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Winning on appeal will be an uphill climb for the NFL

NFL Lockout Football AP

In our 10 things to know, right now, about the lockout ruling, we devoted several paragraphs to the appeals process.  A semi-decent night’s sleep has caused me to conclude that it’s a sufficient important topic to justify its own post.

In any appeal, the court considering the work of a lower court must determine the appropriate “standard of review.”  It’s a concept aimed at ensuring the legal system doesn’t become a series of fresh bites at the apple, with the losing party happily taking a chance at the new audience that the next level provides.

In many cases, the issues are sufficiently important and/or straightforward to allow what the legal system calls “de novo” review, giving the losing party the new audience that it craves.  In other cases, the legal system requires a certain amount of deference to the work of the lower court.

The decision to grant a motion for “preliminary injunction” (i.e., give us part of what we’d get if we eventually win the case now) entails greater deference.

So while the NFL is confident on appeal in part because 13 of the 16 judges (active and senior status) assigned to the U.S. Court of Appeals for the Eighth Circuit were nominated by Republican presidents, the three judges assigned to handle the case won’t be able to replace Judge Nelson’s judgment with their own.  They’ll be permitted to overturn the decision only if they believe Judge Nelson’s decision amounts to an “abuse of discretion.”

As we observed last night, the 89-page written ruling seems was expertly crafted to avoid a finding that Judge Nelson acted unreasonably.  Even if at least two of the three judges assigned to the case are inclined to conclude that the decertification of the union was a sham or that the courts must defer to the NLRB or that the Norris-LaGuardia Act prevents a court from enjoining a lockout, Judge Nelson’s reliance on past cases from the 8th Circuit supporting the idea that a so-called “preliminary injunction” can be obtained even if the likelihood of winning the case is lower than 50 percent, the question of whether the appellate judges believe the decertification of the union is valid doesn’t matter.  All that matters for now is whether the players have shown that they have a “fair chance of prevailing” at trial, a standard used most recently by the 8th Circuit in a case decided in 2008. For the purposes of the appeal, the judges would be required to find that Judge Nelson abused her discretion in concluding that the players have a “fair chance of prevailing” at trial.

It’s similar to the deference that a referee must give to the call on the field during replay review.  Instead of substituting the referee’s judgment for the judgment of the official who made the call, the referee must look for evidence demonstrating that the call was clearly wrong.  While Judge Nelson’s decision doesn’t have quite as much leeway, it’s simply not enough for the appeals court to disagree with her interpretation of the law.  To overturn the decision to lift the lockout while the litigation proceeds, the appeals court must believe that the decision amounts to an abuse of the discretion inherent to trial courts.

So before the owners presume that they’re going to win on appeal because Judge Nelson was “wrong,” that’s not the point.  The question is whether she abused her discretion.  Based on the 89-page written ruling, it won’t be an easy thing for the NFL to prove, even if represented by a legal dream team of David Boies, Johnnie Cochran, Clarence Darrow, and Abraham Lincoln.

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26 Responses to “Winning on appeal will be an uphill climb for the NFL”
  1. deepthreat says: Apr 26, 2011 7:49 AM

    Not being a legal expert…
    How can any judge possibly think the players’ decertification of the union is not a sham ?
    This – and the Needle case – could be really bad for the league if the union never decertifies.
    Every rookie coming into the league could sue for anti-trust if they couldn’t play for any team they want.
    It would be even worse than MLB because MLB has the anti-trust exemption.

    If I ran that league, I would look at what lost that Needle case and reorganize the league into a form that would win it.

    They need to be organized into a single business entity.

  2. chapnastier says: Apr 26, 2011 7:50 AM

    It’s really sad that political bias affects our judicial system from either side of the aisle. I know there is nothing that can be done about it but I don’t recall any judge swearing on a bible to uphold the ideals of their particular political party.

