Motion to lift lockout comes down to two factors


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.

33 responses to “Motion to lift lockout comes down to two factors

  1. The player are going to get whacked upside the head with a wooden mallet. They can’t Depends on Dotty this time.

  2. Does anyone really care about the lockout situation on a daily basis?? Please put more attention the the April draft. I don’t care if D. Smith or owner J. Richardson were constipated yesterday.

  3. Didn’t read the article, but I read the headline. The two factors the motion to lift lockout comes down to are simply:
    1: Getting a good grip
    2: Lifting with your legs, not your back

  4. Nicely done, Mike. And it’s unfortunate that the first four commenters were so anxious to post they didn’t bother reading the article because they might have learned something.

    Yes, peester15, I care about the lockout on a daily basis because I care about free agency. You have heard of free agency, right? We have some free agents on our team and I’d like to know if they’re going to go or stay before the draft. I’d also like to know if we can fill some needs by picking up any free agents. 🙄

    Mike, re the fourth point–the public interest: Could the players have added the name of a representative fan to their request for an injunction? As a fan, naturally I believe it’s in our interest to have free agency and to ensure my team gets its workouts, OTAs, camp, etc. But apparently some so-called “fans,” like hobartbaker, want the injunction to be denied, the lockout to continue and us to have no football in 2011. Perhaps they could go watch soccer … and take the soccer ball and shove it in their … okay, I’ll behave.

  5. These long-ass articles on boring NFL labor crap are amusing. I’ve gotten to the point where I read the first and last paragraphs. Suck it up NFL – owners and players – the fans are tired of this crap and just want it resolved.

    Meanwhile, I’ll go back to watching the “Tim Tebow of college basketball”, Jimmer Fredette.

    (Hurry up NFL. Please.)

  6. hobartbaker says:
    Mar 20, 2011 10:38 PM
    The player are going to get whacked upside the head with a wooden mallet. They can’t Depends on Dotty this time.
    Ummm that’s a negative my naive friend. This is exactly why the owners are clamoring for the players to get back to negotiations. The league has very smart and capable lawyers and they know the owners will have and have always have a difficult time over comming issues with the anti trust law in court. That is exactly why the owners are attacking the player decertification as a sham. If they can prove a union still exists they rid themselves of the very real threat to their limited anti-trust protection.

    Look if the owners felt they had an advantage by having this dispute go to court they too would have done so a long time ago. We’re talking billions of dollars here and no one holds back with that much money involved. Each group will use the tools available to them to get the upper hand. In the owners case it’s a lockout (which was dimminished with Dotty ruling the lockout insurance illegal)….for the players it’s decertification and the courts.

    Just as with the Dotty ruling whatever happens after this court ruling will go a long way towards determining the outcome of this dispute.

    If you truly don’t care about either side’s argument and just want to see NFL football in 2011 then you would be rooting for the judge to lift the lockout…..if you have some sort of agenda that outweights watching football in 2011 then you’re probably hopping the lockout is not lifted.

  7. Appreciate the article, it seemed fair minded and objective. Whoever wins the case, I hope the leverage it creates leads to the bargaining table and an agreement.

  8. Regarding the timing of the decertification:
    1. The original CBA expired on March 4th.
    2. Two extensions were granted until March 11th.

    Per the following link on from March 4th, the conditions for the extensions were discussed.


    “During Friday’s one-day extension, teams were instructed ( by the league) to operate as if the CBA has expired, meaning they no longer can cut, re-sign players or make any player moves until a new CBA is bargained. The terms will remain the same under the new seven-day extension.”

    Therefore, the league cannot effectively argue that the NFLPA decertified too soon if the league itself stated that the extensions – for negotiation purposes only – operated under the premise that the CBA had expired. The ‘sham’ defense is without merit.

  9. Something that makes no sense to me in this whole legal mess, is the following:

    How the heck can the owners not impose a lockout? Anti-Trust laws because the owners of separate businesses are agreeing to certain practices? Then how can a league even exist, they have to agree to rules to play the game. Isn’t that like Burger King and Taco Bell agreeing that the cheapest non-side item has to be $2? So in essence, wouldn’t finding the owners in violation of Anti-Trust laws result in no NFL?

