so that those violations can occur and give merit to the underlying lawsuit.

    Lastly, you should know that a ruling on a preliminary injunction comes down to 4 criteria (not 3). Irreparable harm is just one of the three. One of the criteria that must be met is substantial likelihood of success on the merits of the underlying case. Here as I point out, if the injunction isn’t granted they can’t possibly show a likelihood of success on the merits of the underlying case because without the injunction the underlying case would fail to even be factually correct. And this is why I don’t think judge would be willing to grant an injunction – if you combine the arguments of the players lawsuit and brief in response for injunction they are saying ‘we will be irreparably harm if our anti-trust rights aren’t broken.’ You have to remember the underlying lawsuit is suing to prevent the league from engaging in said actions, then motion asked the court to force the league to engage in those actions.

    I suggest you actually read the lawsuit and motions and understand the difference between the actual lawsuit and the motions for preliminary injunction and then we can have an opinionated discussion, but you have to get the facts right first!

  32. vetdana says: Mar 29, 2011 9:00 AM

    prevaricating…….does that mean what I think it means? Its about time we get some silver tongued oration on this blog !

  33. bleedgreen08052 says: Mar 29, 2011 9:03 AM

    At this point I don’t care who makes the nickel and who makes the hay-penny. End the goddamn lockout, get free agency moving and don’t destroy the NFL for 10 years…. See the NHL. They still haven’t fully recovered from 2002. The losses of a lock out will be more than can be recovered in a new 5 year CBA. I think at this point its a pride thing and neither side wants to say I didn’t burn them.

    The best solution at this point is to agree to one more year under the recently expired CBA while this all get hammered out. When issues aren’t very very time sensitive its a lot easier to come to a fair and agreed upon resolution. A full year to calmly negotiate a resolution seems much more promising than the 3 weeks that are left before the draft.

    Remember FA and Player trades are a huge part of the dealings of a draft.

  34. melikefootball says: Mar 29, 2011 10:40 AM

    Woe on me, the tears can’t stop for the players. If things are such a hardship than get your butts back to the table. How many of these players are sitting on the coach playing video games today? You would think the players on the practice squads and players with not much time and contract worth would be shouting through the roof. No we only here from top players as Manning, Brady and Brees which I’m sure ate breakfast this morning without much worry.

  35. airraid77 says: Mar 29, 2011 12:14 PM

    If the owners want, they can and will just shut it down……..that is irreparable.
    The players are owed nothing.
    The players took this to court….
    thereby stoppped negotiating…….

  36. mackie66 says: Mar 29, 2011 2:27 PM

    If we are to believe the 32 NFL teams are seperate business then how can a judge order the owners to open their doors to the players absent a CBA ? There are no games being played. NO practice. No OTA’s, no nothing.

  37. hail2tharedskins says: Mar 29, 2011 2:59 PM

    6thsense79,

    Did you listen to PFT Live today? It was amazing how the same arguments this non-lawyer raised last night and were challenged by you as not knowing what I was talking about, just happened to be the same issues that Cornwell raised today on the show. So, not only did I have my facts straight, but apparently my observations in evaluating the legal arguments was pretty dam keen as well.

  38. scontis says: Mar 29, 2011 5:11 PM

    My God!! These players are not only aragant, they are STUPID!!!!!

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