Before we delve into the 89-page brief filed by the players in defense of the 89-page ruling from Judge Susan Nelson (I almost accidentally typed Susan Olsen), let’s address a question that has been raised by various readers over the past few weeks via e-mail and Twitter.
After the Eighth Circuit issues a decision on whether the lockout will be lifted, will the case go to the U.S. Supreme Court?
The easy answer is that whoever loses undoubtedly will attempt to take the case to the Supreme Court. Far more complicated is whether the Supreme Court would agree to take the case, whether the ruling would be overturned, and most importantly how long it would all take.
According to the Federal Judicial Center in Washington, D.C., the Supreme Court receives roughly 7,000 requests per year, accepting roughly 170. That’s a success rate of only 2.5 percent to even get in the door.
In many cases, the Supreme Court chooses to get involved when a split of opinion has emerged in the various Circuit Courts. If, for example, the Eighth Circuit concludes that the Norris-LaGuardia Act does not permit federal judges to prevent lockouts even where a union has decertified, the Supreme Court could look to the question of whether the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, D.C., or Federal Circuits have issued a different ruling on the same or similar facts. If there is no split among the Circuit Courts, the Supreme Court is far less likely to take the case.
Possibly making it less likely that the Supreme Court would get involved now is the fact that any ruling from the Eighth Circuit wouldn’t be a final disposition of the case. In other words, the Eighth Circuit wouldn’t be dismissing the lawsuit based on the Norris-LaGuardia Act; instead, the Eighth Circuit would be concluding that Judge Nelson didn’t properly apply the factors for determining whether the players are entitled to a lifting of the lockout while the antitrust lawsuit proceeds. The case would then proceed.
Even if the Supreme Court were to take the case, the nine judges currently have a distinct conservative tilt, which means that the best realistic hope for the players could be a 5-4 decision upholding a decision to permit the lockout to proceed. If, on the other hand, the Eighth Circuit scuttles the lockout, the NFL would be more likely to secure a favorable outcome, if it can first get the Supreme Court to take the case.
Finally, time will be a significant issue. No matter how loudly NFLPA* leadership bangs on the table and vows to take this matter to the highest court in the land, the Supreme Court soon will adjourn until October 2011, and the Supreme Court most likely will move thereafter at its own pace. Thus, to the extent that players may be led to believe that remaining unified and giving up game checks in the unlikely event that the Supreme Court: (1) takes the case; and (2) lifts the lockout, it’s highly unlikely that the Supreme Court would issue a ruling before the 2011 season has been completely lost.
Bottom line? For all practical purposes, the party that loses before the Eighth Circuit regarding the lifting of the lockout needs to release its grip on Plan A and move on to Plan B. If, as expected, the Eighth Circuit allows the lockout to stand, the question for the players will be whether Plan B entails negotiating a new labor deal and getting back to football — or searching for the next potential leverage point via litigation and sacrificing a full year or more of their careers.
We can’t imagine that more than half of the league’s current players would choose the latter, if the options are explained to them in an honest and direct fashion by the folks who are being paid to protect and advance the players’ best interests.