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A theory on the delay in the ruling on the motion for a stay

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Earlier this week, the Clerk of the U.S. Court of Appeals for the Eighth Circuit suggested that the court may not rule at all on the NFL’s pending motion to stay the lifting of the lockout while the appeal of Judge Nelson’s decision to end the lockout proceeds.  The statement from Michael Gans to USA Today raised eyebrows, given that the paperwork has been submitted by the parties and the issue otherwise is teed up for consideration.

A theory has emerged regarding the possibility that the Eighth Circuit simply won’t rule on the motion for a stay.

In 2009, Judge Steven M. Colloton agreed with the players in an appeal regarding Mike Vick’s bonus money from the Falcons, and regarding the league’s effort to bump Judge David Doty from his position as the overseer of the Collective Bargaining Agreement.  Colloton, who was nominated for his position by President George W. Bush and thus arguably predisposed to enter pro-business rulings, is viewed in some league circles as a possible swing vote in the Tom Brady antitrust lawsuit.

Last week, Judge Colloton and Judge Duane Benton agreed to give the NFL a temporary stay, with Judge Kermit Bye strongly disagreeing.  As to the motion for a full stay, some believe that Benton will side with the league, Bye will side with the players, and Colloton could go either way.  And so the thinking is that Colloton may be reluctant to tip his hand as to the appeal itself by picking one side or the other when it comes to the motion for a stay.

Of course, that thinking could amount to over-thinking.  But we’re thinking that the idle time during the stutter-step lockout has prompted so much thinking.  Regardless of the reason for the delay, the Eighth Circuit’s failure to act on the motion for a stay is the latest unexpected development in a growing string of them.

Which of course means that a ruling on the motion for a stay probably will be announced later today.

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43 Responses to “A theory on the delay in the ruling on the motion for a stay”
  1. touchdownroddywhite says: May 6, 2011 10:14 AM

    Wow. Is it me, or is this getting really awkward?

  2. chatham10 says: May 6, 2011 10:16 AM

    You guys slay me, Judge Bye “strongly” agree with the players while the other two judges support the owners, are you sure they do not “strongly” agree with the owners”. You liberal lawyers are a hoot.

  3. chapnastier says: May 6, 2011 10:18 AM

    “Colloton, who was nominated for his position by President George W. Bush and thus arguably predisposed to enter pro-business rulings”

    And promoting business that employ people and keep the country moving is a bad thing? I guess ruling in favor of employees for unsustainable business models is just wonderful. How about we ask American auto makers how that worked out for them.

    Definition of insanity: Doing the same thing over and over and expecting a different result.

  4. bengalsown says: May 6, 2011 10:18 AM

    Wow, that put me right to sleep

  5. billybats says: May 6, 2011 10:22 AM

    Quite a stretch, Judge MF. The players lobby must be getting really nervous. To quote Rod Stewart:

    “Still I looked to find a reason to believe…”

  6. willycents says: May 6, 2011 10:23 AM

    Let me propose a theory on this appeal story.
    I propose that, since oral arguments will be heard the first week in June, the court will wait until after oral arguments to issue a ruling. To issue a ruling now, one way or the other, puts the court at risk of overturning itself in less than a month; not a risk I think they would take. By ruling now, they would indicate that the oral arguments are irrelevant to the case and that they erred in scheduling them . Logic seems to dictate that the court would hear all arguments in the case before issuing a ruling.
    As I understand it, there is a temporary stay in effect, and the ruling would make the stay permanent, or eliminate it.
    Not a lawyer, maybe someone (MIKE??) could explain this a little better?

  7. MichaelEdits says: May 6, 2011 10:25 AM

    You mean somebody’s actually thinking in all this?

  8. savocabol1 says: May 6, 2011 10:26 AM

    “and Colloton could go either way.”

    No that there is anything wrong with that….

  9. lacharger2112 says: May 6, 2011 10:26 AM

    I can’t watch Baseball. I can’t do it.

    This site is turning into CNBC now.

  10. bubbabart says: May 6, 2011 10:31 AM

    If they are conservative…in this case they side with the players. This will strengthen the anti Union people who see the “All Powerful Unions”….wreaking havoc on America. Not very difficult to figure this out!

