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Ten things to know about the Wednesday court hearing

scales-of-justice-ap AP

Tomorrow, the first major skirmish in the antitrust lawsuit filed by the players against the NFL occurs in Minnesota.  We’ve said plenty about it over the past 24 days, and we’ve decided to cobble together a 10-item summary of the most important things to know about one of the most important court dates in the history of the league.

1.  What’s it all about?

The players, faced with the threat of a lockout, opted to shut down the union and sue the NFL for violation of the antitrust laws.  The primary argument is that any effort by the league to behave collectively after the union disbanded violates the antitrust laws, because the league is made up of 32 separate businesses that can’t agree to act in concert.

The primary goal of the lawsuit is block the lockout.  Toward that end, the players filed a motion for what the legal process calls a “preliminary injunction,” a fairly common device that seeks a fairly extraordinary remedy.  The players basically want to obtain now one of the things they would get if they win — an order preventing the league from preventing the players from working.

The arguments are simple.  The players believe that the union properly shut down, requiring the 32 teams to deal with a non-union workforce, and subjecting the league to antitrust liability for collective actions or rules.  The NFL believes that the union decertification was a sham aimed at acquiring leverage via the antitrust lawsuit and the attempt to end the lockout.

To get an injunction while the case continues, the players must persuade the court that they will suffer “irreparable harm” absent a lifting of the lockout.  A legal term of art, “irreparable harm” refers to injuries that can’t be remedied by an award of money damages entered at the end of the case.

The league believes that, if the players win, they can be compensated financially for all lost wages and bonuses and other forms of compensation.  The players believe that the disruption to already short NFL careers cannot be fixed with an award of cash later.

2.  Why is it in Minnesota?

Federal court in the Twin Cities has long been the forum of choice for the NFL’s players in labor cases, due in part to the development of a stream of past precedents in that court that can be applied to all future cases.  (Courts are guided by interpretations of the law made by other courts.  When the other court is the same court that is handling the current case, the precedents apply with greater force.)

The players likewise surely hoped that the case would land on the docket of Judge David Doty, who handled the Reggie White antitrust case two decades ago and the settlement agreement that became a Collective Bargaining Agreement, which applied for 18 years before expiring last month.

3.  Who will make the decision?

After getting the hot potato treatment from two other judges, who recused themselves due to conflicts of interest, the case was assigned to Judge Susan Nelson.

Previously a U.S. magistrate judge (which is sort of a “junior judge” in the federal system, handling many of the procedural disputes and related issues that the district judge would otherwise have to resolve), Judge Nelson was promoted in December 2010 via nomination from President Obama and confirmation by the Senate.

The fact that she was nominated by a Democratic President and confirmed by a Democratic Senate will cause many to assume that she’ll be inclined to apply a liberal/progressive ideology, which in theory would favor the players.  Federal judges, however, have lifetime appointments.  Once on the job, they are free to step away from any of the partisan maneuverings that helped them get the position in the first place.  That said, plenty of federal judges remain true to the philosophical leanings that drew them in the first place to the party whose President provided the nomination.

4.  When will a decision be made?

No one knows.  Judges tend to take motions of this nature very seriously, given that one side is arguing that serious harm that can be fixed through a cash award will happen without immediate intervention.

It’s possible, but very unlikely, that Judge Nelson will issue a ruling from the bench at the end of the hearing.  The more likely outcome is that the judge will take the issue “under advisement,” with a ruling emerging suddenly and without warning at some point in the not-too-distant future.

In our view, there’s no reason why a ruling can’t be issued within a week.

5.  Will the decision be appealed?

Absolutely.  But the decision issued by Judge Nelson will have plenty of influence over the final outcome, since the U.S. Court of Appeals for the Eighth Circuit reviews decisions of this nature under the “abuse of discretion” standard.

In other words, the appellate court won’t review the decision on a de novo basis (which is Latin for, essentially, “from scratch”).  Instead, the Eighth Circuit must uphold the decision — whatever it may be — unless it is determined that Judge Nelson acted unreasonably.

It’s somewhat similar to the standard that applies when a referee reviews a call on the field via replay.  The referee needs to refrain from substituting the judgment of the official who made the call with the judgment of the referee and instead search for an obvious mistake.  When the Eighth Circuit considers Judge Nelson’s ruling, deference of that general nature must be applied.

