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On-again, off-again lockout could be off again soon

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One week ago, the NFL was thrust into chaos and confusion after Judge Susan Nelson entered an order lifting the lockout without elaboration as to what it immediately meant.  Two days later, Judge Nelson made clear her intention that the lockout is over, and all that that implies.  The next day, the league acknowledged that the lockout was, in many respects, over.

And the next day the lockout was back on.

The lockout could soon be off again.  On Friday, the U.S. Court of Appeals for the Eighth Circuit ruled that the lifting of the lockout would be temporarily delayed while the appeals court considers whether to issue a more permanent stay while the appeal is considered.  If the appeals court grants the motion, the lockout will stay in place unless and until the NFL loses the formal appeal of Judge Nelson’s ruling.  If the appeals court denies the motion, the lockout will end unless and until the appeals court overturns Judge Nelson’s decision.

As we explained the other night, after the temporary stay was granted, the ideologies and backgrounds of the judges assigned to the case will have a potentially significant influence on every decision made by the Eighth Circuit.  Judge Duane Benton and Judge Steven M. Colloton, both of whom voted to grant the temporary stay, were nominated by President George W. Bush.  Judge Kermit Bye, who vehemently opposed the temporary stay, was nominated by President Clinton.

Ultimately, the status of the lockout will be determined by the luck of the draw.  And with 13 of the 16 Eighth Circuit judges nominated by Republican adminstrations, the NFL has a decent chance of landing a panel with pro-business leanings.  Even if two of the three judges have a pro-labor predisposition, their hands will be tied to a certain extent by the precedents generated by a court that recently has been dominated by judges sufficiently conservative in their thinking to attract the attention of Republican presidents.

That said, the NFL surely was banking last year on a 5-4 ruling from the U.S. Supreme Court in the American Needle case, which would have resulted in a finding that the league can’t violate the antitrust laws because it is one business, not 32 separate ones.  And the NFL lost that case in a 9-0 landslide.

So even if the judges assigned to the case will be predisposed to entering pro-business rulings, the league still needs to convince them that the league’s position has merit.  Otherwise, Judge Nelson’s decision will be upheld, and the lockout will be over.

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11 Responses to “On-again, off-again lockout could be off again soon”
  1. chapnastier says: May 2, 2011 9:00 AM

    “As we explained the other night, after the temporary stay was granted, the ideologies and backgrounds of the judges assigned to the case will have a potentially significant influence on every decision made by the Eighth Circuit. Judge Duane Benton and Judge Steven M. Colloton, both of whom voted to grant the temporary stay, were nominated by President George W. Bush. Judge Kermit Bye, who vehemently opposed the temporary stay, was nominated by President Clinton.”

    I love how you only point this out when it benefits your ideology. You are taking a blatant political cheap shot here using the emotions of the fans to steer them in one way or another politically. How about just sticking to football and the legal proceedings applying to past cases applicable to this one. Or do an in depth review on how each judge rules in favor of constitutionality of laws like their job requires. You know, true, research backed journalism?

    Sometimes, just because you have the forum, it doesn’t mean you need to abuse it.

  2. RussianBreadMaker says: May 2, 2011 9:09 AM

    Pro-business = Republican way. we all know that the liberals dont want to work.

  3. pilprin says: May 2, 2011 9:11 AM

    I believe the UDFA’s out there have the strongest case in saying that the lockout will have irreparable harm. Their only chance at a roster spot is via OTA’s and a training camp.

    Now more than ever I think the lockout needs to be lifted so that these young men can have a chance.

    I was squarely on the owners side a few weeks ago, however, I now have switched to being squarely on the side of the players.

  4. jrhsd says: May 2, 2011 9:12 AM

    The NFL is bound to continue it’s pattern of losing, judges base their decisions on evidence unless they are voting for President.

    Then even Souter played along.

  5. bfridley says: May 2, 2011 9:34 AM

    This whole argument is garbage, because it’s a complete sham that the union ever decertified.

  6. prior0knowledge says: May 2, 2011 10:42 AM

    Although there might a pro-business/pro-labor leaning based on who appointed the judge, I don’t think it is as strong as you suggest. Although I am a conservative, I don’t think liberal = anti-business (at least not for most liberals). Also, I think the “decertification is sham” decision will be based more on law-logic and precident than on political philosophical leaning. Unions are allowed to decertify as part of their strategy, so whether this particular decertification is considered a sham is almost unrelated to liberal/conservation philosophy.

    At least I hope so… I hope that the judges can put aside their political prejudices and make a decision based on logic.

  7. tednancy says: May 2, 2011 11:24 AM

    pilprin says: May 2, 2011 9:11 AM

    I believe the UDFA’s out there have the strongest case in saying that the lockout will have irreparable harm. Their only chance at a roster spot is via OTA’s and a training camp.