  11. zaggs says: May 6, 2011 10:31 AM

    Bye “strongly” agreed with the players because Bye “strongly” wants a higher appointment. The idea that temporary stays are “only” granted in true emergencies is ludicrous.

  12. bearskoolaid1688 says: May 6, 2011 10:37 AM

    Screw all this legal crap. The owners should suggest to the players that if they would recertify the union and come back to the negotiating table the owners will lift the lockout. Then if the players say no to this suggestion then shame on the players.

  13. ftblfan9 says: May 6, 2011 10:42 AM

    No ruling, while temporarily good for the league in that the lockout would continue, is probably a bad sign for the owners in that it may signal that the court believes that the owners do not have a strong probabilty of success in the appeal.

  14. delebar says: May 6, 2011 10:47 AM

    As someone who has practiced a lot of appellate law my take is this: the court will never rule on the motion to lift the stay. Appellate court clerks talk to the judges they serve about pending cases all day long. This is not an arms length relationship by any means. I would be very surprised if the clerk was simply expressing his personal opinion of what might happen (or not happen) with respect to the motion to lift the stay. I think it is far more likely that the judges hearing this matter told the clerk that they weren’t inclined to ever rule on the players’ motion, and the clerk was, somewhat subtly, passing this fact on to the public.

    I’d also offer this observation. Much of the general public is, in my opinion, under a very false impression about appellate judges. Many believe the cliche that “conservative judges just apply the law, but liberal ‘activist’ judges make up the law to achieve their desired ends.” This is not reality, and this heavily followed appeal is demonstarting how things really work. Generalizing very broadly and much too simply, conservative judges are biased in favor buisnesses and the government – with a further bias towards size: bigger beats smaller. Liberal judges are biased in favor of individuals and individual rights. Both are equally “activist” in tilting outcomes toward their biases. With respect to the stay motion, you could make a pretty good argument that failing to rule on that motion – if that is indeed what the court does – is an activist, conservative judgment. Regardless, I have always found it somewhat amusing that so many people support conservative judges who would be biased against them should they ever be a party in an appeal.

  15. xinellum says: May 6, 2011 11:05 AM

    I guess ruling in favor of employees for unsustainable business models is just wonderful. How about we ask American auto makers how that worked out for them…. Chapnastier… I have to say, that is one of the more intelligent things I have seen written on this page or any other page. I think it sums this thing up to a tee and is the perfect analogy. Another successful business driven into the ground by the greed and laziness of it’s employees. When the inmates start running the prison…

  16. Slackmo says: May 6, 2011 11:06 AM

    This site has devolved to amateurattorneytalk.com

  17. therealmccoy25 says: May 6, 2011 11:14 AM

    @ delebar

    HUH????????????????????????????????

    I just want my football back! Vick will lead the birds to the BOWL this season…FACT!

  18. Rhode Island Patriots Fan says: May 6, 2011 11:17 AM

    Despite all the recent online tweets to the contrary, I’ve held the view that the advantage is still with the players on the motion to stay pending appeal. Yes, even with an expedited appeal. Let’s hope I’m wrong, as I think it’s in the game’s best interest for the owners to prevail here. In any event, I think whoever wins this motion for a “permanent” stay will have a decided advantage to win the appeal itself.

  19. indianajet says: May 6, 2011 11:33 AM

    As an attorney – here’s my take on why the Court has not ruled on the Motion for Temporary stay….the Mediation that is set to begin again later this month.

    Mediation always works best when both sides are unsure about the outcome of the case and have trepidations that they may “lose”. If one side has more leverage then the other, they are less likely to be reasonable in their negotiations, which makes a mediated resolution less likely.

    If the Court formally grants a temporary stay pending appeal, the message sent is that the owners have a very good chance of winning on appeal. This would make the owners very difficult to negotiate with during the pending mediation sessions and lessens the chance of a mediated resolution.

    Likewise, if the Court formally denies the temporary stay pending appeal, the message sent is that the players have a very good chance of winning on appeal…making the players difficult to negotiate with and reducing the chance of a mediated resolution.

    With an “administrative” stay in place (that does not really take into account a full review and analysis of the issues) the leverage between the parties is shifted closer to the middle.

    With the administrative stay:

    1) The players are knocked down a notch from the District Court’s ruling on the injunction.

    2) The owners have a little more life in them….but nothing really set in stone because the “administrative” can be lifted at any time.

