After spending two hours at the Nike outlet store near Washington, Pa. waiting for Florio Jr. to pick out new shoes and T-shirts and shorts, I decided to do something far less tedious when I got home.
I read the 89-page brief filed by the players who have sued the NFL for various antitrust violations, with the initial goal of overturning the lockout. The document bears the names of 13 lawyers, some of whom possibly charge in excess of $1,000 per hour for their time. Thus, in addition to the fact that revenue has dried up, the lawyers on both sides of this fight undoubtedly are racking up some gigantic bills.
Confronted with a three-judge panel including two judges who have expressed “serious doubts” regarding the ability of Judge Nelson to lift the lockout, the players wasted no time. In the introduction to the brief, the players describe the ruling to which the Eighth Circuit has hinted as a “perverse outcome” that “can be predicated only on a seriously erroneous construction of labor law, abetted by a misapprehension of the facts of this dispute.”
In other words, the players are arguing in a very tactful way that the judges would have to be corrupt and/or stupid to eventually find that Judge Nelson lacked the power to lift the lockout.
The brief next calls the NFL a “cartel,” a term that in many respects is accurate but that has a distinctly negative connotation. It was, frankly, a stroke of genius for the lawyers to capture the league’s essence in such a simple yet powerful word. Unfortunately, the lawyers used the term only three times in the entire brief.
Eventually, the lawyers take on — with a vengeance — the argument that the Norris-LaGuardia Act prevents district courts from issuing injunctions against lockouts. Though Monday’s ruling from the Eighth Circuit contained language hinting strongly at an eventual finding that the Norris-LaGuardia Act prevents federal courts from lifting the lockout, the comments apparently have served as a proverbial cattle prod to the lawyers, prompting them to articulate their reasoning in a manner that seems incredibly persuasive, possibly even more persuasive than it would have been without the express warning from the Eighth Circuit.
Then again, NFL lawyer David Boies also seemed incredibly persuasive before Judge Nelson. And then she ruled against him.
As to the other arguments, the players’ lawyers have fashioned equally compelling contentions. Of course, the NFL presumably will submit an equally compelling reply.
In the end, the outcome will be determined by the arguments that at least two of the three judges find to be more compelling. Though the judges who agreed to stay the order lifting the lockout until resolution of the appeal have expressed “serious doubts” regarding the question of whether the Norris-LaGuardia Act permits the lifting of a lockout, keep in mind the possibility that one or both of the judges were hoping to apply some extra pressure to the players in the hopes of sparking real progress at a mediation session that was occurring on the same day that the ruling was issued.
Thus, there’s a chance that one of the two judges who expressed “serious doubts” will resolve these doubts in favor of agreeing with the players. That in itself could be the difference between the lifting of the lockout, along with a virtual guarantee that football will happen in 2011 — and the preservation of the lockout, along with a strong possibility that no football will be played this year.
The answer will most likely come at some point in the month of June. Given the players’ brief and in light of the possibility that the judges were merely hoping to give the players an incentive to try to work something out, we won’t be surprised if the lockout is lifted — and we won’t be surprised if it isn’t.