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Judge Nelson could be trying to soften up the league for settlement talks

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Like many of you, we’ve been monitoring today’s developments in Minnesota federal court via Twitter.

By most accounts, Judge Susan Nelson peppered NFL counsel David Boies with questions, while asking far fewer of his counterpart, Jim Quinn.  (Curiously, the players opted to put Jeffrey Kessler on the sidelines.  It possibly means that NFLPA* executive director DeMaurice Smith realizes that Kessler, when speaking in court, can be a tad abrasive.)

In my own experience, the side that gets the bulk of the questions is the side that is teetering on the brink of defeat.

Though hardly a universal practice, conscientious judges want to be sure that the party against whom a ruling will be entered has had a full and fair chance to make its case.  And conscientious judges also want to be sure that they are right — so they fashion questions aimed at soliciting answers that will confirm, or possibly debunk, the direction in which the judge is leaning.

Of course, Judge Nelson could hear enough from Boies to cause her to reconsider things.  It’s also possible, given that the parties engaged in three weeks of mediation before the suit was filed, that Judge Nelson perceives the league to be in need of a kick in the butt in order to kick-start meaningful talks aimed at resolving the situation.  By creating the impression that she’s leaning toward lifting the lockout, the league could become inclined to return to the table, without insisting on collective bargaining over a litigation settlement.

Indeed, if Judge Nelson orders the parties to go to mediation, the league will have no choice but to comply.  This time around, the mediator would also have some power, since the mediator would be able to report back to Judge Nelson if one side or the other is being disrespectful or unreasonable.

Or maybe the league will decide to take its chances on appeal to the U.S. Court of Appeals for the Eighth Circuit.

Either way, many judges send messages to the parties with the questions asked at a hearing.  At this point, there’s a good chance that Judge Nelson wants the NFL to realize that there’s an incentive to settle this thing quickly.

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44 Responses to “Judge Nelson could be trying to soften up the league for settlement talks”
  1. alltee says: Apr 6, 2011 4:13 PM

    i think jud nelson would be great, look how he got the group of varying characters together in the breakfast club

  2. bigsuede says: Apr 6, 2011 4:20 PM

    It is getting clear that the Owners have stepped on a hornets nest. It would be in the NFL’s interest to just go with a 50/50 split on all revenue with the players and work that deal indefinitely.

    This deal would give the owners a bit more money and more importantly keep them from the “free-market” NFL that would devalue the TV contracts with the loss of parity and the teams worth themselves as there would be no limits on allowing teams to join.

  3. 2011to2020lions says: Apr 6, 2011 4:20 PM

    Please settle this quick!!! I want my off season!! I want my Football!!! I want lower prices at concessions!!!! I want a BEER!!!!!

  4. whatsupbb415 says: Apr 6, 2011 4:21 PM

    Seem’s like Judge Nelson is a football fan and she wants this lockout over ASAP so her Vikings can trade for Kolb lol… l just worry if she lifts the injunction or forces the NFL to follow a new set of rules that opening a can of worms that can’t be closed and it’s giving the players more power then the men that pay them.

  5. j0esixpack says: Apr 6, 2011 4:22 PM

    Any qualified lawyer will tell you not to read too much into the questions asked by a judge during arguments.

    In some cases they’re just playing devil’s advocate or in others trying to make sure they glean certain points they already know out of the lawyers and into the record.

    That being said the NFLPA was wise not to spark the ire of the judge by bringing the “big names” into the courtroom to fan the flames of media hype as some have advised them to do.

    Let’s all just hope cooler heads prevail and a settlement is reached.

  6. commoncents says: Apr 6, 2011 4:23 PM

    On the matter of irreparable harm, doesn’t it say anything that no players showed up? it doesn’t seem like they care enough to go represent.

    On the matter of decertification, can’t she see that is a sham???

  7. nashmax says: Apr 6, 2011 4:24 PM

    Wouldn’t mediation with an empowered mediator actually be (binding) arbitration?

