On Monday, Judge Susan Nelson made her feelings regarding the NFL’s work stoppage known, entering an order that concluded with these key words: “The lockout is enjoined.”
The league believed that it needed more guidance as to whether Judge Nelson meant what she had said.
On Tuesday, the U.S. District Court for the District of Minnesota issued a formal “Judgment in a Civil Case” granting the motion for preliminary injunction filed by the players, and reiterating the key words: “The lockout is enjoined.”
And the league continued to believe that it needed more guidance as to whether Judge Nelson meant what she had said.
On Wednesday, Judge Nelson refused to stay the lifting of the lockout while the NFL appeals the ruling. Based on the applicable legal standard, the decision isn’t a surprise.
So what next? As we see it, the league can comply with Judge Nelson’s rulings and treat the lockout as over -- or the league can maintain the status quo pending appeal of the decision not to stay the injunction, pending appeal.
The risk of a finding of contempt of court has spiked significantly after today’s events, in our view. Though the league could project (feigned or otherwise) confusion on Monday and Tuesday, there is no doubt today regarding Judge Nelson’s intentions.
The lockout is over. The injunction ending the lockout is not stayed.
In light of letters from the lawyers for the NFL and the players submitted to Judge Nelson on Wednesday, we believe the league no longer can credibly claim that further clarification is needed.
First, a letter from NFL local counsel Aaron D. Van Oort to Judge Nelson targeted the proposed order submitted by the players on Monday night elaborating on the ruling lifting the lockout. “We believe that the prescriptive language of the Court’s Order -- ‘The lockout is enjoined’ -- coupled with the Opinion that precedes that language, provides sufficient guidance of the Court’s directions,” Van Oort writes.
The players saw the opening, and they drove a bus through it. In a letter from players’ local counsel Barbara Berens to Judge Nelson, the players withdrew the proposed order, "[g]iven the NFL Defendants’ concession that they understand their obligations.”
In other words, Van Oort said all that needs to be said. “The lockout is enjoined,” and all that that implies.
It means that the NFL, which has yet to issue a statement in response to the denial of the motion for a stay, must decide whether to fully and completely open for business, or to risk the penalties that arise from defying an order issued by a federal court.
The safest course would be to implement rules now (presumably, the terms of the last year of the expired labor deal, with some tweaks), and to allow teams to sign free agents, to cut players, to trade players, to launch their offseason programs, to communicate with players, and to otherwise transact business.
The lockout is enjoined. In other words, the lockout is over. The NFL engages in any behavior that conflicts with that reality at its own peril.
And the league should be concerned about more than contempt of court in the short term. Judge Nelson will continue to preside over the case, and she’ll continue to issue key rulings. If the NFL exhausts her patience at this threshold stage of the litigation, Judge Nelson could naturally be inclined to take a dim view of the league’s arguments and tactics moving forward.