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Deciphering Judge Bye’s warning to the NFL, players

NFL Lockout Case Heard In Federal Appeals Court Getty Images

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.

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39 Responses to “Deciphering Judge Bye’s warning to the NFL, players”
  1. deanvernonwormer says: Jun 3, 2011 10:15 PM

    This is not binding arbitration. The judge is really powerless. There will have to be an agreement. And the owners will not agree to anything until the noose is so tight around the players necks they can’t breathe…..or buy bling.

  2. footballfanatic3431 says: Jun 3, 2011 10:20 PM

    It has been said a million times and I will say it again. It is impossible to negotiate continuously, aggressively, and in good faith when the NFLPA* refuse to make a counter offer.

  3. msclemons67 says: Jun 3, 2011 10:21 PM

    “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.”

    ======================================

    Good luck with that. Neither party has negotiated in good faith for the past two years. I doubt they’ll wise up until they’ve choked the golden goose into a coma.

    And then the bastards will expect the fans to give the goose CPR.

  4. hobartbaker says: Jun 3, 2011 10:21 PM

    They don’t call him “Judge Bye!” for nothing.

  5. southridge23 says: Jun 3, 2011 10:28 PM

    Judge Kermit?!!?! Bwahahahahahahhaha

  6. thereisalwaysnextyear says: Jun 3, 2011 10:35 PM

    ” I had nearly three hours at another youth baseball game”

    Must be nice. I won my own business and don’t always have time for this. Maybe that’s why there is always reference to someone else’s article in essentially every PFT post. I remember reading nothing would change after NBC became a partner. I, as a loyal PFT reader, have to disagree.

  7. lostsok says: Jun 3, 2011 10:40 PM

    “Irreparable harm”?

    Explain to Kendric Burney, Jeron Johnson, Mark Herzlich, DeAndre McDaniel and a couple hundred other rookies who didn’t get drafted…and can’t be signed.

    Their careers may never happen because the greedy scumbag owners had to try to prove they have c*cks the size of Jupiter.

    CITIES: SEIZE THE TEAMS UNDER EMINENT DOMAIN AND RUN THE GAME GREEN BAY STYLE!

  8. harmcityhomer says: Jun 3, 2011 10:40 PM

    If the lockout can only legally last until Sept, there is not really much of a threat to the 2011 season.

  9. nahcouldntbethat says: Jun 3, 2011 10:44 PM

    How about this?

    The ruling could very easily leave the lockout in place but note that in the absence of a CBA the plaintiffs in the Brady suit are very likely to eventually win their case and thus end the lockout permanently.

    That ruling would be devastating to all sides, since the players would face a long stretch, maybe more than a season, with no paychecks, and the owners would face the eventual loss of their ability to coordinate the competition in the NFL on other than free market principles.

  10. thereisalwaysnextyear says: Jun 3, 2011 10:47 PM

    sorry, I don’t write for a living. I meant to say “I own my..” instead of I won my…

  11. dumbasdirt says: Jun 3, 2011 10:48 PM

    Enough already. Git-R-Done.

    If the owners want to players to play for less money then they should lower the ticket prices, lower the parking prices, and lower the concession prices. ($100.00 for a decent seat $25.00 to park, and $10.00 for a Beer. What a bargain)

    Oh wait I forgot, the owners want the players to play for less money but charge more for tickets in the years ahead. How stupid of me.

  12. Deb says: Jun 3, 2011 10:52 PM

    footballfanatic3431 …

    The owners have not once complained that negotiations are at an impasse because the players refuse to make a counteroffer.

    First, no one’s buying a car here. It’s a wee bit more complicated than haggling over a price. It’s not a case of the owners offering $100 and waiting for the players to counter with $75. There are several points of contention and they were discussing those points when negotiations broke down. They can continue to discuss those points, one by one, until they reach agreement on each individual point.

