A full 17 days after the U.S. Court of Appeals for the Eighth Circuit issued a temporary stay of the order lifting the lockout until the Eighth Circuit could rule on a motion for a full stay pending resolution of the appeal of Judge Susan Nelson’s April 25 decision, the Eighth Circuit has decided to extend the stay.
The written opinion extends much farther than that.
Here’s the money quote, from page 11: "[W]e have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits.”
Uh-oh.
Though some may view the Eighth Circuit’s 14-page ruling as a gratuitous tipping of the court’s hand as to the looming appeal of Judge Nelson’s ruling, the truth is that the motion for a stay filed by the league represents, in many respects, a mirror image of the motion for preliminary relief filed by the players on March 11. To secure a lifting of the lockout while the lawsuit proceeds, the players had to show that they’ll suffer “irreparable harm,” that they are likely to succeed on the merits of the case, and that a balance of the overall fairness of the case favors of the players. To obtain a stay of the order lifting the lockout, the NFL was required to make a “strong showing” that it is likely to succeed on the merits, that it will suffer irreparable harm without a stay, and that fairness and the public interest favor the league’s position.
In finding that the league was able to satisfy the legal requirements for the issuance of the stay, the Eighth Circuit has in many respects knocked down Judge Nelson’s conclusion that the lockout should be lifted. Most powerful in this regard is the quote pasted above. If the Eighth Circuit believes the NFL has made a strong showing of success as to the application of the Norris-LaGuardia Act to the present facts, then the Eighth Circuit necessarily believes that the players won’t succeed on that key issue as the lawsuit proceeds. And if the Eighth Circuit believes that the players have no chance of proving that the Norris-LaGuardia Act permits a court-order lifting the lockout later, the Eighth Circuit will not issue a court order lifting the lockout now.
The challenge for U.S. Magistrate Judge Arthur Boylan will be to persuade the league to continue to operate in good faith at mediation, despite the fresh knowledge that the NFL likely will win the appeal. And to the extent that the NFL was demonstrating good faith on Monday when it opted to formulate a new offer, the real test will be whether that new offer represents an effort to craft a meaningful long-term partnership, or whether the league’s new offer will simply reflect the new leverage in which the NFL suddenly is frolicking.
Let’s hope it’s the former. The league has a chance to act like grown-ups in the wake of its victory. For 66 days and counting, neither side has. Maybe Day 67 will see the stewards of the game setting aside their desire to squeeze as much money as possible out of the players and instead offer a fair deal that the players will regard as fair both now and in the future.
We doubt that will happen, but we’d love for the NFL to prove us wrong.