    You’re the lawyer, not me, so help us out here.

  8. schemefactory says: Apr 6, 2011 4:25 PM

    judd nelson was HARSH in breakfast club..

  9. bengalanthony13 says: Apr 6, 2011 4:26 PM

    Sooooooo….good news, then?

  10. dave0320 says: Apr 6, 2011 4:27 PM

    Judge Nelson is a Ms.

  11. irjonny says: Apr 6, 2011 4:27 PM

    where on twitter are you getting info on the court hearing

  12. stevez51 says: Apr 6, 2011 4:28 PM

    Would she make them reform as a union so they can talk to the league??

  13. biggerballz says: Apr 6, 2011 4:28 PM

    judge judy should be handling this case. I’d love to see her rip into both parties.

  14. airraid77 says: Apr 6, 2011 4:28 PM

    I would be shocked if the owners folded after todays ruling…….
    they had to have know in some way shape or form this could happen in a state as liberal as minneesota.
    If they dont take it to the the 8th circuit, I would utterly disappointed….they will literally have had their bluff called.

  15. footballisking says: Apr 6, 2011 4:28 PM

    Another victory for the players (yes I know all of the owners interns that have taken over the comment pages will attack me with thumbs down)

  16. BleedingSilverAndBlack says: Apr 6, 2011 4:29 PM

    Wasn’t Judge Nelson in “The Breakfast Club”?

  17. johnnyoclock says: Apr 6, 2011 4:39 PM

    In other words, annother biased judge has made up her mind for 2 weeks before actually hearing the case, and is covering for herself. Luckily there’s an appeals process. Hopefully the next judge will do it right.

  18. zn0rseman says: Apr 6, 2011 4:41 PM

    Translation:

    The judge in this case is an Obama appointee and thus is nothing more than a union lapdog. As a result she’ll pretend that the decertification of the union wasn’t a complete sham (which it obviously was) and try to put the NFL in as bad of a legal position as possible so the the union will gain leverage at bargaining table. Which has been the union plan all along.

    This action by the judge, much like the actions of the judge in the union case in Wisconsin, will be contrary to the actual law and proves once again that many judges in this country are becoming increasingly partisan and uninterested in justice or the rule of law, unless it coincides with their personal political beliefs and affiliations.

    Judges need to be accountable for these rulings… otherwise the ‘legal system’ will continue to be joke that it is.

  19. jcaro5566 says: Apr 6, 2011 4:42 PM

    If I were the owners I would threaten to cut ticket prices across the board to the point where the revenue percentages the players want would result in much less than the dollar figures the owners are offering today. This way the players would have two options. Insist on their percentage of 50% of the revenues which would result in lower overall revenues and reduced income, or take the owners offer and ultimately make more money.

    With the players being stupid and arrogant enough to insist on taking the higher percentage of the revenues, at least we the fans would win as a result of getting lower ticket prices.

  20. ballergac says: Apr 6, 2011 4:43 PM

    my question is if it does go back to mediation…. court ordered… how in the world does the nfl have any leverage? its been pretty much laid out by the judge. hey the players have a good case… so the players knowing that will just say hey take this offer in mediation OR we will go back to court where u will LOSE.. thats unfair in my opinion…

  21. supashug says: Apr 6, 2011 4:43 PM

    “You mess with the bull you’ll get the horns”

    Jud Nelson

  22. FoozieGrooler says: Apr 6, 2011 4:45 PM

    Boies must know he’s in trouble.
    He’s already resorted to challenging the judges’ authority on the matter:

    3:26 p.m. ET: The sides reconvened after a recess at 3 p.m. ET. Boies then told Judge Nelson that she simply doesn’t have the authority to issue an injunction.

    He cited the Norris-LaGuardia act that says: “No court shall have the jurisdiction to issue a restraining or temporary or permanent junction in any case involving or growing out of a labor dispute.”

