One judge wasn’t happy with temporary stay

In a preview of the realities of appellate legal practice, the three judges who handled the league’s motion for a temporary stay of the lifting of the lockout pending consideration of the motion for a stay of the lifting of the lockout pending appeal did not agree that the NFL deserved a temporary stay.

Judge Kermit E. Bye opposed the decision of Judge Duane Benton and Judge Steven M. Colloton to allow the league to reinstate the lockout.  And Judge Bye said so via a seven-paragraph explanation, six paragraphs longer than the three-sentence order granting the temporary stay.

“In my tenure as an appellate judge, the only circumstances I can recall in which the power to grant a temporary stay has been invoked by a party, and exercised by our court, have been circumstances which truly qualify as emergencies,” Judge Bye wrote.  “For example, I have granted such a request on behalf of an immigrant who has filed a petition with our court to review a removal order entered by the Bureau of Immigration Appeals (BIA), when the immigrant’s removal date was imminent and the government had not yet responded to the immigrant’s request for a stay of removal pending our review of the petition. Another situation in which a temporary stay, pending review of a motion for a stay itself, may be appropriate is in a death penalty case where an execution date has been set and is imminent.”

Judge Bye then explained that, in his view, the predicament facing the NFL hardly constitutes an emergency.

He also didn’t buy the fact that the NFL wouldn’t be able to comply with the requirement of lifting the lockout while the Eighth Circuit considers the motion to stay the injunction pending appeal.

“[T]he initial reason the NFL requested such a temporary stay while we waited to hear from the Players, was to prevent the NFL from being forced to undertake post-injunction operations,” Judge Bye said.  “The NFL claimed such operations would be ‘a complex process that requires time to coordinate.’  This contention is severely undermined by the fact that the NFL had, within a day of the district court’s order denying a stay, already planned post-injunction operations which would allow the players to have access to club and workout facilities, receive playbooks, meet with coaches, and so forth.  Because I expect our court will be resolving the actual request for a stay in short order, I see little practical need for granting an emergency temporary stay in this non-emergency situation.”

In the end, Judge Bye’s beliefs didn’t matter, because two judges trump one on any three-judge panel.  With a pool of 16 judges on the Eighth Circuit, the ultimate question of whether the lockout will stand hinges on the arbitrary and random process of picking the three judges who will handle the review of Judge Nelson’s decision.

54 responses to “One judge wasn’t happy with temporary stay

  1. Yep and these Republican appointed fat guys are probably getting paid off so much under the table and off the record, who could blame them?

  2. I bet 2 judges in St. Louis got first round draft pick money.

    I bet they got the longest hugs from Goodell.

    Screw the NFL.

  3. Figures, this one liberal judge only felt it necessary to stay an illegal immigrant and a convicted murderer on death row. Obviously the other two judges disagreed with your liberal viewpoint, thank God. I hope these same judges decide the case for good and overturn judge nelson’s ruling permanently.

  4. Judges are nothing but high priced w**res. I am really saddened by the fact that they will be deciding an issue when they have probably never even seen a football game but somehow are enamored by the jocks and all. Just MHO.

  5. So by complying with the first judge, and not risking being in contempt of her court, they screwed themselves in the eyes of Judge Bye.

    Ha, Ha, the owner’s can’t catch a break!

    Let’s hope he’s NOT one of the Appeals Court Panel that hears the full case.


  6. Stop the presses: The two George W. Bush appointees sided with the old rich white guys. No wonder the NFL was salivating at the chance to get the case in front of this panel.

  7. For the sake of the game I do hope they put a limit on rookie’s salaries, and then set up some retirement fund for retired players. And while there at it, put all of the lawyers for both sides in a human blender and turn it to “crush”.

  8. and the billionaires come storming back to make it a game again,, its millionaires 8 billionaires 3….looks like the billionaires are playing dirty, lets see what happens next week.

  9. Ummm…. how about the fact that the NFL would have to try and set rules, ASAP, for player transactions, etc., without potentially creating evidence of supposed collusion that would support the NFLPA* in its antitrust suit–all in an effort to comply with Judge Nelson’s ruling. Nelson put the owners in an impossible, no win situation. If they set rules, they lose their eventual case because they provide evidence of collusion. If they have no rules, but nobody signs big $ contracts, also signs of collusion (whether legit or not) because expectation would be for big $ signings.

    If Nelson had said lockout was enjoined AND NFL is ordered to operate under 2010 rules until case was heard, then at least the NFLPA* would be prevented from using actions AFTER ruling as evidence against the owners–because operating under 2010 rules would be a court order, as opposed to an antitrust violation. Nelson put the owners in a situation, where the act of complying logically leads to implicit admission of player’s claims. She essentially decided the outcome of the case, without deciding on the merits of the lawsuit–simply on the merits of the lockout.

    Her decision was WRONG, imho. But even if it was NOT, there’s little harm than giving it a few more days.

  10. Anybody who thinks that any lawyers or judges in this case are perfectly impartial is cracked. Nelson, who ruled that the NFLPA no longer existed as an entity, despite their operating as one, included.

  11. Is this a surprise to anyone? Bipartisanship ruins america. This is just another example.

    Reps and Democrats are identical to Bloods and Crips, they have to represent their side no matter how stupid what they are defending is.

    I guess the if idea of democracy where you “vote for what you believe in” comes in second to “Vote for what your party says”

    in a Dream world we should abolish Polictical party’s and lets go crazy “vote based on your actual beliefs!”

  12. footballfan292, irrelevant. Brady and Manning want the right to negotiate for whatever they can get from whoever the can get it from no holds barred, and screw what happens to a beloved American institution that’s rapacious but relatively balanced, screw all the mid- and low-level payers, screw the fans of all but a few teams, screw it all. I will turn off the NFL if and when they win. You apparently want Dallas to be America’s team because there won’t be many others left. Try to think just a little bigger.