  10. The average fan has no clue what players go through. Then players cant complain because fans bash them for how much money they make. Players have to make as much money as they can and try to get out some what healthy before the big money wheel NFL kicks them out. Anyone that sees it differently was the last guy picked for a team and was jealous of the athlete. You can try to put yourself in their situation but your not so stop living in a dream world.

  11. endzonezombie,

    You are completely wrong. how the league treated the extended period has no bearing on whether or not the CBA had actually expired. And you are so off base that the union/players won’t even try to make your argument, one because it has no merit to begin with and two, if the CBA had actually expired on March 4, then the union cannot decertify and file a suit for six months after the desertification. That is precisely why they ran to court before the CBA actually expired, they felt it was worth it to try and get the suit filed before the CBA expired because legally they would have to wait 6 months if the CBA expired.

  12. To continue my previous post, the six month waiting period is probably why the union was so anxious to terminate negotiations instead of agreeing to another extension. If the court or NLRB rules that the union decertify too soon, then union would have wait 6 months from the actual end of the CBA and then refile. And each extension would put that 6month waiting period further in the future, already being in September with the 6 month window would mean that each one week extension would cost the players a missed game even before they were able to file a suit. So for those don’t understand why they didn’t continue mediation – I bet they realized the likely that the current case could be tossed because of the timing of the decertification and they didn’t want to push that 6 month window further into the season.

  13. 6thsense79 says:

    If you truly don’t care about either side’s argument and just want to see NFL football in 2011 then you would be rooting for the judge to lift the lockout…..if you have some sort of agenda that outweights watching football in 2011 then you’re probably hopping the lockout is not lifted.

    Sorry, but that makes no sense. I care about seeing football in 2011. I also care about the business of the NFL and what’s best for the fans and fair for those involved. And I want the players to be granted their injunction and the lockout to be lifted.

    First, lifting the lockout will resume the NFL season, free agency, and OTAs. Second, it will force the owners–who I believe have not negotiated in good faith and are dragging their heels now while trying to make it seem the players are the obstacle–back to the table. At that point, I think they’ll suddenly be more inspired to work out a fair deal.

  14. @6thsense79…….I was just ragging Doty about his age……”Depends”…..get it……….I know, it wasn’t that great………

  15. hail2tharedskins:

    What makes this forum entertaining is the number of self-proclaimed genius’ that post here. The NFLPA was prepared to file for decertification on March 4th. The league negotiated a 7 day extension for negotiating purposes. You have no idea what conditions for the extension were discussed in that March 4th meeting, because you, pal, were not there. Neither do you know what the players/NFLPA* will argue in response to any ‘sham’ defense. I merely pointed out one of issues surrounding this issue. The attorneys representing the NFLPA are not as stupid as you think they are. They know many more details than you think you do.

  16. @hail2tharedskins

    …and that’s why the owners presented their “offer” 10 mins before the deadline knowing that the players would not have the time to respond before the CBA expired and thus remove their option of decertifying.

    In other words it was a sham offer purely done for PR.

    In other words, the owners had zero interest and put in very close to zero effort in making the mediation a success.

    The owners have planned on a lockout for two years and nothing was going to get in their way.

    The owners want a lockout, they want a union and they want to break that union by pitting player against player as they sit at home with no work & no money coming in.

    Once that is done they can cream off the profits for the next 20 years.

    Games will have to be missed for the owner’s strategy to work. They’re OK with that. They don’t care about the fans.

    The players don’t care any more than the owners but at least they want to play because it’s the only way they will get paid. And they’re going to court to force the owners to let them do that.

    So Vrabel is 100% correct. All true fans will want the injunction to be granted. It guarantees next season.

  17. Why would you compare the owners to being different fast food restaurants? The NFL itself is like McDonald’s. The owners are essentially franchising a McDonald’s business. If they are franchising a business they have full right to say that company wide our minimum salary or maximum salary is this. If you were to compare the NFL to anyone you would have to compare it to other sports leagues. Such as the NFL is McDonald’s, in that most people like it and will take the family there without thinking that they are going to have a horrible experience. MLB is like Subway. They think it will be fast and easy, yet it never is. The NBA is Taco Bell in that it seems like a good idea until the next day when you think why did I go there. The NHL is like White Castle, people pretend they like it, but in all reality no one likes it. The teams are suppose to be a franchise in that not anyone can get one and that just because someone doesn’t have the same idea as you, someone has something similar that will try to take your spot if you are not there.

