In our 10 things to know, right now, about the lockout ruling, we devoted several paragraphs to the appeals process. A semi-decent night’s sleep has caused me to conclude that it’s a sufficient important topic to justify its own post.
In any appeal, the court considering the work of a lower court must determine the appropriate “standard of review.” It’s a concept aimed at ensuring the legal system doesn’t become a series of fresh bites at the apple, with the losing party happily taking a chance at the new audience that the next level provides.
In many cases, the issues are sufficiently important and/or straightforward to allow what the legal system calls “de novo” review, giving the losing party the new audience that it craves. In other cases, the legal system requires a certain amount of deference to the work of the lower court.
The decision to grant a motion for “preliminary injunction” (i.e., give us part of what we’d get if we eventually win the case now) entails greater deference.
So while the NFL is confident on appeal in part because 13 of the 16 judges (active and senior status) assigned to the U.S. Court of Appeals for the Eighth Circuit were nominated by Republican presidents, the three judges assigned to handle the case won’t be able to replace Judge Nelson’s judgment with their own. They’ll be permitted to overturn the decision only if they believe Judge Nelson’s decision amounts to an “abuse of discretion.”
As we observed last night, the 89-page written ruling seems was expertly crafted to avoid a finding that Judge Nelson acted unreasonably. Even if at least two of the three judges assigned to the case are inclined to conclude that the decertification of the union was a sham or that the courts must defer to the NLRB or that the Norris-LaGuardia Act prevents a court from enjoining a lockout, Judge Nelson’s reliance on past cases from the 8th Circuit supporting the idea that a so-called “preliminary injunction” can be obtained even if the likelihood of winning the case is lower than 50 percent, the question of whether the appellate judges believe the decertification of the union is valid doesn’t matter. All that matters for now is whether the players have shown that they have a “fair chance of prevailing” at trial, a standard used most recently by the 8th Circuit in a case decided in 2008. For the purposes of the appeal, the judges would be required to find that Judge Nelson abused her discretion in concluding that the players have a “fair chance of prevailing” at trial.
It’s similar to the deference that a referee must give to the call on the field during replay review. Instead of substituting the referee’s judgment for the judgment of the official who made the call, the referee must look for evidence demonstrating that the call was clearly wrong. While Judge Nelson’s decision doesn’t have quite as much leeway, it’s simply not enough for the appeals court to disagree with her interpretation of the law. To overturn the decision to lift the lockout while the litigation proceeds, the appeals court must believe that the decision amounts to an abuse of the discretion inherent to trial courts.
So before the owners presume that they’re going to win on appeal because Judge Nelson was “wrong,” that’s not the point. The question is whether she abused her discretion. Based on the 89-page written ruling, it won’t be an easy thing for the NFL to prove, even if represented by a legal dream team of David Boies, Johnnie Cochran, Clarence Darrow, and Abraham Lincoln.