After being sent out of the room for two days of not-so-secret mediation talks in Chicago, the lawyers are back, with a billable-hour vengeance.
Today, in St. Louis, the U.S. Court of Appeals for the Eighth Circuit will take up the question of whether Judge Susan Nelson’s order lifting the lockout will be upheld or overturned. Specifically, the three-judge panel will hear oral arguments from the lawyers. And even though the entire process has been expedited, don’t except a Judge Wapner-style “I’ll be back in five minutes” decision. Chances are it’ll be at least a week and as long as a month before the judges issue their ruling.
With two of the three judges leaning in the NFL’s favor and one judge apparently poised to rule for the players, there’s a belief that the final outcome will result in the lockout remaining in place. But the questions posed by the two judges (Colloton and Benton) who are perceived to be willing to let the lockout stand could shed light on whether one of them is having serious doubts about his “serious doubts.” If so, that could give the owners even more reason to try to work out a new labor deal before the Eighth Circuit rules.
Regardless of the outcome (assuming a settlement isn’t reached), the loser will appeal to the full Eighth Circuit court for a rehearing “en banc.” (“Why would they do it in a bank instead of in a courtroom?”) Then, the loser will undoubtedly file a petition with the Supreme Court, even though the Supreme Court agrees to consider only a fraction of the petitions it receives.
On that topic, players’ lead counsel for the appeal, former U.S. Solicitor General Ted Olson, sounds like he has been drinking the Jeff Kessler litigation-over-negotiation Kool-Aid, hinting at a legal strategy that would wipe out all of the 2011 season. “There are significant legal questions here that, if decided one way or the other, one side may not be satisfied,” Olson told Alex Marvez of FOXSports.com. “The [Supreme] Court has frequently considered decisions involving professional sports. It would not at all be unheard of in a case like this that it would go to the Supreme Court.”
He’s right, even though it remains a very long shot. Either way, if the NFLPA* decides to let the process play itself out before engaging in meaningful talks with the NFL, it’ll be a clear signal that we’ll have to make chicken salad out of a substandard potpourri of college football, the CFL, and the UFL. (But we’re ready to embrace college football, the CFL, and the UFL, if need be.)
Olson also hinted at a desire to continue to push the antitrust lawsuit regardless of the outcome in the Eighth Circuit, which also would jeopardize the season, if the strategy entails blindly pursuing victory through the courts without giving genuine consideration to negotiation. “Whether or not the lockout is temporarily enjoined does not resolve the question of whether the lockout violates the antitrust law,” Olson told Marvez. “That’s going to be something that plays itself out further.”
Here’s hoping that Olson was merely engaging in lawyerly bluster, and that the parties will remain committed to talking privately about solving the dispute, while the lawyers find another cow to milk at more than $1,000 an hour.