Two weeks after the U.S. Court of Appeals for the Eighth Circuit decided to delay the lifting of the lockout temporarily, in order to consider whether to delay it until the appeal of the ruling lifting the lockout is resolved, the Eighth Circuit still hasn’t ruled on whether the lifting of the lockout will be delayed.
As a practical matter, the lifting of the lockout continues to be delayed, with only three weeks remaining until the Eighth Circuit hears arguments on the appeal itself.
Adam Schefter of ESPN reports that court clerk Michael Gans has said that no ruling will come Friday, and that no ruling should be expected before Monday. On Monday, we’ll likely hear something similar from regarding the three-judge panel that has been operating more like a three-ring circus.
The failure of the Eighth Circuit to rule on the motion makes little sense, given that Judge Susan Nelson has found that the players are suffering irreparable harm during the lockout. If the Eighth Circuit believes that the players aren’t presently suffering irreparable harm, and more specifically that they won’t suffer irreparable harm until the appeal is resolved, the Eighth Circuit should just say so. Alternatively, if the Eighth Circuit believes that the NFL will suffer irreparable harm if the lockout is lifted temporarily, the Eighth Circuit should say so.
On April 29, two of the three judges who are considering the motion for a stay and who will handle the appeal of Judge Nelson’s 89-page ruling justified a temporary delay of the lifting of the lockout by explaining that “[t]he purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal.” Though we realize that federal judges have plenty of other things to do, two weeks seem to be more than enough time to determine whether the lockout will or won’t be lifted while the appeal proceeds — especially since the Eighth Circuit thereafter granted the NFL’s motion to expedite all other aspects of the appeal.
At this point, the ruling on the pending motion matters far less than the fact that the Eighth Circuit has opted to do nothing, which operates as a practical matter as a granting of the motion. Wouldn’t it be more fair to the parties to articulate the reasoning for granting the motion in writing?
Perhaps the truth is that, given the legal standard that applies to motions of this nature, the Eighth Circuit simply can’t plausibly cut a path from Point A to Point B. Perhaps the judges realize that the NFL wouldn’t truly be irreparably harmed by a temporary cessation of the lockout, and that absent such harm a stay would not be justified.
The players presumably are frustrated by the lack of a ruling, but their lawyers know not to ask for a ruling, given the rule of thumb in the legal community that he who asks for a ruling often gets a ruling that he didn’t want. Besides, any effort by the players to rattle the robes of the three judges would instantly be met with catcalls and other criticisms on NFLLabor.com regarding the fact that the players have only themselves to blame for thrusting this labor dispute into the inherently unpredictable legal system.
And so we wait. And wait. And while we wait we can wonder whether we’ll likewise be waiting and waiting for these same three judges to issue a ruling on the far more important issue that has landed on their docket.