[Lawyer David Boies joined ProFootballTalk Live on Tuesday, April 26 to discuss the ruling from Judge Susan Nelson lifting the lockout. A full transcript of the interview appears below. And, yes, I remain acutely aware of the fact that my initials are “MF”.]
MF: It’s not very often we’re joined by one of the most well-known lawyers in America but our next guest fits that profile. He has been involved in some of the biggest litigation the country has seen over the past decade, not beginning with, but most notably in late 2000, the Bush v. Gore Presidential election; the recount in Florida. He represented the Gore camp in that landmark decision. He’s been involved in the Microsoft antitrust suit as special counsel for the Department of Justice. A couple of years ago he secured a $4.1 billion judgment for American Express in antitrust litigation against Visa and Mastercard. A lot of antitrust experience for our next guest, and that makes him probably the perfect lawyer to be handling, and involved in the antitrust case filed by the players against the NFL. He is the lead counsel for the NFL in the pending antitrust lawsuit, and we are joined by David Boies. David, thanks for taking some time to be with us I know you’re very busy today.
DB: Absolutely. Pleasure to be here.
MF: Let me just start off, you know yesterday about 6:00 p.m. eastern time, an 89-page ruling drops onto your desk. What did you do when you first got your arms around that document?
DB: Well, we first tried to scramble and read it quickly and react. Obviously, this was something that we had prepared for, that we had contemplated, and so we had done a lot of preparatory work. But whenever you get something like that, you’re scrambling to find out what the reasoning is. In addition, there are a number of sort of open items that we need clarity on. As you may know, the Players’ Association put in a proposed order that went considerably beyond what the judge ruled. We’ll probably put in a proposed order. The judge will have to choose between those or maybe draft her own order. We’ve also asked for a stay, so it’s a little uncertain what’s going to happen exactly, and exactly what the time schedule is. So we’re trying to sort those things out as we go as well.
MF: You mentioned the competing orders that have been submitted. Were those orders submitted after the ruling came down?
DB: Yes. After they submitted theirs, I don’t know, maybe 7:00, 8:00 last night, maybe a little earlier. We’d been comparing their order and comparing it with what the judge said in her 89-page opinion. And we will probably be giving the court our own proposed order as to how to implement what she decided. At the same time, we’re obviously preparing our appeal.
MF: Did it surprise you that she didn’t address in any way what it means to end that 89-page opinion with the sentence ‘The lockout is enjoined’ and no further guidance?
DB: No. It would not be unusual for a court to reach a bottom-line conclusion and then leave up to the parties to draft competing, specific orders. Because at the time that we argued, we were arguing in general terms, and while we talked a lot about examples that were specific. Neither side really laid out what the parameters of an actual order might be. So it didn’t surprise me that she gave us the conclusion that she was going to enjoin the lockout, but left to the submission of competing orders exactly what that means.
MF: Are you concerned, David, that there’s a chance that what she means is, the lockout’s over. We’re where we would’ve been March 12, 2011, 12:01 a.m. Eastern time, business as usual, new league year begins, free agency begins, trades can happen, and anything other than that is not in compliance with her order?
DB: She could mean that. I think it’s, and I don’t want to try to speak for what she means until we get some guidance from her, but I think she was sensitive at the time of the argument, that you’re going to need to have some baseline of rules in order for the league to operate. In other words, you could end the lockout, but still not have the league operating, unless you had some agreement as to what they rules of the road were –- the antitrust rules as to what the league could impose and to what rules the league could not. That’s another one of the kinds of uncertainties that is out there and hopefully will be resolved. But there are lots of questions. The opinion really raises more questions than it answers, and I think what you will see is those questions being answered in part perhaps by the district court, and in part perhaps by the appellate court over the next days and weeks.
MF: And David, as to the rules that the NFL may ultimately have to impose, assuming that the lockout is lifted and that the ruling is upheld on appeal, isn’t it fair to say that any rules the NFL imposes are going to be subject to some challenge by the players under the view that, as 32 separate businesses, anything that those 32 teams do collectively is an antitrust violation?
DB: If you talk about challenge in the sense that, is there going to be some player out there that raised a complaint, the answer is very likely. But in terms of how that is resolved, the courts have been pretty clear that leagues have to act collectively in order for there to be a league. The reason that the NFL has been so successful for everybody — for fans, for players, for owners — is because it’s been a very effective league in which people have worked together with common rules to try to assure a competitive feel, to have parity on Sundays and the other days that they play football, and to have something that the public really likes and is exciting. And to do that, you need to have rules in place. And I think that the courts have recognized, in other leagues and in comparable situations here, that the league needs to have rules that are different than if you had 32 totally independent businesses. If you have 32 totally independent businesses, you wouldn’t have schedules, you wouldn’t have competitive products for the fans to look at. You wouldn’t have the thing that makes the NFL great.