  23. bigsuede says: Apr 6, 2011 4:49 PM

    airrad- there is very little chance of a ruling of lifting an injunction would be overturned by the 8th circuit. The appeals court would be looking not be able to evauluate the trial on its merits but whether Nelson overstepped discretion.

    The biggest point of contention would be whether the case was tried in the correct jurisdiction- which was why most of the questions asked today was about jurisdiction.

  24. ronithan23 says: Apr 6, 2011 4:55 PM

    nashmax says:
    Apr 6, 2011 4:24 PM
    Wouldn’t mediation with an empowered mediator actually be (binding) arbitration?

    You’re the lawyer, not me, so help us out here.
    —————-
    It would only be binding arbitration if the third party could enforce a deal. The empowered mediator could only report back to the Judge that one party was acting in bad faith and that party could be fined, sanctioned etc. It would have no direct bearing on the creation of a deal between the two primary parties.

  25. manderson367 says: Apr 6, 2011 4:56 PM

    So if they judge does lift the lockout can’t the NFL then declare an impass and impliment their last offer as the rules for the coming year?

  26. ronithan23 says: Apr 6, 2011 4:59 PM

    ballergac says:
    Apr 6, 2011 4:43 PM
    my question is if it does go back to mediation…. court ordered… how in the world does the nfl have any leverage? its been pretty much laid out by the judge. hey the players have a good case… so the players knowing that will just say hey take this offer in mediation OR we will go back to court where u will LOSE.. thats unfair in my opinion…
    ———-
    Rationally, it does the owners a favor if the Judge thinks they have a really weak case. It’s telling them that if they go to court, they’re going to lose, so get any deal that you can in negotiation because its the best you’re going to get, even if that’s only getting 5 cents on the dollar.

  27. warhorse007 says: Apr 6, 2011 4:59 PM

    @znOrseman

    A true Robin Hood shot.

    Split the arrow.

  28. 505phillyguy says: Apr 6, 2011 4:59 PM

    The league would be wise to get back to the bargaining table as soon as possible. If (and when) they get a ruling against them, they will essentially have no leverage to negotiate against them.

    All of those who are consistently siding with the owners on these comments seem to show a complete lack of understanding of the whole situation. The players did not walk away from the negotiating table because they wanted to litigate…they did so because they were forced to by the league’s decision (that they made 2 years ago) to opt out of the CBA and impose a lockout.

    Here is a summary of what has happened since then so you might gain a clearer understanding of the situationL

    (1) The 32 teams that comprise the NFL are a monopoly that is allowed to exist under an exemption to the anti-trust laws. As such, special laws apply to their conduct with their labor force. So quit saying “well if I asked for more money my boss would fire my ass” because your situation has ABSOLUTELY no application to the situation at hand.

    (2) As a monopoly, the 32 teams are now locking out all of the individual players of the NFL who are no longer a union because they decertified.

    (3) While a lockout may have been legal against a union, it is not legal against the class of individual players. Essentially, it is illegal for a monopoly to deny workers (who have no other option for employment due to the monopoly) an opportunity to work.

    (4) The decertification is not a sham because it was specifically provided for in the CBA and the league waived its right to assert that argument in defense of the lockout.

    (5) In light of the preceeding, it is inevitable that an injunction against the lockout will be granted and the league will be forced to operate under the rules of the existing CBA until a new CBA can be agreed upon.

    (6) The representatives for the class of players (no longer a union) can negotiate a settlement (CBA) with the league on behalf of the players.

    Hopefully, this clears it up.

  29. bobwsc says: Apr 6, 2011 5:00 PM

    Judge Smails would have this worked out by now. after all, he “sent boys younger than you to the gas chamber. didn’t want to do it…felt he……owed it to them.” that’s the kind of Judge who takes care of biz.

  30. airraid77 says: Apr 6, 2011 5:04 PM

    bigsuede,
    the way I now understand…an injunction is another roadblock to a season.
    even if the judge lifts the lockout their are no rules for the league to run…………..
    what the he ll do i know though.