    Second, the players made their own proposal several months ago, which the owners rejected outright, with no counteroffer. “No” is a perfectly acceptable response to an offer. When the response is “no,” then the people making the offer can give up or they can go back and come up with another proposal. The owners know full well the points of contention–some of which weren’t even addressed in the last proposal. They are perfectly capable of penning a revised proposal and taking it to the players.

    Not all negotiations are straight-up “I offer, you counter” situations. And yes, I negotiate contracts all the time.

  13. anonymouslyanonymouscommentor says: Jun 3, 2011 10:59 PM

    Here’s my counter argument to PFT Planet: The players can’t negotiate when the owners low ball them and offer a deal they don’t expect the players to accept. At some point you have to maintain your respect, pride, and dignity. How would you guys respond to a low ball offer?

  14. tradeassociation says: Jun 3, 2011 11:21 PM

    Yawn. Look, Judge Bye, for ideological reasons, backs the players, but he knows that the owners will prevail. So, he is merely trying to threaten the owners into caving to his ideological brethren, handing the labor movement – including labor lawyer DeMaurice Smith – a victory. (Man, the ideology here is strange, because the owners are actually defending a socialist system – sharing the wealth literally by revenue sharing, affirmative action by means of a draft and salary cap to give everyone a chance to compete, an anti-trust exemption, and limiting the employment options of players and the hiring options of owners with the draft and salary cap … Kessler and longtime GOP activist Olson are actually advocating a free market system, while the owners, with their longtime Democratic activist Boies are fighting to defend socialism, but hey who cares!)

    And this “the lockout can only last 6 months” thing … look everybody knows that the lockout can’t stay in place indefinitely. The courts can’t force the players to be in a union, so they would have to accept decertification at some point, and once they accept decertification, the lockout is over. The owners know that, the players know that, everyone knows that. So why would Bye “threaten” the owners with something that the owners have long known, and were trying to prevent with their “emergency extension of the CBA for further negotiations” stunt back in March that bought them two weeks before the NFLPA realized that it was just a stalling tactic and that they were never going to get a real offer while the CBA was in place? The owners knew that the players were either going to be able to decertify and have the lockout lifted now, or decertify and have the lockout lifted later. They just gambled that the courts would side with them on the “now” and that the players would cave before the “later.”

    Also, the union does not have to exist in order for a collective bargaining agreement to be signed, as the owners and players signed a CBA in the early 90s while the union was decertified (and the NFLPA recertified shortly after). So, this talk from the owners about how a union needs to be in place in order to have a draft, salary cap etc. is just propaganda. All the union does is shield the owners from an anti-trust lawsuit.

    The lockout – or the threat of a lockout – is the owner’s leverage, and the anti-trust suit – or the threat of such a suit – is the player’s leverage. That’s why the owners keep up with this “negotiate, not litigate” nonsense, because they want to have all the leverage (the lockout, or the imminent threat of one due to an expired CBA) while the players’ having none. If the owners cared about negotiating, they would have done it two years ago when they first decided to opt out of the CBA. Instead, they care about leverage so that they can negotiate on their terms, and everything that they have done since then – from the stalling tactics in March to the illegal lockout fund negotiated with the networks – has been towards that end.

    That’s fine for the owners, but all these people who are claiming “just get to the table and make a counteroffer and work this thing out already!” are ignoring that this would reward the owners for what they did, and the owners will just repeat the “lock the players out and then negotiate” strategy the next time, and the next time, and the next time …

  15. debisthesourceofallknowledgeandwisdom says: Jun 3, 2011 11:46 PM

    Hey lostsok! You and I are homies! Let’s seize all of the assets of the season ticket holders while we’re at it! It will be a good start, and then we can forcefully herd all of the former ticket holders into the stadium and force them to pay ten times more to watch the preseason games! Getting the local political machines of the NFL cities involved will guarantee the success of the league, as long as they load up the “fans” in buses, buy them all a turkey dinner and pay them to attend the games. Why didn’t someone think of this sooner!