  3. eaglebobby says: Apr 26, 2011 7:53 AM

    I can’t understand how Judge Nelson ruled that the players dissolved their union when quite clearly they haven’t. I also can’t see how the players are “irreparably harmed” when they don’t even start losing paychecks until September.

    But hey, welcome to the NEW NFL–because the players have won this battle, they’ll no doubt win their antitrust case where there will be no draft, no FA limits, and no salary cap. Every player will get to shop their services–but of the college players coming out, only about the top 20 will get the big money–the rest will have to take what they’re offered–or they don’t play. Cause there won’t be any ceiling or any floor either when it comes to pay. So if the judge thought the players were irreparably harmed now, wait till the new rules kick in.

  4. eagleswin says: Apr 26, 2011 7:55 AM

    All the league needs right now is a stay while the appeal process is heard. The more important ruling will be the one by the NLRB. If the NLRB rules in favor of the league these other court cases are all moot. The antitrust goes away and the lockout case goes away.

  5. jlinatl says: Apr 26, 2011 7:55 AM

    Legalities aside, this ruling opens the door to the disupute becoming more contentious.

    I really don’t care about how this thing is resolved but this ruling seems more likely to lead to escalation on both sides than resolution. I’m not so sure this is in the game’s or fans’ best interest.

    I don’t see how “show up and force them to pay workout bonuses” and “lock the weight room and don’t talk to them” can be seen as a move in the right direction.

  6. burntorangehorn says: Apr 26, 2011 7:58 AM

    Clarence Darrow definitely try to help the NFL. The lockout is too good for the trial defense lawyer’s business.

    *zing!*

    (disclaimer: I’m a huge fan of Darrow)

  7. darthvader89 says: Apr 26, 2011 8:06 AM

    Maybe the NFL’s legal representation just isn’t good enough. That Abraham Lincoln guy sounds like the weak link in the lineup.

  8. primetime17 says: Apr 26, 2011 8:16 AM

    That judge is smokin’ hot!
    Yummy!

  9. Trey says: Apr 26, 2011 8:18 AM

    Your probably right the 8th circuit will not make an activist ruling even though Nelson did. Clarence Darrow lost his famous trial, so why would you want him? Probably because you don’t know history.

  10. Trey says: Apr 26, 2011 8:18 AM

    You are probably right the 8th circuit will not make an activist ruling even though Nelson did. Clarence Darrow lost his famous trial, so why would you want him? Probably because you don’t know history.

  11. will12203 says: Apr 26, 2011 8:25 AM

    + 2 now for the Players

  12. jtfris says: Apr 26, 2011 8:29 AM

    Simple math. The owners lose the right to lock out the players at this point because the players have a liklihood of winning in Minn, but win the case in the end based on the arguments of the appellate court.

    This may be the best situation for fans. Football continues and in the end the competitive balance is preserved.

  13. WingT says: Apr 26, 2011 8:44 AM

    “..and with the first pick of the draft , the Carolina Panthers select …a lawyer….kind of sad isn’t it?

  14. salmen76 says: Apr 26, 2011 9:23 AM

    Ha Ha. All you high-powered “X” lawyers said the league was right all along and that the league would and should win. Now what.? Ha Ha. As usual mike, you are wrong again. Players win this big victory in your face. So you can type your bull crap excuses about the law and why yall lost all you want to but bottom line is, You Lose Again! Ha Ha. To hell with all those rich owners. They don’t play football. Geaux Saints!

  15. teddyrex says: Apr 26, 2011 9:50 AM

    chapnastier, deepthreat, you guys REALLY don’t know what you’re talking about.

    there is no political bias here, other than what you’re expressing, which is why 2 Republicans and a Democrat have consistently found in favor of the players.