  31. armchairgm9 says: Apr 6, 2011 5:15 PM

    Are we forgetting that it was the owners who made the last (and pretty decent) offer? And that it was the players who said no thanks, decertified, and walked away from mediation?

    So why soften the owners up? Only thing to soften them up on is opening their books and it doesn’t sound like that’s where she’s leaning.

    Seems to me that she should be softening up the NFLPA* to get them back to the table and give an honest effort to mediate.

  32. stevecmh says: Apr 6, 2011 5:20 PM

    manderson367 raises a good point:

    So if they judge does lift the lockout can’t the NFL then declare an impass and impliment their last offer as the rules for the coming year?
    ________________________________

    As I understand it, the owners cannot claim an impasse because they are not in negotiations with a union (since the players are no longer represented by a union).

    If the decertification is voided, then the NFLPA will simply return to negotiations. Then, they will look forward to Judge Doty’s decision on the damages owed by the owners for failing to maximize TV revenues under the prior labor agreement.

  33. brambo67 says: Apr 6, 2011 5:22 PM

    johnnyoclock says: Apr 6, 2011 4:39 PM

    In other words, annother biased judge has made up her mind for 2 weeks before actually hearing the case, and is covering for herself. Luckily there’s an appeals process. Hopefully the next judge will do it right.

    _________________________________________

    Whilst I think the players are being unreasonable and that their case would ultimately bring about the downfall of the NFL, I think that if Judge Nelson DID send them to arbitration it would be a good thing.

    IMHO the de-facto NFLPA never negotiated in good faith.

    IMHO the fact that a number of NFL teams are willing to show their books points out the reality of the case.

    Yes, some clubs (Bengals, Buccs, Cards – cough, cough) do pay the owners and owners families large sums of money and the NFLPA* want to make “political” capital out of this. At the same time though, so long as those amounts haven’t increased drastically, the proof of what the owners are saying is true.

    The cynical, nasty part of me would like the players court-case to be taken to it’s fullest. That way we’d all know that Smith, Kessler and Brady et al. only had the few in mind. Under pure anti-trust legislation 95% of all NFL players would be worse off. The Brady, Manning and Brees of the NFL might earn $40m a year, but the gunner on ST, the long-snapper and nickel-back or slot receiver would earn a fraction of what they currently do. Pure financial wisdom states that whatever extra money you give to a Brady or Manning must come from elsewhere.

    And the nasty, cynical side of me would like to see these a-hole’s legacy remembered as bringing about the downfall of the NFL.

  34. brambo67 says: Apr 6, 2011 5:26 PM

    manderson367 says: Apr 6, 2011 4:56 PM

    So if they judge does lift the lockout can’t the NFL then declare an impass and impliment their last offer as the rules for the coming year?

    _______________________________________________

    From everything we’ve heard, we’d start 2011 under the rules enforced in 2010 – which the players would then sue for damages against, stating that they were stopped from having “normal” free agency – and that is a lawsuit they would win.

    If Judge Nelson stops the lock-out, the owners WILL pay damages one way or another!

  35. bigsuede says: Apr 6, 2011 5:34 PM

    no manderson- an impass only happens in a labor dispute between a employer and a UNION. The NFLPA is no longer a union- therefore impasses are impossible to argue.

    If the injunction is lifted, then the NFL can implement whatever rules they want. The NFL could take out all salary caps, let all unsigned players become free agents and hold no teams to restrictions and pass muster under a anti-trust lawsuit. The problem is that by doing so- the owners would lose much more money in the long run, than had they just continued with the old collective bargaining deal.

    If the injunction is lifted- the NFL will be in much worse shape than they were during the last three years, that is for sure.