  16. willycents says: Jun 3, 2011 11:49 PM

    lostsok says:Jun 3, 2011 10:40 PM
    “…CITIES: SEIZE THE TEAMS UNDER EMINENT DOMAIN AND RUN THE GAME GREEN BAY STYLE!….”

    ————————————————–
    A few problems with this:
    This is not Venzuela, if you wish to live under a system where corporations can be nationalized, please move there to that socialized paradise.
    Do you REALLY REALLY want the government to be involved in football? Think about congress writing rules for football. How much do you want the taxes in your city to go up to support the entire endeavor? Remember, seizure by eminent domain requires payment of reasonable market value by the government entity seizing the item. What cities have access to the $1B to pay for the team?
    How long are you willing to see YOUR team not play while this winds its way through the courts, until the SCOTUS rules it is an illegal seizure?
    \
    Think carefully. Think very carefully about this. Then, petition your city council to execute this plan, and be prepared for them to laugh you out of the coouncil chambers.

  17. vahawker says: Jun 3, 2011 11:49 PM

    lostok…they are not NFL players therefore are not a party to this because there is no guarantee they will be signed. Besides, they are what many of the”pro-player” people dream of…a totally unrestricted free agent able to sign with any team.

  18. starbucker7 says: Jun 3, 2011 11:56 PM

    While the “owners” do seem to be the “bad” guys here but then the players must be labeled the “stupid” guys. Three offers from the owners and according to the press there were concessions. What are the player waiting for??? Christmas??? Make a counter offer. It seems that the players are listening to the lawyers or maybe “De”. Perhaps it would be a good thing for the players to start missing pay checks and then maybe they would get off their butts!

  19. gdpont says: Jun 4, 2011 12:08 AM

    Ending the lockout in 6 months is a doomsday scenario for the owners, Without the union to protect them from antitrust, it will be the wild frontier and most of the players will be getting paid. Peyton will be a free agent as will other marquee players. Not mention all the 9/11 games will be missed. Owners will fold because of such a scenario.

  20. jordan4440 says: Jun 4, 2011 12:17 AM

    Let’s simplify this. We all hate the lockout. If it continues into the season a lot of die hard fans will stop watching the NFL when it continues. So here’s what needs to happen:

    The owners/players need to remember they’re both rich as hell. The owners are great businessmen and the players are talented athletes getting paid to play a game. The players sacrifice their bodies to make that money. The owners give them the platform to play a violent game to become rich and for those who actually care to try to become legends of the game.

    Both sides need to come to an agreement sooner than later because the game has already taken a black eye with this lockout. They need to divide the money accordingly. Owners should make more than the players. That’s just business. I don’t make the same or more than my boss and it makes sense.

    Put greed aside (both sides) and come with a good deal for both sides asap or you will ruin the best game in the world.

  21. oreo51 says: Jun 4, 2011 12:24 AM

    The NFLPA cannot make a counter offer or engage in meaningful negotiations because they do not exist. If they negotiate they prove the owners point that the decertification was only a sham. On the other hand, the owners cannot engage in any football operations without a CBA or they will be sued for antitrust violations. De Smith’s strategy of going with litigation rather than negotiation has both sides caught in a box from which there is no escape. The NFLPA will not give in until they run out of legal options. This may kill several weeks of the season. The courts will allow the lockout to continue.

  22. dequan81 says: Jun 4, 2011 12:27 AM

    thereisalwaysnextyear says:
    Jun 3, 2011 10:47 PM
    sorry, I don’t write for a living. I meant to say “I own my..” instead of I won my…

    ===================================

    Neither comment needed to be made as you added nothing to the topic.

    I agree with a couple of earlier posters, its completely difficult for the NFL to negotiate with itself. The players have not shown or put any effort into good faith negotiations. Is that something the judges know or notice? Is it something that may be weighed in their decision? I don’t have sides in this anymore, I just want football. BOTH sides needs to talk, and if the NFLPA* doesn’t like something they need to counter.