  18. Therefore, the league cannot effectively argue that the NFLPA decertified too soon if the league itself stated that the extensions – for negotiation purposes only – operated under the premise that the CBA had expired. The ‘sham’ defense is without merit.

    Whether the sham defense [ as relates to the timing factor] is going to stand or fall, will be determined by the judges view of interpretation. The”Letter” of the law verses the “intent ” of the law.Which one is going to prevail ? Case precidence anyone?

  19. I am curious. How can a member of the “2012 draft class”, that does not exist, join the players lawsuit without putting their current NCAA eligibility in jeopardy? Becoming involved with a lawsuit vs. a league your not a part of means at the very least your hiring a lawyer. A lawyer that will represent you vs. the league. If you cant officially hire an agent to represent you in the NFL, why should you be allowed to hire a lawyer?

  20. @ Deb

    Honestly think about this for a minute, what public interest does the NFL serve? Would you shrivel up and die if you found out there was not going to be football next year? Would you get a divorce (assuming you are married) and have your kids (assuming you have kids) taken away from you? Would you go bankrupt and lose all of your savings? Would your health decline so rapidly that you would be given months to live?

    The answer to all of those is an obvious no. Life would go on. The only thing football does to the public is distract it from the realities of the world around it for one day a week. Would local economies suffer? Yeah for those 5-6 weekends a year when a team actually hosts a game. So a few hundred part time employees would lose a couple hundred bucks. However I am sure that the smart business men who own NFL teams will find another way to fill the stadiums and make money (concerts, etc.) and keep those people employed.

    Are the players being damaged? Yeah, they will be forced to get real jobs and earn 35k-60k a year an average American. They will have to pay 30 bucks a month for their gym membership like we do. Interesting enough though, they wont have to worry about life long injuries that they are complaining about if they don’t play football. In theory that argument may backfire in their face.

    I, like you, do also care about the lockout on a daily basis which is pretty evident because I live on this site every day between work projects. I do not however care if I miss one season of football (if I miss two however I might lose it). But keep in mind what a fan like me really wants. I want these greedy players, who all think we are too dumb to understand what is going on, to realize that they are EMPLOYEES. The NFL has been here before them, it will be here after them. If the lockout continues, which I hope it does, I want CFL, UFL and AFL players signed to my team (the Cowboys) and I will buy their jersey’s and root for them just like I do now (of course the talent level wouldn’t change for them). It is the daily reminders of arrogance from these players, and also stupidity (Adrian Peterson and your homeboy Rashard Mendenall) that has me irate.

  21. The NFLPA must destroy the institution (NFL) it depends upon for sustenance to win its argument. The NFL must destroy its resource (NFLPA) to win its argument. Bottom line, its a chicken-egg decision. The ‘resource’ can be renewed–there are players willing to play outside of NFLPA CBA. But, without the institution where will the players play? NFLPA seems to be playing with nuclear material and better be very careful. Mr. Smith ostensibly needs the courts to make his ‘business’ arguments. He may indeed ‘win’ by losing the league and the consumers that sustain it. The fans will, in the end, be the final court of record and will overrule any decision made by Minnesota’s progressive bench.

  22. A few comments:

    1. If the league is forced to operate as 32 separate businesses, don’t the rules of the game and roster sizes also become anti-trust violations? Can The Cowboys and Patriots negotiate to play under a different set of rules than two other games?

    2. Wouldn’t roster sizes become up to each business, since the current size is a result of collective bargaining? Can the owner of the Saints, in an effort to save money, enter the season with only the guys he already has signed on his roster? Perhaps, his coach will tell Drew Brees that he’s now playing DB in addition to QB. If he refuses, couldn’t he be cut for breach of contract – since I presume his contract doesn’t specify that he can only play QB. There would be no league disciplinary process since that was also collectively bargained for.

    I would think the idea that the league can operate as 32 truly independent businesses is absurd. I would hope a judge would see it that way as well and find a way to force these sides back to the negotiating table.

  23. Hurray for case briefs on PFT! I predicted a lockout about two years ago, and am sad to see I was apparently right.

    Obviously an injunction in this case would be a temporary solution to a greater problem, but if Nelson were to issue the injunction, what would be the chances the two sides could resolve their differences before either (A) the injunction is lifted or (B) things break down and the sides walk away?