    With both sides’ position somewhat in question, the hope is that reasonable minds will prevail in the upcoming mediation and both sides will give a little leading to a settlement. (Assuming of course either side is capable of “reason” – which personally I have my doubts).

    Hey…I may be a lawyer….but this isn’t exactly rocket science.

  20. airraid77 says: May 6, 2011 11:34 AM

    M-flo and co. are not arguing this on sound logic but liberal bleeding heart logic…..The little guy needs to win…….which is how a country gets to communism…..and then nobody wins. including the bleeding heart liberal reporters.

  21. smacklayer says: May 6, 2011 11:36 AM

    What about the possibility that Judge Bye will change HIS mind and side with the owners? Why do one of the judges that side with owners necessarily will change their mind? Nothing like good old fashioned liberal media reporting.

  22. hendawg21 says: May 6, 2011 11:39 AM

    It’s the year 2020 and i’m sitting with the grandchildren…kids let me tell ya about this game we had called football, oh what a great game it was but then greed got in the way both sides wanted more neither side trusted the other long story short the players were locked out the season was lost and the fans failed to come back, TV revenue was shot due to the bad economy…so this is why today Hockey and Soccer are your two top sports…tomorrow i’ll tell ya about this other sport NBA they in the same year went through the same deal…

  23. dolphincritic says: May 6, 2011 11:40 AM

    I work in the federal court system and have read at least comments (willycents & delabar) that display gravitas.

    I am amused by the comments that characterize this as a labor/management issue, as well. Let’s be honest, this is a group of entertainers fighting a group of impresarios for an equal share of the proceeds. Mike was on the Joe Rose show criticizing the commissioner for not being neutral. Folks, the guy is paid by the owners not the players. If the players want a neutral commissioner then they need to pay half of the freight.

    The NFL is made up of business persons who found something more entertaining than Broadway or Hollywood. The performers need to come up with some cash if they want a piece of the profits. If you are a talented performer, you don’t need a “union” to get you your fair share. The “union” is there for the lesser talented supporting cast members. I guarantee you that no player trying to live that special lifestyle of the professional superstar is going to play for some socialist version of union scale football wages.

    The judges know that their ruling will bring criticism regardless of the outcome. They will rule at the appropriate time with a ruling rooted in law. They will be fair to everyone by playing favorite to no one. Say goodbye to summer football – watch some baseball. The Marlins are doing surprisingly well, for now.

  24. p4ever says: May 6, 2011 11:47 AM

    Why did they trip all over themselves to reinstate the lockout? Whichever side you’re rooting for, this shows Justice is no longer about the law…

  25. hendawg21 says: May 6, 2011 11:50 AM

    Well when you have one side (Owners) who feel they should reep the most benefits because they do own and fork out the most…

    And then you have the other side (Players) who’ve been catered to and given any and possibly everything since it was realized they had athletic talent…they don’t understand “NO” it’s always been yes or you can do what you want and don’t understand no you can’t it’s illegal.

    It’s a good soap opera The Rich and the Rich and Spoiled…

  26. p4ever says: May 6, 2011 11:51 AM

    Despite the coach “touchdown catch challenge”, the referee decided to allow the kicker to attempt the PAT and he will review the catch at the end of the game…

  27. ravenution says: May 6, 2011 12:03 PM

    You know this country will always be vulnerable to outside attack? Becauae idiotsvsuch as yourselves are more interested in defending your silly party affiliation, your political affiliation, and your racial/cultural affiliation over your country. You want to see your president fail because of his skin color. Ypu waste time taking the players or owners side while failing to see that neither side cares about you, joe six pack. Pa thetic.

  28. laeaglefan says: May 6, 2011 12:17 PM

    “Why did they trip all over themselves to reinstate the lockout?”

    The court didn’t reinstate the lockout. The owners did. They could have just as easily continued to follow Judge Nelson’s directive, but chose not to.

  29. bronco1st says: May 6, 2011 12:21 PM

    @bearskoolaid1688
    Two things; first the owners had almost 4 years to begin negotiations with the union before they decertified. They chose not to and waited (planned) until shortly before the CBA was set to expire before doing so. By making an offer that overwhelmingly favored the owners, they knew or at least suspected that would push the union to reject it and decertify. The timing was of utmost importance as I will explain.