  23. melonnhead says: Jun 4, 2011 12:42 AM

    Here’s my counter argument to PFT Planet: The players can’t negotiate when the owners low ball them and offer a deal they don’t expect the players to accept. At some point you have to maintain your respect, pride, and dignity. How would you guys respond to a low ball offer?

    ——————————————————

    With an offer that would give me more than I’d actually settle for. That’s how negotiations work.

  24. zaggs says: Jun 4, 2011 12:57 AM

    “Deb says: Jun 3, 2011 10:52 PM

    footballfanatic3431 …

    The owners have not once complained that negotiations are at an impasse because the players refuse to make a counteroffer.”

    Um, yes they have. Remember the offer they made at the end of mediation that the union refused to read? They were ticked about that.
    And yes you may be able to dodge one offer, but if you negotiate anything and refuse to respond to 2 offers, you just suck at your job. Actually the players are down 3 offers. There was your mythical offer (which doesn’t show up on a Google search since Sept), the offer to show more financial data, full ofer 1, and full offer 2 and STILL no counter offer from the players. And lets not forget the union REFUSED to show the May 25th offer to the players.
    Hate to let facts get in the way of a crappy argument, but the players are refusing to deal, and hence a deal wont get done because of that.

  25. bonniebengal says: Jun 4, 2011 3:48 AM

    “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?”

    Haha, the judge’s name’s Kermit. We’re leaving everything up to a muppett.

  26. blueyedcharlie says: Jun 4, 2011 4:24 AM

    Hopefully the owners will tighten the noose around the players neck so tight the players will humbly come crawling back on their hands and knees just grateful they have a job in these troubled times where the real working people are dealing with yearly wages that could barely make a down payment on the ungrateful and greedy players mansions on the hill.

  27. ntr0py says: Jun 4, 2011 7:56 AM

    1. If the panel rules that Norris-Laguardia applies, as they likely will, a six month stay is not an option.

    2. It is common practice to make idle threats about both sides being dissatisfied, but Bye is in the minority on this panel, and there is little substance behind it.

    3. BUT, the panel can conclude that the owners will likely owe the players billions as a result of a canceled season. Such an indication might very well force the owners’ hand.

  28. whatever897 says: Jun 4, 2011 9:03 AM

    If the players wanted to really gain some control, they’d ask for a say/decision in the hiring of the next commissioner. It’s clear this one is an owner’s puppet. I tend to believe that this situation would’ve been handled a lot more smoothly if the commissioner acted more like an arbitrator than a lackey

  29. mick730 says: Jun 4, 2011 9:34 AM

    ” And yes, I negotiate contracts all the time.”

    The rent on her double wide.

  30. rickc10m says: Jun 4, 2011 9:49 AM

    traeassociation: I suggest that you consider the definition of the word League. They are to work together for competitive resons. Where would small market clubs be without the current systems ? Talk about buying a championship !

  31. seahawkhuskyfan says: Jun 4, 2011 10:28 AM

    22 years old
    8th grade education
    no other job skills
    MAKING 3 MILLION A YEAR

    Does any of that bother the rest of us who have a hard time putting food on the table?

  32. thephantomstranger says: Jun 4, 2011 10:32 AM

    Deb, how can you negotiate contracts all the time and still be able to have all the other life experiences you’ve had?

  33. thephantomstranger says: Jun 4, 2011 10:33 AM

    Kermit wants the players and owners to make a Rainbow Connection.

  34. vahawker says: Jun 4, 2011 12:29 PM

    whatever897 says: Jun 4, 2011 9:03 AM

    If the players wanted to really gain some control, they’d ask for a say/decision in the hiring of the next commissioner. It’s clear this one is an owner’s puppet. I tend to believe that this situation would’ve been handled a lot more smoothly if the commissioner acted more like an arbitrator than a lackey
    **********************************************

    I tend to beleive this situation would’ve beend handled a lot more smoothly if the players hired a “leader”who acted more like an negotiator than a lawyer who only can see win-lose situation instead of win-wins

  35. Deb says: Jun 4, 2011 12:30 PM

    @zaggs

    Deb: The owners have not once complained that negotiations are at an impasse because the players refuse to make a counteroffer.

    zaggs: Um, yes they have. Remember the offer they made at the end of mediation that the union refused to read? They were ticked about that.