    1) As to the “decertification is a sham” argument, here’s a short version as to why this is BS. The actual argument being made by the NFL is that the NFLPA’s decertification is pretextual and being done to get out from bargaining with the NFL in good faith. The first problem with this argument is that the NFL waived it (they agreed to not raise this claim in future proceedings) as part of their 1992 CBA, which was extended as part of the 2006 CBA. Which the owners, in their legal briefs, didn’t really have a good response to. So if you want to explain to the judges why honoring contracts is “political” or “partisan”, good luck, but more likely you guys are just listening to too much right wing talk radio. The second problem with this argument is that the owners made very clear that they were going to extract significant concessions from the players or lock them out. You have numerous quotes from Jerry Richardson and others (someone needs to put a muzzle on that fool) saying they were going to crush the union, you have TV contracts that explicitly benefited the owners in the event of a lockout, you have the owners themselves opting out of the 2008 agreement, and there’s evidently a powerpoint presentation floating around explaining how the owners can be making more money, even if they lose a season’s worth of revenues in the event of a lockout. All of that makes it pretty hard for the owners to argue that the players were not negotiating in good faith, or that decertification was a sham to get them out of negotiating in good faith, when it’s pretty clear that the owners were looking for fairly major revisions to the deal already in place (relevant here is the fact that they never opened up their books to verify their claim that the existing CBA was uneconomical for them), and were prepared for a lockout if they didn’t get those concessions.

    Moreover, deepthreat, organizing all 32 teams into one company wouldn’t really matter, if that one company had an effective monopoly on most or all of the professional football industry (which the NFL does). This is something that the most right wing conservatives and most left wing liberals have all agreed on, because it’s pretty clearly established under antitrust law (the economic basis for this is also pretty well agreed upon, which is that you can’t have efficient or “free” markets if there’s one party dominating the market, or multiple parties colluding to dominate the market, and collecting “monopoly rents”).

    There’s politics and there’s law. I know a lot of right wing folks are pissed off because labor is winning this fight, and their instincts are to be on the side of the owners, but the law here is very very clear. As such, it’s pretty perplexing as to why the NFL has pursued this very disastrous strategy. People will get fired, and I’d guess that Roger Goodell and Jeff Pash (NFL general counsel) are the first to go. I also wouldn’t be surprised if some of the more hardline owners are forced out (Jerry Richardson in particular). It cannot be overstated how perilous the owners’ position is right now. They could lose everything if the players want to proceed. All because they got greedy and wanted a few more dollars out of an economic model that was working for them.

  16. themohel says: Apr 26, 2011 9:52 AM

    If I were asking the 8th Circuit for a stay on behalf of the owners, I would argue that Judge Nelson abused her discretion by not delaying the lifting of the lockout for at least a few days to allow the league (and players) the time to determine how to proceed. There is little harm to any party in a five business-day delay to avoid the chaos we see today. I would also use this chaos today and going forward (especially the uncertainty facing the league about what rules will be acceptable going forward) to argue that a lockout should be in place until there is clarity about these anti-trust issues. Lastly, I would argue that she abused her discretion by not waiting for the NLRB’s ruling on the legality of the decertification.

  17. flyerscup2010 says: Apr 26, 2011 10:02 AM

    this is a great breakdown, thanks for shedding some light on how all of this works for us non-legal folk.

  18. rad312 says: Apr 26, 2011 10:09 AM

    At this point the owners have only one option available and that is to continue to appeal the ruling. The reality is all leverage is with the players based on the liberal ruling of a liberal judge.

    Just another reason to be disgusted with politics!

    The writing with Nelson was on the wall when she chose mediation to be handled by one of her cronies as oppose to the Federal mediator.

  19. jasonculhane says: Apr 26, 2011 10:11 AM

    Wow.. Not any of you guys but a couple months back there sure was alot of morons on this forum. I stated that the NFL can’t lock out or deny a person’s right to better themselves under the U.S constitution. And boy there sure were alot of idiots who thought they were on Law and Order or something saying I was stupid and all this crap. Now look at ya. I predicted all of this would happen. Lawsuits would be flying. You can’t deny a persons right to make a living. Thats what this is. Times are different then the 80’s folks. Todays NFL steals more money from the public then it ever had in previous years past. We fund the stadiums, hot dogs stands everything…They just don’t have the right to lockout..No matter how you spin it the reasons for a lockout are greedy, even to a courtroom of law.