MF: But the problem then is, if there is someone, whether it’s the 10 plaintiffs currently involved, or Andrew Luck who’s going to be entering the NFL, possibly via the draft next year, if someone wants to challenge that, the only way we get an answer is to challenge the litigation through to the end result and find out whether or not those rules will pass muster, and not be viewed as antitrust violations. So these are things that could be pending in uncertainty for months, if not years.
DB: Yes, that is one of the unfortunate things that happens when turn this over to lawyers and judges. Obviously I’m a lawyer, I like to have cases. But this is really a case that does not belong in courts. This is a case that ought to be decided in the collective bargaining arena. It ought to be decided on a business basis, on a labor-management basis. You ought not to have lawyers and judges trying to tell the league and the players how to operate. I think in the long run that’s bad for everybody. It’s not just bad for the owners. It’s bad for, certainly the rank-and-file, the players.
MF: And taking this then to the next step, when it goes to the 8th Circuit Court of Appeal, what’s your understanding of what the standard of review will be of Judge Nelson’s decision?
DB: Well. it will be what lawyers like to call ‘de novo’ review. And that means that it is reviewed, because these are rulings as a matter of law, they are ruled and decided by the appellate court without giving any so-called deference to the trial court. When the district court rules that the Norris–La Guardia Act, which is for 40 years been thought to bar injunctions and labor disputes, does not apply here. That is a question of law that the 8th Circuit will review and make a decision on without giving any particular deference to the district court. When a district court holds a trial and finds facts, then those facts are exempted by the appellate court, unless the appellate court finds that they were clearly erroneous. Deference is given to a trial court’s findings of fact. But, as you know, even though we asked the judge to hold an evidentiary hearing, the court declined to do that. And so what you have here is you have rulings as a matter of law. And those are rulings that are like, to use an analogy from the different sports, like a jump ball. It’s going to the Court of Appeals for the Court of Appeals to decide without any deference to the district court. Now the district court is entitled to deference on factual matter, but she didn’t hold an evidentiary hearing and the key issues that are going up, are issues of law.
MF: And is it fair to say that the players are going to have a different position when it’s time to file the brief and that they’re going to argue abuse of discretion is the standard that applies to the entire ruling?
DB: I would be surprised at that Mike, actually. I’d be surprised if they could come up with an argument that the interpretation of the Norris–La Guardia Act is abuse of discretion standard. I think they could argue that — they probably will argue that — with respect to the primary jurisdiction argument. But with respect to the key legal issue, which is whether the court ought to be giving injunctions in labor disputes, I think that’s pretty clearly an issue of law. And I don’t think that the players’ lawyers are going to try to argue that it’s not. That could cost them some credibility with the 8th Circuit if they did.
MF: The more immediate question is whether or not this ruling will be stayed pending appeal. When do you expect a ruling from Judge Nelson on whether or not the lifting of the lockout will be delayed?
DB: She has asked the players to give her their view on that I think tomorrow morning. And I think she will decide that quite promptly. If she grants a stay, then obviously that’s decided. If she denies the stay, we’ve already told the 8th Circuit that we will be having papers presented to that court. Now if the decision by the district court were delayed by an extensive period of time, we might go directly to the 8th Circuit. But I think she’s going to act promptly.
MF: Assuming that a few days go by, where does everything stand? Is it the league’s position that this kind of tentative ‘the players can come in but not work out, and no trades, no free agency signings, nothing is going to happen until we get a ruling.’ Is that how this is going to continue until we get a ruling on the stay?
DB: I think the status quo is going to be maintained at least until the court comes up with a formal order. Remember, we don’t even know the parameters of the order yet because they put in their proposal, we’re putting in our proposal. So certainly until that is resolved, nothing is going to change. And I think that everybody recognizes that, even the lawyers representing the players recognize, that it takes a few days to try to get things reopened in an orderly way, and that it makes sense to see whether the court of appeals or the district court is going to stay the order.
MF: David, last question. Of course you know when a lawyer says that, there’s always a chance there’ll be more than one more question.
DB: Yes, that’s right.
MF: You’ve done that too I’m sure, plenty of times. There’s been some confusion about whether or not, in this current climate with where we stand — motion for stay pending, lockout enjoined — whether or not coaches can be in contact with the players or other executives in touch with the players. Do you know what the league’s position is right now? Can coaches call players and talk to them on the phone?
DB: I think that the position, as I understand it, is that the status quo is going to be maintained, that people are going to try to comply with the order. I don’t think that it helps anybody to have people sort of taking precipitous action before everybody has thought it through. And remember, we don’t even have a final order yet from the district court, let alone a decision on the stay. So my expectation is that certainly over the next few days while we wait for the court to issue a formal order and we see what happens on the stay, that I don’t think anything is going to change from where it was last week.
MF: Well David, thanks again for taking the time today. We appreciate you helping us understand where things are. I know it’s a very confusing time.
DB: It is.
MF: And best wishes to you in the future, and thanks for coming on the show.
DB: Well thank you I enjoyed it. Take care.