    You mean the offer De Smith hyperbolically referred to as the worst ever? Um … I think that overreaction means they read it. And they turned it down. “No” is a response, although hearing it did tick off the owners. This nonsense about two and three offers is nonsense. The owners said they were going to take an extra billion off the top of the revenue pie and the players said “No.” After long discussions, the owners presented a written proposal that failed to address several areas they’d discuss, the players again said “No.”

    zaggs: There was your mythical offer (which doesn’t show up on a Google search since Sept)

    You mean the one Mike told us about in March when all this started?

    http://profootballtalk.nbcsports.com/2011/03/13/making-sense-of-the-financial-divide-between-the-two-sides/

    Maybe instead of a Google search, you should have just read PFT. I don’t make things up.

    zaggs: the offer to show more financial data

    You mean the offer to show a portion of five years’ worth of financials to a third party and have the third party relate the information from the edited financials to the players? Uh-huh.

    zaggs: and STILL no counter offer from the players

    I covered this counteroffer obsession you guys have in my previous comment.

    zaggs: And lets not forget the union REFUSED to show the May 25th offer to the players.

    You mean the representatives hired and empowered to negotiate on behalf of the players didn’t mail out a copy of the May 25 proposal–which was identical to the March proposal–to all 1700 players for their perusal? Well, first, that proposal has been published, and second, that’s why you hire reps to negotiate on your behalf. They’re empowered to make those decisions without having to consult all 1700 players.

    But, darlin’, I hate to let facts get in the way of your total lack of understanding of what’s going on here.

  36. bmac187 says: Jun 4, 2011 1:16 PM

    seahawkhuskyfan says:
    Jun 4, 2011 10:28 AM
    22 years old
    8th grade education
    no other job skills
    MAKING 3 MILLION A YEAR

    Does any of that bother the rest of us who have a hard time putting food on the table?
    ————————————————–

    Not in the slightest bit, because less than 1% of the population has that kind of athletic ability.

    If it bothers you I advise you stop giving pro sports any money because fans make that possible. If they weren’t generating obscene amounts of money they couldn’t pay the players that much.

  37. Deb says: Jun 4, 2011 1:20 PM

    @thephantomstranger …

    These questions are so funny. Other than the time I spent overseas, I don’t think my life experiences are so unusual. And since I did live in ghetto projects for a few years, it’s easier for me to relate to players who come from those backgrounds than if I’d never left my middle-class home. Don’t your experiences color how you think?

    I went into that situation because I have a degree in journalism wanted an adventure, but it was a dangerous environment and I experienced a lot of hard things, including an assault. Is it really hard to imagine I’d be drawn to other assault victims or to volunteering and researching in poverty and criminal justice areas or working on political issues?

    After returning home, I went into corporate communications, seeing how the other half lived. In my corporate life, I covered a variety of business topics. And I was diagnosed with aggressive, invasive cancer. It happens. Unfortunately it happened to me three times. But I made it through and left the corporate world to go out on my own. Through all that, I left armed with enough knowledge that people have hired me to write books on healthcare and many other topics. So I’m a good researcher. I also edit for publishers. And when I take assignments … I have to negotiate contracts.

    Nothing ususual here … except maybe the girly-girl’s passion for such a masculine sport.

  38. qoojo says: Jun 4, 2011 2:11 PM

    “engage in some official speculation”

    Thanks for the laugh.

  39. Deb says: Jun 4, 2011 6:26 PM

    @mick730 …

    Actually, I’m fortunate enough to have been able to build a house … and, yes, I negotiated the plans, price, revisions, etc., with the contractors. But I’ve known a lot of great people who lived in double-wides. It’s not what’s in your bank account, but what’s in your heart than matters. And I’m sure that went right over your head.

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