For more than a week now, all eyes of have watching the U.S. Court of Appeals for the Eighth Circuit for a ruling on whether the lockout will remain in effect pending resolution of the appeal of Judge Nelson’s ruling that the lockout should end while the Tom Brady antitrust lawsuit goes forward. Surprisingly, no ruling has been issued, which as a practical matter has allowed the lockout to continue pursuant to the terms of the temporary stay granted 11 days ago.
The surprises haven’t been limited to the decisions, or lack thereof, from the court. On Tuesday, a group known as the “National Football League Players’ Reserve” filed a document entitled “motion to stay Judge Nelson’s lockout order.” The body of the document seems to argue only that the NFLPR receive an opportunity to intervene in the action.
We’ve never previously heard of the National Football League Players’ Reserve, whose president, David R. Flood, filed the motion on his own, without counsel. In 2008, Flood filed a lawsuit against the NFL, the Raiders, NFL Films, and Reebok. The lawsuit, which was dismissed with prejudice in 2009, attacked the legality of the move of the Giants to New Jersey and all subsequent franchise moves. The lawsuit also claimed that the NFL, Reebok, and NFL Films “knowingly have been marketing a fraudulent generic de facto secondary meaning trademark — Oakland Raiders.” Among other things, the 2008 lawsuit sought that a preseason game be played between the Giants and Raiders in Sacramento, California, where Flood resides, the awarding of an NFL franchise to Sacramento, and $2.5 billion to build a stadium. (That would be one hell of a stadium.)
In Flood’s latest legal document, the NFLPR identifies itself as “a separate single entity nominative fair use organization whose reference and interests pertain to collegiate rookie football players entering the ranks of the National Football League,” whatever that means. The document focuses on the concept of union dues, apparently alleging that the players have a right to be notified by the NFLPA upon decertification of the union that they may revoke their dues authorizations.
The document contends that incoming rookies should be permitted to use NFL team facilities because they were not members of the union at the time of decertification. There’s also a paragraph that purports to contend that the league did not finagle TV payments during the lockout as a device for funding the lockout, a contention that isn’t even an issue in the Brady litigation.
It’s unlikely that the Eighth Circuit will take any action on this motion, other than to summarily deny it — or possibly to completely ignore it.