    Second, the union was under a legal time limit as to when they would be allowed to decertify. That time limit was at midnight, March 11, 2011. If they did not decertify by that time, they would lose the right to do so by law. The proposal by the was presented just a few hours before. Not enough time for the union to even consider it let alone propose an alternative. With the deadline for the union to decertify or not set to expire within hours, the union had no other choice, either give up their only leverage card or decertify.

    The owners knew this would happen. Even during the short period of actual mediated negotiations, the owners could have presented that proposal, with plenty of time to allow for debate, consideration and counter proposals. But the league did not do that, also planned.

    At this point, the union cannot re-form to negotiate. To do so would undermine their right to legally decertify if talks broke down.

    Unlike the union’s legal restrictions on decertifying and re-forming, the owner’s lockout leverage card does not come under legal guidelines. The owners can impose or lift a lockout as many times as they choose with no legal restrictions, (as witnessed). The owners were perfectly aware of this as well.

    They (owners) believed by in effect, forcing the union to decertify (so the players could fight the lockout in court and which the union assumed would be the owners action), was their (owners) opportunity to crush the union forever. The owners believed and gambled they would win in court. They had nothing to lose. If they win, they destroy the union. If they lose, they are back to their original position with respect to the ability to negotiate in new CBA talks.

    So at this point in the proceedings, it’s all or nothing for the union. Re-formation to again become a union, is not an option.

    Now the only options are to continue with the suits in hopes that doing so will bring the owners back to the table to negotiate in earnest.

    Once the talks ( through a player representative and the league) produce a new proposal that is acceptable by both parties involved, then the players can decide/vote to re-form the union and then vote as whether to accept the new proposal. Of course that proposal would have to be guaranteed not to be pulled back once the union re-forms to vote on whether to accept it or not. It is also presumed that the players will indeed accept the proposal before it’s final presentation.

  30. lovesportsandsurfing says: May 6, 2011 12:31 PM

    Nobody seems to believe me, but I can assure you there will be no NFL in 2011,..they have planned for years to have this happen, just like the NHL did,..it worked for the NHL, they got what they wanted,..the owners know full well the fans will flock back in 2012…my life wont change one bit due to a lost year…couldnt care less,..you all should stop letting this ruin your lives,..or maybe its time to get a life.

  31. mick730 says: May 6, 2011 12:43 PM

    I believe the last CBA was put into place in 2006. 2009 was the first year that either party, players union or owners, were allowed to notify the other that they would be opting out of the CBA. The opt out required a 2 year notice. So, in 2009, the owners gave their notice that they were opting out of the CBA. The parties did not have 4 years to negotiate a new deal, they had two years to do so, and there were several meetings between the parties, but of course, no progress was made.

    My belief is that Smith sold his candidacy to the players based on his political connections to the new administration and to certain blocks in congress. The strategy of Smith has always been to litigate and therefore, he was not about to offer the owners anything at all in negotiations for a new CBA; that’s why there was no counter offer from the NFLPA on 11 March, but rather a decertification. Smith knew the owners had to lock them out or face treble damages in anti-trust actions.

    So, the NFLPA will begin talks with the league on a new CBA only when and if the courts find for the owners. If the courts side with the players, the NFLPA will dictate a new agreement with the owners, possibly the elimination of all rules set up by 32 teams acting together as a league.

    Smith is not going to change his postion or his course now. He has too much invested in the litigation path and it’s my opinion that the man has much higher aspirations that being head of a trade association. If he has to eat crow on all of this, his politcal aspirations are finished.

  32. canadianvikingfaniii says: May 6, 2011 12:43 PM

    I hope there are no more processes after this. That title right there is long enough and is getting borderline confusing, any longer and you will have completely lost me.

  33. bearskoolaid1688 says: May 6, 2011 12:47 PM

    @bronco1st
    The players did have a option other than to decertify. They could have suggested extending the talks and the owners and player would till be talking.

  34. santolonius says: May 6, 2011 2:13 PM

    count me in the apparent minority as someone who actually enjoys all the legal speculation on this site.

  35. thefiesty1 says: May 6, 2011 3:25 PM

    Bye will come around eventually to the majority as soon as he realizes he can be replaced. Just keep them swinging in the wind. …and miraculously this whole mess will be nothing but a bad dream.