6.  Will the lockout end before or after the appeal?

It depends on whether Judge Nelson issues an order “staying” the injunction.  If she does, the lockout will remain in place until the appeal ends.  If she doesn’t, the doors to the 32 team facilities would swing open, allowing free agents to be signed and trades to be made.  Then, if the appellate court decides that Judge Nelson was wrong, the doors would close again.

Most observers expect Judge Nelson to stay the injunction pending appeal.

7.  Will the case end up in the United State Supreme Court?

If the Eighth Circuit determines that the lockout should be lifted, it’s unlikely that the injunction would be delayed pending further appeal to the U.S. Supreme Court.  The Supreme Court agrees to consider only a small percentage of the cases presented to it, and the process could take months.

Thus, it’s far more likely that the injunction would take effect, and that it would be subject to an unlikely reversal by the Supreme Court, which would take the case only to resolve a clear difference of opinion among the federal circuits or to rectify a very clear and obvious error of law.

8.  What happens if the players win?

The lockout would end, free agency would begin, trades would be made, offseason workouts would start, OTAs and minicamps would happen, training camp would begin on time, and the full season would be played.

Also, the Brady antitrust lawsuit would continue to proceed, with the next target likely being the rules put in place by the NFL after the lockout.  Any limitations on free agency would, for example, be subject to the antitrust laws.  The league calls it a “head I win, tails you lose” tactic by the union, but our take is and has been that the league isn’t required to violate the antitrust laws, and that any limitations on full and complete competition among the 32 teams would be subject to potential antitrust scrutiny.

Along the way, the players would be playing football and getting paid, giving them much more leverage in any eventual settlement talks that occur.

9.  What happens if the owners win?

The lockout would continue.  And it would end only if an agreement is reached by the parties on a new labor deal.

The owners would have considerable leverage, especially if once the players start missing game checks.

10.  Can this be settled?

Yes, but first the parties have to talk to each other.  Since March 11, they haven’t.

The league refuses to engage in discussions aimed at settling the lawsuit, and the NFLPA* won’t engage in collective bargaining, since the NFLPA* believes it no longer is a union.  Though the positions simply may be cover to allow the parties to hunker down in the hopes of winning the motion to lift the lockout, Judge Nelson can order them to return to mediation, at any time.

The best approach would be to order mediation to resume immediately, and for Judge Nelson to explain that, if the situation isn’t resolved in, say, two weeks, she will issue a ruling.  Both sides then should take advantage of the uncertainty to justify doing the best possible deal.

And that’s the best long-term outcome — a negotiated labor deal that both sides view as acceptable.

That said, we’re not holding our breath.  Or any other bodily function.

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49 Responses to “Ten things to know about the Wednesday court hearing”
  1. freddyfelder says: Apr 5, 2011 10:19 PM

    11. Who Cares!

  2. northeastern31 says: Apr 5, 2011 10:20 PM

    Long story short….
    The Fans to the NFL and NFLPA ” You are on thin ice and the sun is shining. “

  3. rcali says: Apr 5, 2011 10:25 PM

    In the end, the only people who are really damaged are the employees of clubs who have been layed off, had pay cut, or forced to take days off without pay. Players have a lock out fund. But go ahead everyone. Buy those season tickets.

  4. dabears72 says: Apr 5, 2011 10:27 PM

    Got it. Now this all makes sense.

  5. dadindebt6 says: Apr 5, 2011 10:28 PM

    I could care less if the players feel the final agreement is fair or acceptable. I want an agreement that secures the long term vibility of the league and the teams. That is certainly what the freshmen, sophmore, and juniors at the college football factories are hoping for. Today’s players just don’t seem to realize that without a strong and viable league, there are no large contracts and the public will get their football fix at the college and high school level like they did in the 40’s, 50′, 60’s, and even the 70’s.

  6. neilanblomi says: Apr 5, 2011 10:32 PM

    So based on 8 and 9 everyone should be pulling for the players to win the ruling as the off-season and football continues.

    If the owners win the lockout continues…seems to be a no brainer for fans then correct?