  36. fatelvis77 says: Apr 6, 2011 5:36 PM

    Good grief, Charlie Batch! Can’t believe the vitriol and the lack of understanding of the applicable law here. The NFL owners are a monopoly and have monopoly power. If they abuse that monopoly power, or restrain free trade in any significant way, they can be enjoined from doing what they are doing and held for triple damages plus attorneys fees. By locking out the players they are preventing the players from exercising their chosen livelihood and earning the amounts of money they would be able to earn if there were no monopoly and the teams actually bid against each other for the services of, not only the best players, but the fill-ins and role players that are necessary for a successful team.

    On the other hand, if the NFLPA is the sole bargaining agent for the players, and the players are all (and must be) members of that union, then antitrust doesn’t apply and the owners can lock out the players if the players refuse to bargain in good faith.

    There is ample precedent for the decertification of a union. There are precedents for finding that such a decertification was a sham. However, the bargaining power that a Brady, Manning, Brees etc would have if the teams actually competed with one another for their services is substantial. In a purely free marketplace would it be unrealistic to think Manning could be earning $35M per year?

    The stakes are huge and the owners have far more to lose in litigation than the players. In a purely free market system many players would be able to command far more than they make now, but most would not. The owners would still have to have budgets for payroll. And there is certainly no guarantee that the teams with the highest payrolls would win. As now, the teams with the best management/coaching would win.

    The results of this lawsuit will not destroy football, or even make it less competitive. And for those of you who think the U.S. Supreme Court will ever even hear this case, let alone bail out the owners, welcome to fantasy island. This case will be settled, either before or after the judge’s ruling, but relatively soon. We’re not missing football.

  37. schemefactory says: Apr 6, 2011 7:45 PM

    brambo67: did you just say ‘whilst’?

  38. zn0rseman says: Apr 6, 2011 9:01 PM

    fatelvis77 says:
    Apr 6, 2011 5:36 PM

    The NFL owners are a monopoly

    By locking out the players they are preventing the players from exercising their chosen livelihood

    The bargaining power that a Brady, Manning, Brees etc would have if the teams actually competed with one another for their services is substantial. In a purely free marketplace would it be unrealistic to think Manning could be earning $35M per year?

    The results of this lawsuit will not destroy football, or even make it less competitive.

    ————————-

    Allow me to retort to these specific statements…

    1: The NFL is not a monopoly. There are other leagues out there including the UFL and AFL.

    2: The players in a lockout can play wherever they want. The CFL, AFL and UFL would love to hire them.

    3: In a friend free market system the NFL would be destroyed. The system they have now generated competition and caused a semi-level playing field for teams, which keeps the game interesting for a much larger audience. That audience draws massive profits, which is what allows owners to afford multi-million dollar salaries. In the unique case of the NFL, a truly free market system eliminates that level playing field and the profits that come with it. Lack of profits means lower payrolls.

    4: The elimination of the level playing field, which this lawsuit seeks to accomplish, will destroy the NFL. Two or three teams will dominate the rest and the fans will stop watching…

    Which might be a good thing since the AFL is more fun to watch anyway, and they don’t rig games for Pittsburgh.

  39. hawkdawg88 says: Apr 7, 2011 12:24 AM

    There are too many would-be lawyers on this site who speak with seeming absolute authority on subjects they quite evidently know too little about.

    The NFL is not “a monopoly that is allowed to exist under an exemption to the the anti-trust laws.” The NFL, in fact, has no such blanket exemption. See Radovich v. NFL. Major League Baseball does. See Toolson v. New York Yankees.

    That said, a horizontal agreement among owners not to employ a non-unionized set of players may well violate the Sherman Act. Whether an injunction is appropriate, as opposed to damages, is now before Judge Nelson.

  40. edgerinn says: Apr 7, 2011 3:26 AM

    I’m no lawyer, but from a legal standpoint I don’t think the existence of the AFL and UFL necessarily means the NFL isn’t a monopoly. Do either of those entities compete with the NFL in any way that does not allow them to operate as a monopoly? Does their existence impact in any way the contracts they offer their players, carriers, advertisers, and so on?