  36. bronco1st says: May 6, 2011 4:15 PM

    @bearskoolaid1688
    Did you not read the part in my post where the union was under a legal law (federal NLRB) requiring them decertify by 11:59, Fri, March 11 or lose their right to do so?

    Both owners and players left the mediation process (which had been extended for 24 hrs) after an impasse on a compromise offer to extend the CBA further. The mediator George H. Cohen said both sides were too far apart to recommend further extensions.

    The decision to walk away by both parties resulted over the dispute on profit transparency. The owners asked that the union agree to another extension. The union countered they would agree if the owners showed good faith to bargain by opening their books to an independent audit. The owners said they would only provide net profit figures but would not release cost details, in other words, take our word for how much profit we make.

    Since the amount of the team salary cap figures are based on reported profits given by the owners, without independent confirmation of those figures, and any new player contracts are based on the cap amount, it is only reasonable that the figures be audited and verified rather tan take our word for it.

    If the players were asking for more money, which they were not, it would be reasonable for the owners to hide there books. But that was not the case, it was the owners who were asking the players to take less money based on their reported, unverified profits.

    By the owners refusing to give that proof, the impasse was set. That came about at approximately 5:00 pm on Fri Mar 11, less than 6 hours before the CBA was set to expire and leaving the union with that amount of time to file notice with the NLRB of their intent to decertify. If they failed to do so within that short window, the union would lose the right to do so under the federal NLRB rules on decertification.

  37. Chris Guest says: May 6, 2011 4:20 PM

    Willycents,

    You basically have it right. The Appellate court isn’t going to rule on the temporary stay and then change their mind after oral arguments. Makes more sense to let everything play out and issue an appropriate ruling then go back and forth.

    Second, the Appellate Court has essentially given everyone the way they are going to rule – a stay of the preliminary injunction on stopping the lock out. They are unlikely to issue a different ruling given the emergency stay – it would mean the stay shouldn’t have been granted.

    Third, while political bias does come into play at some level in all things a judge does, it slowly evaporates as judges move up the chain. So, District Court judges are pretty notorious for being much more biased then Appellate Courts.

    What Nelson should have done was issue a preliminary injunction but issued a stay of it. That would have gotten both parties back to the table because each would be uncertain how long the situation would last. Instead she provided a one-sided ruling that was almost assuredly going to get overturned or, as the case, the appellate court would issue a stay. This would have likely gotten the parties back to the table.

  38. eagleswin says: May 6, 2011 5:44 PM

    bronco1st says:May 6, 2011 4:15 PM

    ———————–

    You are so misinformed that it is embarrassing but that should be par for the course for player backers. Most do no research and assume that the facts will back whatever they choose to write.

    Mistake #1 : The NLRB has no rules in place that would prevent the union from decertifying TODAY, TOMMORROW, or NEXT WEEK.

    The reality is that the union agreed not to decertify for 6 months after the expiration of the CBA agreement in the last CBA. In other words, they’d have to wait 6 months to sue the owners and we know that would never fly with DeSmith.

    Mistake #2 : DeSmith never wanted an independent audit, the owners suggested the independant audit and were flat out refused by the NFLPA.

    The reality is that the owners were willing to give the raw data to the independent accounting firm but that the firm was to only report the auditted cumulative figures to the union. That would be all they need.

    The players wanted to do the NFL owners what the NBA players are doing to the NBA owners right now. They think accounting principles should not apply to them plus they are going after income from the owners other businesses to prop up their salaries. It has made the CBA process incredibly more contentious and things are much worse because of it. The NFL owners have to be thinking they’ve dodged a bullet after seeing the NBA.

    ———–

    You know what i could spend more time explaining the other points you got wrong but it’s not really worth the time and you probably don’t care how badly you are misinformed.

  39. These pretzels are making me thirsty! says: May 6, 2011 5:54 PM

    “Since the amount of the team salary cap figures are based on reported profits given by the owners, without independent confirmation of those figures, and any new player contracts are based on the cap amount, it is only reasonable that the figures be audited and verified rather tan take our word for it.”

    WRONG.

    Salary cap numbers are already signed off on by independent auditors; always have been. The players’ have never had to “take our word for it”. Deals of this scale don’t exist without mechanisms for independent verification–I’d have thought this would fall under the common sense umbrella.