    Vincent Jackson and among other free agents had chances to sign with other teams and make more money. Most of these teams DENIED them that chance….To make those players suffer? Jackson could have made 8 million with the Vikings…Instead the Chargers denied Jackson of that right….Bad move. All of those owners were prepared for the lockout and wanted it, which was proven in court.

    I don’t care if I get a 1000 “thumbs downs” hardly anyone here on these forums knows what they were talking about. The NFL isn’t a private business, private businesses employees are not funded by the public. The lockout is lifted and I was right.

  20. hawkdawg88 says: Apr 26, 2011 10:16 AM

    Partially right. The deference to which the judge is entitled does not extend to her pure interpretion of “the law”. It applies to her findings of facts, and application of those facts to the law.

  21. ntr0py says: Apr 26, 2011 10:29 AM

    “Not any of you guys but a couple months back there sure was alot of morons on this forum. I stated that the NFL can’t lock out or deny a person’s right to better themselves under the U.S constitution. And boy there sure were alot of idiots who thought they were on Law and Order or something saying I was stupid and all this crap.”

    Just to be clear, in the sense that you are making a statement with confidence that is obviously false, that is a very stupid comment. I’m sure even the NFLPA’s lawyers would agree on that point. Not only is the constitution silent on these issues, anti-trust law didn’t even exist for most of this country’s history.

  22. bsizemore68 says: Apr 26, 2011 10:46 AM

    The judge made her ruling, now we will see where that ruling goes, don’t be in a hurry for open free agency, it could be your team super star who may want to move south from Chicago or Green Bay. Bill

  23. burntorangehorn says: Apr 26, 2011 11:33 AM

    Trey says:
    Apr 26, 2011 8:18 AM
    Your probably right the 8th circuit will not make an activist ruling even though Nelson did. Clarence Darrow lost his famous trial, so why would you want him? Probably because you don’t know history.
    ================================
    You mean Leopold and Loeb, or Scopes? While convictions occurred in each, you obviously lack intellectual depth if you consider Darrow’s accomplishments in either case to be anything but successful. But feel free to pretend you know history while saying others don’t.

  24. Deb says: Apr 26, 2011 12:09 PM

    Yes, trey, when you don’t get your way, it’s because biased liberal activist judges played politics and ruled against you. But when things go according to plan, it’s because good, conservative judges rigidly applied the letter of the law. Ooooh, you’re soooo astute. :roll:

  25. 3octaveFart says: Apr 26, 2011 2:16 PM

    chapnastier says: Apr 26, 2011 7:50 AM

    “It’s really sad that political bias affects our judicial system from either side of the aisle.”

    So, had things gone “your way”, it would have been because the judge, who was wise and knowledgeable, applied the law in a fair and just manner.

    But since it didn’t, it just HAS to be because of political bias.

    Go away clown, you circus act is getting stale.

  26. kurmudge says: Apr 27, 2011 2:57 PM

    Political bias is pretty easy to locate in this case. All you need to do is remember your remedies class and look at the definition of “irreparable harm”. She is twisting around painfully to say that near term loss 0f dollars constitutes IH, thus re-defining it to mean exactly the opposite of what every bit of case law established. No player is damaged in any way, other than financially, until paychecks were expected again, and even then, that is…. dollars. Read my lips: the players are NOT suffering irreparable harm, despite 89 pages of BS or the fact that a bunch of owners are scummy jerks. That is why the 8th circuit, looking de novo, has to vacate the stay.

    On the contrary, of course- equitable relief is, by definition, only for cases where money damages CAN’T rectify the harm.

    The stay has zilch to do with whether or not the players, under current antitrust law, have a good case in their lawsuit. Every problem here can be fixed by writing a check.

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