We’ve obtained a copy of the 15-page document filed last night by the NFL in response to Judge Nelson’s order lifting the lockout, in which the league seeks a stay of the order pending appeal.
The league argues that it will suffer irreparable harm, if it’s forced to proceed with business as usual while the appeal proceeds. “[I]t will not be possible to unscramble the eggs,” the NFL writes regarding the prospect of a stop-and-start to the league year, with the 2011 league year beginning absent a stay and ending after a successful appeal of Judge Nelson’s ruling.
The fact that Judge Nelson, who is considering the request for a stay, already has found that the players are suffering irreparable harm during the lockout and that the NFL will suffer significantly less harm if the lockout is lifted puts the league at an obvious disadvantage. The possibility that the league will have to begin the 2011 league year and then end it arguably creates discomfort and/or inconvenience, but it’s hard to regard the outcome as “irreparable harm.”
At worst, the league year will start, players will sign contracts, players will be traded, players will be cut, players will work out at team facilities, and the league will conduct business as usual unless and until the lockout is reinstated. At that point, the doors will once again close. The possibility that the lockout will continue makes it hard to conclude that the harm to the league will be “irreparable” if the league is required to transact football business unless and until an appeals court scuttles Judge Nelson’s ruling.
Though requiring the league to proceed with the 2011 league year will force the league to determine on the fly the rules that will apply to free agents — rules that undoubtedly will be challenged as antitrust violations — the league has had a full opportunity to plan for this eventuality, and to determine the rules that will be used if the lockout ends. Despite the sense of chaos that emerged last night (a cynic may say that the chaos was feigned by the league in order to justify the decision to treat the 89-page ruling ending the lockout as somehow incomplete), the league has planned its moves carefully. And the league knows which rules will be applied if/when the lockout is involuntarily concluded.
In the end, Judge Nelson will be guided by the following factors, as articulated in the league’s brief, in deciding whether the stay should be granted: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Given Judge Nelson’s assessment of similar factors in deciding to implement the injunction that lifts the lockout, it’s hard to envision Judge Nelson deciding that it’s the league and not the players who now must be protected against irreparable harm.
Thus, while we believe that it would be more orderly and sensible to avoid ending the lockout and then starting it again, Judge Nelson easily could conclude that it makes more sense to err on the side of protecting the players against ongoing irreparable harm than to protect the league against harm that is more annoying than irreparable.
In the end, it could be the appeals court that decides whether to issue the stay. Ultimately, it’ll be the appeals court that decides whether the lockout will continue. Even if the stay isn’t granted, the doors could end up being closed once again — and they could possibly stay closed for part or all of the regular season.