    This idea’s been repeated on this site more than once, and I’m still amazed that anyone could think that the CBA-agreed salary cap terms weren’t vetted. The players have always had verified numbers for revenue and salary cap purposes.

    As a former auditor, for a former Big 6 accounting firm, with an NFL franchise among his former clients… I can speak from first-hand experience.

  40. These pretzels are making me thirsty! says: May 6, 2011 6:06 PM

    “it was the owners who were asking the players to take less money based on their reported, unverified profits.”

    The owner’s offer to the players included an increase to the salary cap every year–how is that less money? (and it appears you may be using “profits” interchangeable with “revenues” here–they are two different things. Revenues, or income, is what the players get a percentage of, and as already pointed out to you, are independently verified.)

    There were no reductions to the salary cap (thus, no reductions, only increases in player salaries as a whole), and of course no individual player would have their contract reduced (as actually happened in the last NHL negotiation.)

    This idea of the players taking a pay cut of any sort is a complete untruth. The issue is changing the structure from a variable cost to a fixed cost, but in no scenario is there any sort of pay cut involved for anyone.

  41. nflfan101 says: May 6, 2011 6:11 PM

    delebar says: May 6, 2011 10:47 AM

    As someone who has practiced a lot of appellate law my take is this: the court will never rule on the motion to lift the stay. Appellate court clerks talk to the judges they serve about pending cases all day long. This is not an arms length relationship by any means. I would be very surprised if the clerk was simply expressing his personal opinion of what might happen (or not happen) with respect to the motion to lift the stay. I think it is far more likely that the judges hearing this matter told the clerk that they weren’t inclined to ever rule on the players’ motion, and the clerk was, somewhat subtly, passing this fact on to the public.

    I’d also offer this observation. Much of the general public is, in my opinion, under a very false impression about appellate judges. Many believe the cliche that “conservative judges just apply the law, but liberal ‘activist’ judges make up the law to achieve their desired ends.” This is not reality, and this heavily followed appeal is demonstarting how things really work. Generalizing very broadly and much too simply, conservative judges are biased in favor buisnesses and the government – with a further bias towards size: bigger beats smaller. Liberal judges are biased in favor of individuals and individual rights. Both are equally “activist” in tilting outcomes toward their biases. With respect to the stay motion, you could make a pretty good argument that failing to rule on that motion – if that is indeed what the court does – is an activist, conservative judgment. Regardless, I have always found it somewhat amusing that so many people support conservative judges who would be biased against them should they ever be a party in an appeal.

    ————–

    Spoken like a good liberal.

  42. nflfan101 says: May 6, 2011 6:22 PM

    mick730 says: May 6, 2011 12:43 PM

    I believe the last CBA was put into place in 2006. 2009 was the first year that either party, players union or owners, were allowed to notify the other that they would be opting out of the CBA. The opt out required a 2 year notice. So, in 2009, the owners gave their notice that they were opting out of the CBA. The parties did not have 4 years to negotiate a new deal, they had two years to do so, and there were several meetings between the parties, but of course, no progress was made.

    My belief is that Smith sold his candidacy to the players based on his political connections to the new administration and to certain blocks in congress. The strategy of Smith has always been to litigate and therefore, he was not about to offer the owners anything at all in negotiations for a new CBA; that’s why there was no counter offer from the NFLPA on 11 March, but rather a decertification. Smith knew the owners had to lock them out or face treble damages in anti-trust actions.

    So, the NFLPA will begin talks with the league on a new CBA only when and if the courts find for the owners. If the courts side with the players, the NFLPA will dictate a new agreement with the owners, possibly the elimination of all rules set up by 32 teams acting together as a league.

    Smith is not going to change his postion or his course now. He has too much invested in the litigation path and it’s my opinion that the man has much higher aspirations that being head of a trade association. If he has to eat crow on all of this, his politcal aspirations are finished.

    —————–

    BINGO, we have a winner! mick730, you are 100% right.

  43. bearskoolaid1985 says: May 6, 2011 7:31 PM

    @bronco1st
    Yes I read your comments. But had you read mine. I stated that the players could have asked for an extention which would have moved the dead line to the end of the extention. DAH…..

    I applaud mick730 for also correcting @bronco1st

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