    Now more than ever I think the lockout needs to be lifted so that these young men can have a chance.

    I was squarely on the owners side a few weeks ago, however, I now have switched to being squarely on the side of the players.
    ==============================

    I understand the sentiment: we want our teams to move forward after the draft. We want things to go back to normal. We want football. Now.

    That said, the surest way to make sure the game we love is protected going forward is to support the owners. Without a lockout, the NFLPA will never agree to a new CBA. Without a lockout, there will be no rules whatsoever preventing teams like Dallas from buying up all the talent in the league, and teams like Green Bay and Pittsburgh will become hopelessly irrelevant.

    It’s true that we all want football to resume as soon as possible; but we shouldn’t let that desperation cloud our judgement about what’s good for the game.

    Now, more than ever, we need to stand-up against the greed of the union.

  8. jrhsd says: May 2, 2011 11:29 AM

    I assume all the right wing voting is what the NFL is paying for with all the pay cuts for their workers.

    The reason I said what I said is that it is obvious the NFL’s practices of a draft and free agency are not fair business practices in the real world. We all know those are the things that made the NFL great, start to lose that and there is a huge leverage swing. I would argue that it IS better for the players to have unlimited free agency. And I think a lot of players would have better careers playing where they want to play. But the players want the draft, they didn’t open this can of worms it has been planned by the owners for a long time.

    The “sham” argument is still a weak argument. It seems absurd that all the white males here are vehemently anti-union yet begging for this to be a collectively bargained situation.

  9. tednancy says: May 2, 2011 12:06 PM

    jrhsd: those of us who support the owners aren’t anti-union, but we are pro-NFL.

    I would also argue that the NFL really should be allowed to function as a single entity and not as 32 independent business. Anyone who really understands the way the NFL works knows that the single most valuable element of any NFL franchise is the association such franchise has with the other 31 franchises in the League.

    Therefore, anti-trust laws should not be applied to the NFL as they might to other businesses. It’s not about ideology; it’s about the unique nature of the NFL. It’s something that fans understand, but it may escape the understanding of a jurist like Susan Nelson.

    The Cowboys are valuable, but would not be if they no longer competed with the likes of the Eagles, Redskins, Giants, etc.

    Those who argue that the players are the most important element of the NFL need to wise up: the WFL in the 1970s and the USFL in the 1980s and the XFL in the 2000s all had big-time pro talent, and all failed miserably.

    The USFL teams had NFL-caliber players, but it failed anyway. Why? Because it never had the gravitas that NFL franchises have.

    Finally, those of you who argue that owning an NFL franchise is easy money are proving the owners’ point: NFL franchises are valuable because they are compete in the NFL. How successful would, say, the Carolina Panthers be if they competed in the UFL?

    The NFL is special. It has marketed itself extremely well, and most fans understand that membership in the NFL is what makes individual teams viable. It’s not really about the players; if it were, the USFL would have thrived.

    It’s all about the shield. That’s what the owners will argue in court, and that is why they’ll win.

  10. rockymtnphinfan says: May 2, 2011 12:12 PM

    Republicans suck and we have all known this for quite some time.

  11. stevecmh says: May 2, 2011 10:01 PM

    I think professional football is so successful because of the players and the individual teams which compete in an organized league called the NFL. You cannot take the teams, or the players, out of the equation and have anything approaching the same level of succcess.

    US labor law allows unions to decertify and sue if they feel their employers are violating labor and anti-trust laws. Since the owners chose to void the CBA, the players chose this strategy. The players gained even more confidence when Judge Doty found that the NFL had violated the terms of the last CBA when they structured TV contracts that paid them even if no games were played.

    Now, the issue seems to be whether the NFL is one business entity or 32 separate businesses. I don’t see how anyone can claim that the NFL is one business. To me, a single business has one bottom line. When I look at the NFL, I see 32 businesses being run in different ways by different owners who paid different prices for their teams and facilities they own.

    If the NFL were one business, it would not make any sense for people to constantly criticize Jerry Jones as evil personified. After all, isn’t he just 1/32 of the NFL if there is just one business entity?

    Also, if the NFL were just one entity, they would share profits and losses. I don’t see any of that going on here. The league these teams joined has some joint marketing agreements and shares some revenues, but there are clearly 32 different businesses operating with widely varying degrees of success and clearly different business philosophies.

    If the NFL’s ultimate legal success is dependent on winning this ‘one business’ argument, this situation is even more pathetic than I thought. The NFL appears doomed to lose this battle. I hope the Appeals Court recognizes that quickly and ends the lockout this week.

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