    I see no evidence that networks feel the UFL is a possible substitute for the NFL and that they can therefore get NFL games for less with the leverage that they can run UFL games if the NFL doesn’t take what they are offering. I think the existence of the AFL and the fact that players can play there has zero impact when players negotiate their NFL contracts, its 100% about what other NFL teams will give them.

    So, if I had to lay money on whether the NFL would be considered a monopoly by anti-trust law, I’d bet the house that it was. It certainly operates as one by any useful real world criteria. While other pro football leagues exist, they don’t compete with the NFL.

  41. zn0rseman says: Apr 7, 2011 9:22 AM

    @edgerinn
    By your logic, any business that puts forth a superior product to their competition is a monopoly?

  42. sandyf79705 says: Apr 7, 2011 10:57 AM

    To many here think they know what is what and the reality is one thing and one thing only. It is who gets the upper hand in what will be a new CBA.

    In the failed strike of 1987, the players union decertified and six (6) years later the NFL and players “association” negotiated a new CBA. Part of the bargaining was that the NFL insisted that the association once again be a union in order for the NFL to keep their anti-trust exemption. (this is all filed in the legal brief). Also, the NFL at the time agreed that the union could decertify if needed and hope was that they wouldn’t ever need that ploy.

    The reason the NFL filed a complaint with the NRLB about the decertification being a sham was not because they thought the NRLB would rule for them because it is an almost certainity that they will not, it is because the NRLB will take months if not years to rule thereby forcing the players to either negotiate quickly or risk losing paychecks in September similar to the players coming back off of the strike because they couldn’t stand to lose a paycheck. It is a good ploy by the NFL.

    Also for those to young to remember or just forgetful, when Upshaw negotiated the last CBA and the owners signed off on it (30-2), it was hailed by the media and the owners as a win for the NFL and a loss for the players. Upshaw was accused in the media and by players as selling out the union. A “bad deal” so to speak, my how things have changed.

    The owners decided two years ago to end the CBA because it wasn’t fair to them, change of heart from the initial thoughts and embarked on a plan for the lockout. This isn’t for debate and they actually said it and was actually reported two years ago. So why did they wait until 30 minutes before the union decertified to present the first real stab at an agreement. Because it was there plan. They knew the union would decertify and file a lawsuit. They also have a game plan worked out if the judge lifts the lockout. They have had a plan all along. Not to believe that would be pretty stupid by all of us.

    It is not to say the union doesn’t have a game plan also. They do. But it is as in a football game, both teams go in with a game plan and if both game plans are good it probably will be a close finish but like in any game plan if the fumbles and turnovers go mainly to one side, it probably will not be close. Safe to say that both sides in this fight are waiting for that turnover to slant the game in their favor.

    The media will hype this anyway they can. The only real losers are the fans who are waiting for the NFL year to begin. Most of us have pick a side, either owners or players, but the fact is there will at some point be a new CBA and both sides will do alright but well, it is we fans that ultimately lose.

  43. edgerinn says: Apr 7, 2011 12:42 PM

    @znorseman
    No, my logic was that when one firm controls a supply or service to the point that they aren’t susceptible to market pressures of competition that they are a monopoly, and that the existence of the AFL and UFL doesn’t represent competition to the NFL in that way. The only competition the NFL faces is from the NCAA, and that doesn’t really count for several reasons in that

    1. the NCAA is amateur

    2. The NCAA and NFL generally act cooperatively rather than competitively in that they don’t compete for players and they don’t run games opposing one another.

    Is the combined revenue of the AFL and UFL even 1% of the NFL?

  44. thelockoutbeard says: Apr 7, 2011 1:30 PM

    The Lockout Continues grows on and so does the length of my Lockout Beard! I’m not shaving until they start playing again.. You can follow me on twitter to see the progression of my beard and the lockout. Follow me @thelockoutbeard

    -TheLockoutBeard-

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