  7. tony420 says: Apr 5, 2011 10:36 PM

    11. Mike Vrabel will get caught stealing the judge’s gavel.

  8. nflfan101 says: Apr 5, 2011 10:39 PM

    It looks to me like the players have a “homer” for a judge. The judge and D. Smith both have ties to the character in the White House. So much for a fair unbiased hearing.

    I disagree with you when you say that “The primary goal of the lawsuit is block the lockout.” The primary goal is to give D. Smith (a lawyer) cover so that he either (1) wins and gets the rich players more money or (2) he loses and can blame the judge for his not being able to either keep the same amount of money or get less money for the players.

    This whole mess is not about what is the best deal for the players as a whole, but about protecting D. Smith and he doesn’t care if he destroys the NFL in the process.

  9. rovibe says: Apr 5, 2011 10:41 PM

    We need someone to translate this into baby talk so JimmySmith can understand it.

  10. istateyourname says: Apr 5, 2011 10:47 PM

    Judge Nelson was promoted in December 2010 via nomination from President Obama and confirmation by the Senate…

    Doesn’t De Smith have ties to Obama too? The fix is in!

  11. Deb says: Apr 5, 2011 10:52 PM

    The best approach would be to order mediation to resume immediately …

    Didn’t realize this was an option. If the judge can force this collections of numbnuts back to the negotiating table, that would definitely be my choice of outcome from this hearing!

  12. terrellblowens says: Apr 5, 2011 10:57 PM

    If the players win, is the salary cap still nonexistant?

  13. bucforever says: Apr 5, 2011 11:00 PM

    This whole thing makes me sick. I will now stop participating in this madness until it is resolved. thank God for MLB. Goodbye.

  14. phinfan says: Apr 5, 2011 11:06 PM

    If the players win this court, can they spike the judges gavel or will they be flagged for excessive celebration?

  15. thefiesty1 says: Apr 5, 2011 11:29 PM

    Oh no. You didn’t tell us that she was an Obama appointee and probably has liberal views. The owners may be screwed tomorrow. We can only hope for item 9 and get these greedy players back to the table.

  16. trbowman says: Apr 5, 2011 11:53 PM

    Let’s just fast forward to April 28th already

  17. mayfieldroadboy says: Apr 6, 2011 12:01 AM

    What happens if the NFL decertifies? What happens if the 32 cities housing a football franchise, name, logo, etc band together in some kind of Football Owners Association and set competitive rules for themselves concerning rookie salary caps, and total cap spending for each team? What happens if this new Football Owners Association, basically a Union of team owners, stop paying salaries to Brady, Manning, Brees, and all others under contract, stop all payments of any kind to retired players by declaring the former NFL is bankrupt and no longer can function because of a lockout, which in reality is a walk-out by the former NFLPA? What happens if this Football Owners Association allows college players to submit their qualifications and allow teams to bid on their services in accordance with the competitive rules the teams have set for themselves? Why is it only the union has the ability/right to decertify, sue everybody and everything associated with the NFL hoping to get more money, and the League must bear all burdens of paying a lot if an agreement is reached, or paying a helluva lot more if some fluffy political hack decides against them? Put the NFL out of business, and start over again as a new entity with new faces that don’t wear makeup or curl their manly locks, and act like real professional human beings in public as well as private.

  18. flyerscup2010 says: Apr 6, 2011 12:03 AM

    Thanks for breaking it down, Mike. I’m sure I speak for many people when I say that I appreciate it.

  19. lostsok says: Apr 6, 2011 12:26 AM

    “Doesn’t De Smith have ties to Obama too? The fix is in!”

    Every judge in this country is nominated by a democrat or republican. A vast majority would still be judges if the “other” party had been in place; many who were nominated by a specific party tend to drift towards the center anyway (see: O’Connor, Sandra Day). Crying fowl over a judge due to bias is a fool’s game.

  20. ditkadontbutkus says: Apr 6, 2011 12:59 AM

    Probably this site’s most articulate and succinct posting on the issue…well done, Mike.

  21. mick730 says: Apr 6, 2011 1:03 AM

    The players want the owners to continue to pay them billions of dollars while the players sue the same owners for billions of dollars x 3?

    If I were the owners, I would tell the players to go f themselves. Then I would get me some new players.

