There’s some confusion and misinformation floating around regarding the early phase of the antitrust litigation filed by Tom Brady and others on Friday afternoon in Minnesota. Our goal at this point is to help you understand how things could unfold in the coming days and weeks.
For starters, no one knows what will happen or when it will happen. Anyone who tries to say otherwise this point is lying or stupid or a little (or a lot) of both. The players opted for uncertainty because they concluded that from uncertainty a better deal eventually will emerge. The league prefers certainty because the league thinks a better deal will come from collective bargaining capped by a lockout.
For now, we know that the players have filed a lawsuit aimed at blocking a lockout and, eventually, scuttling any rules imposed by the 32 business that make up the NFL. We also know that the league will fight the effort, claiming that the ability to attack decertification as a “sham” survived the expiration of the CBA.
And we know that the players have filed a motion for preliminary injunction, which means that the players hope to obtain a ruling blocking the lockout while the litigation proceeds.
The players have not, as others correctly have pointed out, attempted to pursue a temporary restraining order. A TRO is obtained on what the lawyers call and “ex parte” basis, meaning that one side goes into court and obtains an order preventing someone from doing something that they plan to do while the court takes up the issue. Temporary restraining orders are granted only in very rare circumstances, typically when failure to intervene could lead to irreversible harm of some sort.
A motion for preliminary injunction can be resolved in a matter of days, or in a matter of weeks. At this point, no one knows how quickly, or how slowly, the federal court in Minnesota will move. If, as the league fully expects, the case will be assigned to Judge David Doty based on his 20-plus-years of expertise in NFL labor matters, Doty would then schedule a hearing — and he could issue a ruling from the bench at the end of the hearing, or at some point thereafter.
The hearing could occur this week, or next week, or at some point thereafter.
Most judges treat motions for preliminary injunctions with a sense of urgency. As the players’ lawsuit alleges, pending free agents are being kept from signing with new teams. Eventually, players under contract won’t be permitted to take part in the offseason workout program, which allows them to stay in shape under the supervision of team employees. The players likely will seek a quick ruling — and the judge probably won’t drag his feet.
The first battle will focus on whether the union decertified in a way that cuts off the “sham” defense. If the union prevails, the lockout likely will be blocked, since a decision by 32 separate businesses to shut down a non-union workforce constitutes a fairly clear violation of the antitrust laws.
We’ll continue to stay on the cutting edge of this rusty razor blade, even though we’d rather be talking about free agency and offseason workouts and the periodic arrest.
At least we’ll still have the periodic arrest.