We promised on Saturday to translate the legalese regarding the motion to lift the lockout in the Brady lawsuit into plain English.
It probably would be easier to translate the Dead Sea Scrolls into Pig Latin.
But we said we’d do it and we always usually sometimes once-in-a-while every-blue-moon honor our word.
The players hope to force the NFL to end the lockout while the antitrust lawsuit against the league proceeds. All of the players’ arguments in the case arise from the fact that, because the union has decertified, 32 separate businesses can’t come together and agree to impose common rules. It’s sort of like McDonald’s, Wendy’s, Hardee’s, Arby’s, and Taco Bell all agreeing that no entry-level employees will receive more than the minimum wage. Separately businesses can’t engage in such practices.
Remember the American Needle case from 2010? The NFL was trying to persuade the U.S. Supreme Court that the league is a “single entity” in an antitrust case filed by an apparel company that objected to the league’s exclusive deal with Reebok. If the NFL had won that case, the same argument would have been used here. But the NFL lost, badly, and so the players have the ability to disband as a union and file an antitrust lawsuit.
The motion that will be presented to Judge Susan Nelson on Wednesday, April 6, focuses on only one thing -- forcing the league to end the lockout while the lawsuit proceeds. It’s no different than the motion filed by Vikings defensive tackles Kevin and Pat Williams after the league tried to impose four-game suspensions in the StarCaps case. The court system prevented the NFL from imposing the suspensions while the case unfolded, even though the players have lost every step of the way. (Indeed, Kevin Williams has decided not to appeal the latest ruling permitting the suspensions to the Minnesota Supreme Court. So even though he lost the case, he was able to duck the suspension for more than two seasons.)
Like most courts, the Minnesota federal court handling the Brady case will consider four factors when deciding whether to issue an injunction lifting the lockout while the case proceeds. First, will the plaintiffs be irreparably harmed without the injunction? (“Irreparably” means damage that can’t fairly be compensated by a cash award later.) Second, can the plaintiffs show that they are likely to win the case on the issue of the lockout being illegal? Third, will the defendants suffer more harm with an injunction than the plaintiffs will suffer without one? Fourth, does the public interest favor an injunction?
There’s no rock-scissors-paper formula that applies when comparing the four factors, and no one factor drives the process.
In other words, the judge can decide what he or she thinks is fair, and then work backward to justify it.
In this case, the focal point of the battle will be the first two factors -- irreparable harm and likelihood of success. The players know it; more than 12 pages of the players’ legal brief is devoted to the first two issues, while barely one page is spent on the last two.
As to the issue of irreparable harm, the players focus broadly on the potential damage arising from a lost year of their careers. This argument overlooks the realities of the sport. In March, April, May, and June, the players aren’t having their careers impacted in a way that only an injunction can fix. They’re losing the ability to work out in team facilities, and they’re risking injuries that could result in a decision by their teams to place them on the non-football injury list and not pay them if/when football resumes in 2011. These injuries arguably can be addressed with a verdict compensating the players for the costs of working out on their own, the per diem payments they would have received while working out with the team, and the expenses relating to any disability insurance premiums aimed at protecting them against injury. To the extent that impending free agents argue that they will experience a much softer market for their services if the lockout ends in August or September, that injury can be addressed via an award of money damages, with the players receiving for 2011 what they would have gotten if they had hit the open market in March.
Some league insiders think that the judge will be inclined to rule that the lockout may continue until the opening of training camps, and that the doors will open as of July 31, at which time the damage begins to become irreparable. We think that Judge Nelson could be inclined to simply deny the motion without prejudice, inviting the players to re-file the motion at a date closer to the start of the season.
Of course, any possibility of an injunction presumes that Judge Nelson believes the players have sufficiently proven that they are likely to win the case on the lockout issue. In the StarCaps case, the judge expressed concern about the players’ ultimate ability to win the case, but the court was sufficiently compelled by the irreparable harm arising from the loss to Kevin and Pat Williams of 25 percent of a football season. Here, the players have a strong likelihood of proving that the lockout violates the antitrust laws -- if the players can also show a strong likelihood that the “sham” defense to decertification won’t apply. The league intends to argue that the players shut down the union too soon, and that the players should have waited until after the agreement expired to do so.
In the brief in support of the motion to lift the lockout, the players focus solely on the fact that the NFL agreed to waive the “sham” defense as part of the settlement of the White antritust case. The brief doesn’t address the timing of the decertification.
Look for the league’s brief, due on Monday, to hammer that issue. The league’s brief also will surely attach documentation of quotes from members of the NFLPA* that tend to support the argument that the union is still calling the shots, such as the recent remarks from Executive Committee members like Mike Vrabel and Domonique Foxworth.
The players then will have a chance to respond in their March 28 reply brief, and Judge Larson surely will have plenty of questions for both sides at the April 6 hearing.
In the end, the “sham” issue may not matter. If the judge believes the harm will be sufficiently significant once the regular season approaches, the potential cloud over the players’ ability to show that they’re likely to win on the merits may not matter. With the antitrust violation being fairly clear and the shelf-life of an NFL player’s career fairly short, Judge Nelson easily could find that, once training camps are due to open, the harm will become irreparable and the lockout will be lifted.
Then again, Judge Nelson also could find that anything lost by the players during a lockout can be given back to them in the form of money, if they win the case. At a time when the players are complaining so loudly about playing more games, the prospect of eventually getting paid to play no games in 2011 could be reasonable, and for some players attractive.
In the end, no one knows how this will come out. The ruling won’t resolve the case, but it will give the side that prevails plenty of leverage when the time comes to negotiate a potential settlement. Each side will surely claim that they are confident of victory; deep down, however, there is plenty of reason for the players and the league to be nervous.
For that reason they should be . . . well, you know by now what we’re going to say they should be doing.