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.