So what did Judge Kermit Bye mean when he told the lawyers for the NFL and the players at the end of Friday’s hearing that they should try to settle the case and that, if a ruling is issued, “it’s probably something both sides are not going to like”? I had nearly three hours at another youth baseball game (Team PFT won by a football score of 14-3) to ponder Judge Bye’s words, and I’m now prepared to engage in some official speculation.
It could simply be an idle remark aimed at getting the NFL to think that there’s a way Judge Bye, who by all appearances favors the players’ position, could persuade Judge Benton and/or Judge Colloton to agree to a Solomon-style splitting of the baby. If Judge Benton and Judge Colloton plan to rule that the lockout should remain in place, nothing Judge Bye says matters.
In the event that the judges have been talking about the case and thinking of solutions that could leave each side feeling like it lost, one possibility would be to rule that the lockout can be lifted, but that Judge Nelson should have conducted a full-blown hearing on the question of whether the players are suffering irreparable harm (i.e., damages that can’t be later compensated with a monetary verdict). This would ping-pong the case back to Minnesota, with plenty of time and money devoted to proving (or, from the NFL’s perspective, disproving) that the players’ injuries can’t be cured with cash. In turn, a thick layer of uncertainty would be added to the process, which would make a settlement even more wise.
Another possibility, as Daniel Kaplan of SportsBusiness Journal pointed out earlier tonight on Twitter, the Eighth Circuit could rule that the lockout can stay in place for only six months. Such an outcome would flow from the provision in the Collective Bargaining Agreement that permits an antitrust lawsuit to be filed six months after the labor deal expires. Several questions during Friday’s hearing addressed that point, and it’s possible that Judge Colloton and/or Judge Benton could conclude that a post-CBA lockout can last, but for the agreed-to period of six months.
Either way, Judge Bye’s words give the NFL good reason not to presume that the lockout will be allowed to continue, if the case isn’t settled before the Eighth Circuit decides that the calendar says “due course.” Since no one knows when “due course” will arrive, it makes sense for the parties to continue to negotiate continuously, aggressively, and in good faith.