  22. east96st says: Apr 6, 2011 1:03 AM

    “Doesn’t De Smith have ties to Obama too? The fix is in!”

    Ahhh, the teabaggers. Not a brain in the group. The case was assigned to Judge Patrick J. Schiltz. Nominated for the bench by George W. Bush in 2005, Judge Schiltz served as a law clerk for U.S. Supreme Court Justice Antonin Scalia. He turned it over to Judge Nelson. Are you saying “one of your own” is “in on the fix”? Don’t let facts get in the way of you making an ass of yourself.

  23. ruckinfidiculous says: Apr 6, 2011 1:48 AM

    Maybe I’m missing something here, but if the ruling is in favor of the players in an anti-trust suit that prevents the teams from acting in concert, then how can a season be played? Doesn’t participating in a league require the teams to act in concert? Also, what would keep a team from shutting down operations (similar to companies instituting furloughs to reduce operating costs) in this case, if it was performed individually.

  24. ruggerbo says: Apr 6, 2011 2:27 AM

    What happens if there is a government shutdown before a decision is issued? Word is that government workers may get furloughed. Does that extend to the courts?

    The irony may not be lost that a government shutdown blocked the progression of an NFL lockout.

  25. macgee10 says: Apr 6, 2011 4:16 AM

    Just rule in favor of the players and have the owners back off. I just want football and so does every other fan.

  26. brownsclown says: Apr 6, 2011 7:01 AM

    Can you rewrite this using very small words so Dez Byrant can understand it?

  27. chapnastier says: Apr 6, 2011 7:32 AM

    I am a little confused (for a change lol). So there is no CBA yet if the lockout is lifted everything goes back to normal? I thought the whole reason for wanting a new CBA was so that they could continue playing? It would appear to me that absent a new CBA there are no rules or guidelines for free agency, OTA’s, workouts, player pensions, benefits etc etc. I would have thought that if it were that easy for owners to lift salary cap restrictions and stuff like that, they would have preferred not having a CBA and therefor welcome the players with open arms. The larger market teams would rule the day.

    It might just be the typical spin of this site to make it look that easy but how I perceive it, if the owners win they force the players back to the negotiating table.

  28. JimmySmith says: Apr 6, 2011 7:54 AM

    Why is it in Minnesota? Shouldn’t the case be transferred to a city that has a pro football team?

  29. vetdana says: Apr 6, 2011 8:27 AM

    Two questions……1. If the players win, lockout lifted…do the players have any say in the rules to be implemented in their return to work? Does the league hold all of the cards, subject to antitrust scrutiny?

    2. If Judge Nelson orders both sides back to the table….how can a decertified union act and sign a new cba agreement ? Please respond !!!!

  30. RussianBreadMaker says: Apr 6, 2011 8:44 AM

    And what do the fans get out of this? $10 beers and $6 hotdogs?

  31. Caldon says: Apr 6, 2011 9:03 AM

    Just rule in favor of the players and have the owners back off. I just want football and so does every other fan.
    ————-
    Please don’t pretend to speak for all other fans. This is a very short sighted view.

    First, you can bet that all the other sports unions are watching this case very carefully. If the players win this battle it could have some pretty big consequences for all team sports. It basically creates a situation where when the players are unhappy, they can strike and stop work, creating pressure on the league to change whatever they are not happy with.

    On the flip side, the players winning basically blocks the owners ability to do the same since all the sports leagues have rules in place covering issues like the draft, offseason, trades etc that would become illegal anytime the union is unhappy and “disbands”.

    While you may “get your football” this year, this would create an major amount of leverage for the players, not only in this CBA but basically in any negotiations going forward. Other sports unions could also point towards this ruling to further their individual CBA negotiations.

    The scale would tip way too far to the player side. It is truly a heads I win tails you lose situation the players are looking to create and is bad for the long term health of the league and sports in general. There needs to be balance between players and owners. That balance has existed since the first anti-trust lawsuit was won by the players (when the balance was too far in the owners hand) and this case threatens to destroy that balance that was won. The players *need* to lose this case if you love football.

    So I guess if you are someone who wants football short term no matter what the cost then you don’t care but that would mean you are missing out on the bigger picture.