    Deb: it seems you think that those on the side of the owners are shills. I’m not a shill for the owners, but neither am I particularly sympathetic to the players. In the end, I think the players are responsible for refusing to compromise, but I think it’s obvious that the league and owners have a serious advantage in communication to the public, and that’s resulting in a superior propaganda campaign. On the players’ side we have a bunch of loose cannons who don’t know anything about shutting the hell up with their twitter/facebook accounts. This results in a rapidly-growing polarization toward the owners’ side on the part of the public, for better or for worse.

  24. endzonzombie,

    Funny you call me a self proclaimed genius, yet you are the one making stuff up. I know exactly what I am talking about. Try reading the actual language of the CBA and the lawsuit and you will find it that no one is claiming that CBA actually expired, including Judge Doty who had sign of an agreement to legally extend it! Try reading the relevant public available information before you tell I don’t know the details because I wasn’t there. I never claimed to have inside knowledge, only the FACTS that are publicly available and meanwhile you posting as if you have inside knowledge when you are completely off base and the legal filings that are publicly available clearly prove you have no idea what you are talking about – that is unless of course you are the only one privy that information and the league, union, and judge overseeing the CBA are unaware. THE FACTS ARE THE CBA DID NOT EXPIRE ON MARCH 4! And no one is disputing that fact except you. And since you apparently have never seen it, here you go educate yourself on the topic you choose to discuss…

  25. In my view, Mike’s explanation can be boiled down to one sentence, which is the most instructional here: “In other words, the judge can decide what he or she thinks is fair, and then work backward to justify it.”

    On the merits, I think the owners are on sound ground arguing that the union’s “disclaimer of interest” or decertification is a sham. What is more problematic for the owners, of course, is the pivotal question of whether they WAIVED that defense under the SSA and CBA.

    If U.S. District Court Judge Susan Richard Nelson finds that the owners waived the “sham” defense, it most likely will NOT be because she concludes that the CBA had expired prior to the union decertifying.

  26. idontcareuknow says:
    Mar 20, 2011 11:25 PM
    Something that makes no sense to me in this whole legal mess, is the following:

    How the heck can the owners not impose a lockout? Anti-Trust laws because the owners of separate businesses are agreeing to certain practices? Then how can a league even exist, they have to agree to rules to play the game. Isn’t that like Burger King and Taco Bell agreeing that the cheapest non-side item has to be $2? So in essence, wouldn’t finding the owners in violation of Anti-Trust laws result in no NFL?
    Not exactly. They could enter into a partnership/trade agreement (like when Taco Bell and Pizza Hut build a restaurant together) – part of the trade agreement would be “OK, we will all sit down and come up with a schedule every year”. Of course, if they go down this path, some teams could pay their players minimum wage (if they’d take it), while others would spend millions to win chamionships over and over.

  27. @chapnastier …

    Yes, I would shrivel up and die if there were no football next year. Some people take tranquilizers. Some people drink to excess. Football is my stress release. No, on second thought … I would get a cabin in the woods … stop personal grooming … and start sending suspicious packages filled with stink bombs to NFL owners. UniDeb.

    @burntorangehorn …

    As I’ve clearly said, I think the influx of pro-owner commenters who registered within the 48 hours after decertification are league plants. You are have been around too long to be a league plant. You’re just wrongheaded like chap. Maybe it’s a Texas thing.

  28. Another point of view. IF the judge sides with the players, which I believe he will. (Democrats) The owner of every team could simply wave/release every player on the offical roster. Talk about a “lock out”. How bout a “Waver Out” ? Do away with the draft and start over. Pay the players what their worth, not what the player thinks he’s worth. Say good by to Ocho eight O or what ever his silly name is. Players are making millions of dollars and cant catch a football, cover a WR or throw a pass. Its time to start over. Think of how much fun it would be to watch your team signing 53 of 1,696 available pro players plus 250 or so college players not to mention college free agents… Just a thought,,,,

  29. I am sure there’s some formula, but exactly how would the court determine how much money a guy WOULD have gotten in FA in order to award damages? It’s not something that’s quantifiable…IMO. You can’t say well Joe makes $40/hour, he was denied 40 hrs/ week work and was out 6 months…etc. You can’t really even look at last year’s FA or the year before at the same position because demand fluctuates so much. Maybe they will use franchise tag #s as some kind of basis?

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