On appeal, first fight will focus on “standard of review”


When the ruling lifting the lockout lands on the desk of the judges of the U.S. Court of Appeals for the 8th Circuit, the first task will be to determine the deference, if any, that Judge Susan Nelson’s decision should receive.

It’s safe to say the two sides won’t agree.  Generally speaking, the question of whether a motion for preliminary injunction will be granted or denied can be overturned on appeal if the judge’s ruling amounts to an “abuse of discretion.”  In other words, it’s not enough to disagree with the judge.  The appeals court must conclude that the judge went beyond the range of reasonable outcomes that the law and the facts would support.

As NFL lead counsel David Boies told PFT Live on Tuesday, the league believes that legal questions regarding the validity of the decertification of the union and the ability of the federal courts to prevent a lockout will be reviewed from scratch, essentially giving the league a fresh bite at the apple.  The players will presumably argue that nothing should be reviewed from scratch, given that Judge Nelson has issued no ruling (yet) on the merits.  Instead, Judge Nelson decided to block the lockout based on a finding that the players will suffer irreparable harm and on a conclusion that the players have a “fair chance” of winning on the merits of the case.

It’s a topic that sports lawyer David Cornwell and yours truly will discuss on today’s PFT Live.  Eventually, it’s an issue for the appeals court to resolve — and it could go a long way toward determining whether or not the lockout is lifted.

13 responses to “On appeal, first fight will focus on “standard of review”

  1. I think the standard of review depends upon the issue being appealed. If the league appeals the judge’s decision to enjoin the lockout (will there be irreparable harm, how will the public interest be harmed, etc.), the standard may be abuse of discretion. If the league is challenging the court’s jurisdiction to enter any injunction, that would probably be a de novo review (from scratch).

  2. Having several Standards of Review is a fancy legal trick used by appellate judges to allow them to back into the outcome they want in a particular case. If the panel wants to rule for the NFL they will choose a de novo review (fresh bite); if not it will be an abuse of discretion standard.

  3. I have to admit that I would love to see what kind of mad scramble would happen if the court forced the league to open its next season today. Can you imagine how frantically people would be trying to sign Namdi, or to get Hasselbeck or McNabb, so that they could answer their immediate team needs and restructure their draft boards? I can’t even imagine what the front offices of the clubs would look like. Of course, they may all agree to do nothing, but I just can’t imagine that would happen.

    I hate that there’s a lockout, and I might not agree with the results of the court ending the lockout, but I really think it would make for an exciting few days.

  4. To make a bad situation even worse, us fans have to try and decipher legal bullcrap on a daily basis.

    I’m sure everything will be alright, considering lawyers have taken over.

  5. C’mon, David, this isn’t just Fat Albert you’re defending here. This is really important.

  6. I just want to know one thing? if the owners keep losing and the players get everything they want, can the owners reorganize the NFL, or shut the doors and reopen under the NAFL, or NFL Inc.? And if they did that would football be shut down even longer?

  7. Canuck,

    I hope the owners do shut it down, if that is what it will take to stop this farce the union has brought about.

    There is no way the league can function succesfully without the draft, salary cap and FA as we know it today.

    Then they can start all over, as one unit with 32 (divisoions) and all the union shams will be gone forever.

    Even if it takes a year, so be it.

  8. First I also hope that the courts force the league year to start today, draft would become better.

    Second as I understand it the initial appeal on the enjoined lockout will be only on Nelson’s use of legal reasoning. The NFL shouldn’t get a fresh look unless the conservative 8th circuit goes activists on us. They will get a full review when entire case is appealed

  9. There will be multiple standards of review applied. To me the critical issue is whether the union’s decertification was effective and done in good faith. These are factual issues which the Judge received evidence on in the form of competing affidavits and other matters of record, including prior litigation involving the league and the players/union. Judge Nelson’s opinion details numerous factual findings that she based her finding that the decertification was both effective and done in good faith.
    Mr. Boies deftly avoided this yesterday and focused on whether federal law prohibits the court from enjoining a lockout in the context of a “labor dispute”. The league asserts that there is a labor dispute because the decertification was ineffective or federal law extends the anti-trust exemption for some period of time after expiration of a CBA. Judge Nelson essentially ruled that, based on her factual finding that the union decertified, no “labor dispute” can exist under federal labor law because there is no longer a union, therefore the anti-trust exemption does not protect the league in imposing a lockout. This specific issue will be reviewed “de novo” by the appellate court, however, the court will review the application of the law to the facts as determined by Judge Nelson.

    The question of irreparable harm is also a fact-based determination, and the abuse of discretion will be applied to her findings that the players stand to suffer such harm and the harm suffered by the league if the lockout is lifted is outweighed by the harm to the players and the public interest.

    I also believe that Judge Nelson fully understood what she was doing when the simply stated the that the lockout is enjoined without further guidance. The NFL is responsible for setting their league rules. Because they no longer enjoy the labor exemption form anti-trust law, they must set the rules in accordance with anti-trust law. Everything they do now is subject to anti-trust scrutiny and they have a team of anti-trust lawyers to guide them. I think the Giants fully realized this point when they decided to let players workout at the team facility. Basically, Judge Nelson said, without saying, to the NFL that it is entirely up to the league to decide how to proceed because they are in the best position to know how to operate a 32 team profession football league and they do not need her advice. If the league’s actions violate federal law, then that will be determined by a court on a case by case basis. In reality, by requiring the league to act without the protection of a collectively bargained labor contract, she is increasing the likelihood that a contract will get done sooner than later.

  10. Mike, I know that you are on the players’ side, but stop spinning.

    You know that appeals courts cannot, as a general rule, “retry” facts, but appeals courts do review the application of law.

    If the judge did not apply the law, then the judge’s order will be overturned. The standard is not abuse of discretion, but did she apply the law.

  11. I’m still trying to figure out how you can take an equitable remedy and apply “irreparable harm” to a situation where the issue is 100% about money. By definition, there is a legal remedy- there is no harm to a player that cannot be rectified by writing a check.

    I think Nelson knew what she wanted to do, and backed into her decision. Based on the weakness of the irreparable harm finding, she is doing cartwheels on a platform supported by three 12 foot dandelion stalks.

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