  32. fedupsaintsfan says: Apr 6, 2011 9:03 AM

    Fans get the ROYAL SHAFT!!!!!

  33. supashug says: Apr 6, 2011 9:04 AM

    “Doesn’t De Smith have ties to Obama too? The fix is in!”

    Ahhh, the teabaggers. Not a brain in the group. The case was assigned to Judge Patrick J. Schiltz. Nominated for the bench by George W. Bush in 2005, Judge Schiltz served as a law clerk for U.S. Supreme Court Justice Antonin Scalia. He turned it over to Judge Nelson. Are you saying “one of your own” is “in on the fix”? Don’t let facts get in the way of you making an ass of yourself.

    east96th

    there are other sites that allow you to post about being tea bagged. Go there! This is a Football website. Its bad enough we have to listen to legal garbage about the lockout, leave politics out of it

  34. drop703 says: Apr 6, 2011 9:05 AM

    I hope that they’re ordered to re-negotiate under a deadline. If the judge stops the lockout then the same free agency rules from last year would apply(not a good thing IMO)They need to go back to the table and hammer out an agreement before the draft so that teams can sign free agents and trade picks and players during the draft. It’s not about picking sides anymore…it’s about getting something done.

  35. andrewfbrowne says: Apr 6, 2011 9:37 AM

    Only in a court of law could it even be seriously debated that the union decertifying was anything other than a negotiating ploy to gain leverage.

    According to old CBA they were supposed to decertify only after CBA expired and then wait six months to do so. They violated terms to do so.

    I want football as much as anyone else, but the game has to be able to survive in order for that to happen.

  36. east96st says: Apr 6, 2011 9:53 AM

    supashug – Funny, when a guy was ranting, incorrectly, that it was “fixed” because the Judge was appointed by Obama, you saw no politics or problems there. When the word “teabag” appeared, though, you were up in arms and all of sudden politics had no place. Interesting double standard. Not the least bit surprising, but interesting.

  37. hystoracle says: Apr 6, 2011 10:27 AM

    ruggerbo – That is an interesting question regarding the government shutdown and the courts. I know “essential” personnel keep working during the government shutdown. Are Judges and federal courts considered “essential” personnel?

  38. ilpackerbacker says: Apr 6, 2011 10:56 AM

    Since it’s in Minnesota, they might as well help load up the Mayflower trucks with all of the Vikings’ stuff and get the thing bound for L.A.

    The Super Bowl trophy cabinet can be lifted with one finger, since it’s empty.

  39. alexanderisland says: Apr 6, 2011 10:58 AM

    My take? If the players win and the owners are forced to play under the curernt rules, I believe that they will end up ‘selling’ their franchises to an entity called NFL Corp. who would then have 32 ‘branches’ of the same company, and who would also have the same rules & regulations across the board, just because they are the same company and not subject to any anti-trust shenanigans…

  40. whatsupbb415 says: Apr 6, 2011 11:10 AM

    The Owners will NEVER SELL ANYTHING TO THE NFL… Al Davis? Jerry Jones? HA theres no way eccentric crazed ego driven men like that will sell their lifeblood to become one enity. The players could very well win, ESPN has reported the players have a paper signed by Paul Tagliabue saying the league promised not to contest the union’s decertification meaning the Union does have a leg to stand on. Do people read what they sign?

  41. j0esixpack says: Apr 6, 2011 11:24 AM

    test message – why are the moderators blocking me?

  42. scytherius says: Apr 6, 2011 11:24 AM

    @Caldon

    “Please don’t pretend to speak for all other fans. This is a very short sighted view.”

    ================================
    But a majority of the fans DO support the players as the polls continue to show. It’s just not the majority view of the union busting TeaBags that post here.

  43. canuck54143 says: Apr 6, 2011 11:39 AM

    So what if the Players win, and the owners new non-cba rules lower league min. wage, hold an auction instead of a draft( now Peterson would go nutz) for new college players, take away pensions and instead have team 401k’s without a company match, offer the worst health insurance offered to save money, increase offseason workouts, restrict all free agents 5 years, allow teams to tag more than one player each year, operate with no salery cap or floor, require all new contracts signed by players to market current endorsement deals for the league as part of employement, increase the season to 20 games with two preseason games, start a minor league system and if a player gets assigned there the players wage goes down to league min(of course this is now included in new player contacts).

    Players have it made now, becareful what you wish for! you just might get it and it might not be so great!

  44. samwadd5 says: Apr 6, 2011 12:18 PM

    According to old CBA they were supposed to decertify only after CBA expired and then wait six months to do so. They violated terms to do so.

    This issue became null and void when the owner decided to opt out of the Final year of the CBA in November

  45. easyeddie says: Apr 6, 2011 12:28 PM

    lostsok says:
    Apr 6, 2011 12:26 AM
    “Doesn’t De Smith have ties to Obama too? The fix is in!”
    Every judge in this country is nominated by a democrat or republican. A vast majority would still be judges if the “other” party had been in place; many who were nominated by a specific party tend to drift towards the center anyway (see: O’Connor, Sandra Day). Crying fowl over a judge due to bias is a fool’s game.

    If its a fools game to cry fowl over judges’ biases, why do the politicians fight the other party’s judicial appointments so fiercely? Also, FEDERAL judges are nominated politicians — they’re eleted by the people.

  46. easyeddie says: Apr 6, 2011 12:29 PM

    Oops. Meant to say FEDERAL judges are nominated politicians — most others are elected by the people.

  47. broncsfan says: Apr 6, 2011 1:05 PM

    Nice report. I still don’t quite get, though, what set of rules the league would operate under if an injunction or final ruling forced the teams back to work, especially as it is technically impossible to run the league without collusion. To be in full compliance with antitrust laws, you would have to disband the draft and have players apply to the teams like any other employer, with the highest bidder winning out, and you would arguably no longer be able to engage in revenue sharing, all of which would make even the MLB look like a level playing field by contrast. I assume the league would just throw together some ad hoc rules and the players would selectively attack the ones they don’t like in court (i.e., not attack the draft itself, but only any wage scale the owners throw together)?

  48. jebdamone says: Apr 6, 2011 1:34 PM

    you are truly a homer Caldon that has obviously not followed past litigation and the origin of the CBA. you also contradict yourself and allude to the fact that you don’t know the difference between a lockout and a strike.
    i say that because of you discussion of the ‘tipping of the scales’ and this being an example to the rest of the players unions out there to just strike. like i have said a million times before to the homers out here, this is not a strike, it is a LOCKOUT! you further don’t know what you are talking about when you speak of the former CBA:
    ‘That balance has existed since the first anti-trust lawsuit was won by the players (when the balance was too far in the owners hand) and this case threatens to destroy that balance that was won.’
    again this is a LOCKOUT, so if you believe there was a ‘balance that was won’ by the players from the last CBA then why the hell would you ever be on the side of the owners in a LOCKOUT! lockout=owners…players are okay with the former CBA and are at a moments notice willing to perform under that CBA. you already stated it was fair so what the F is your problem now?
    i honestly have no idea how anyone could be on the side of the owners. this is the process we went through last time when the NFL locked the players out to the T. NFL doesn’t have the right to lock players out since they not a conglomerate but rather 32 separate businesses. They are the ones that opted out of the former CBA, they are the ones that want more.
    if i were the players i would be taking the exact approach they are, just like when a player signs a contract with a team and then wants a lot more two years later the team generally looks at them and says ‘well you shouldn’t have signed the f’in contract then! i agree with them in that regard, just like i believe the players should strong arm the league as much as they can right now. i cannot believe i appear to be the minority on that stance. yes i have union upbringing, but regardless of that there is no good outcome for the players if they lose this battle.
    NFL does not have a leg to stand on in my opinion, all their eggs are in the lockout basket and precedent has already been set in the silver needle case to prevent a lockout from happening.

  49. danbo3330 says: Apr 6, 2011 1:48 PM

    thefiesty1 says:
    Apr 5, 2011 11:29 PM
    Oh no. You didn’t tell us that she was an Obama appointee and probably has liberal views. The owners may be screwed tomorrow. We can only hope for item 9 and get these greedy players back to the table.

    “Greedy Players”?? What math are you using? The Players weren’t asking for an additional BILLION dollars AND a higher percentage of the revenues…that was the OWNERS.

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