  13. Fantastic news- lockout is the fastest way to get the idiot players (or greedy bastards as I like to refer to them) back to the table.

  14. Bye’s objection could have been summed up in 1 sentence. “Mr. President, I’m very pro union so feel free to appoint me higher”.
    Thats the real reason, the rest is just BS. Doing a google search on “temporary stay issued” I get one result in Jan about a temporary stay in Alabama regarding a civil suite against Amy Bishop Anderson. Another result was a temporary stay issued in oct by the 9th circuit over dont ask dont tell. Neither of those are emergencies.

  15. No worries. The lockout will cost the league, networks and owners millions, players hold out on principal, and let them roll out some scab players and see half-filled stadiums.

    these things have to occur from decade to decade to get out the bad blood. Ultimately, the fans are going to stick it to the teams in 2012 when this finally gets done. Remember the blackouts, near blackouts in Jacksonville, San Diego, 0f course, Oakland, Tampa Bay? Imagine that over the entire league next year.

  16. “smacklayer says: Apr 30, 2011 12:57 AM

    Figures, this one liberal judge only felt it necessary to stay an illegal immigrant and a convicted murderer on death row. Obviously the other two judges disagreed with your liberal viewpoint, thank God. I hope these same judges decide the case for good and overturn judge nelson’s ruling permanently.”

    people like you make sick amazing a “fan” that wants a lockout this is not about dem vs rep get that through your f**king skull

  17. i say the owners or reps 4 owners got together &(somehow) got the (wink wink)$$$$$$$$$$$$$$ they neededand were able to get the decision they wanted.

  18. Since when did PFT become Political? Let’s be real, the bottom line is we ALL want to see NFL football back as usual in September. NONE OF US have anything to gain from either side winning a labor dispute, we can only lose from witnessing the NFL self destruct.

  19. This was a huge emergency, bigger than Katrina & Alabama tornado’s combined. Give me a break man.

  20. Speaking of irreperable harm, and someone will be able to tell me this I’m sure, what was the irreperable harm the players were suffering in Judge Nelson’s judgement. All, I remember from her judgement was that it was the public and fans that were being harmed but i don’t remember her saying much about the players in what was posted online.

    The players aren’t being any more irreperably harmed than the owners. All they’ve missed are some workouts and a few meetings with the coaches.

  21. I don’t think the court’s ruling is all that surprising even notwithstanding the conservative vs liberal biases people are suggesting. A lot of it turns on what exactly the group of owners were supposed to do under Judge Nelson’s decision. They were supposed to “end the lockout” and proceed with the season on the one hand (or else risk being in contempt as PFT suggested), but had no set of rules under which to proceed that would not be accused of being additional antitrust violations on the other. They were put in an untenable position, which is why Judge Nelson’s decision was thrown out. They couldn’t use the 2010 rules because without a collective bargaining agreement in place the players would allege that this was antitrust violations. Similarly they couldn’t unilaterally just make up a set of rules and expect the players to be happy. So they were somehow supposed to start signing free agents and start the season, without knowing if there would be a salary cap, without knowing if there would be a future CBA, without knowing the free agency rules, etc. And start paying out monies that might not even come due if the parties don’t come to an agreement.

    Basically they were being asked to spend money in a vacuum, without knowing the rules, and put themselves into a position that absolutely anything they did was going to get added into the ongoing Brady lawsuit. That was unreasonable, and provided the risk of harm the owners needed to demonstrate, and the majority of the appeals court thus granted the stay. A judge can’t tell you to just increase your liability risk in an ongoing suit under penalty of contempt, and that’s basically what Judge Nelson had done. The owners either would have to follow her ruling and end up even more liable or she could hold them into contempt as PFT was quick to suggest. So the owners appealed and the appellate court agreed.

    Doesn’t change much, but maybe this signals the players that the above court, where this case actually will get decided isn’t as hospitable as Nelson. And maybe this will be the impetus for the players to come to the table with a deal better for the sport than the no draft, no free agency, no rules system their lawyers seem to be flirting with.

  22. this is classic american jurisprudence. the one with the most money wins . two republicans again one democrat, yep the vote was just like our politics. the rich get richer and the rest can go to hell. i hate our system whatever happened to our country ? i wonder how much money the nfl had to put in someones campaign war chest to get this vote

  23. @footballfan292…yeah, cause those liberals have been just doing wonderful things for the working class in this country (yes that was sarcasm.)

  24. “This contention is severely undermined by the fact that the NFL had, within a day of the district court’s order denying a stay, already planned post-injunction operations which would allow the players to have access to club and workout facilities, receive playbooks, meet with coaches, and so forth.”
    How is it undermined? The NFL needed time to adjust the operations that would risk anti-trust suits. (Trading players, free agency limitations–tags–,etc.) None of the items the judge cited as the basis for his dissention could be challenged in a court case. Judge Nelson’s order forced the NFL to operate “business as usual” in an operating market that would open them up for future litigation because the operations were designed under a CBA. It is quite obvious that that should take a little time. Either the judge doesn’t understand the rationale or he is towing the idealistic line, because what he said is not germaine to the decision he has dissented from.

  25. Easier path:

    Extend previous CBA for a 1 season period, get back to negotiations or mediation. Get a god d*** deal done. We all go from mid level boners over the weekend to shrivelling inside like a belly button.

    Ridiculous! I now have football blue balls.

  26. I find it pathetic that people are turning this into a “Republican vs. Democrats” commentary. This is just a temporary stay while they review the case, not a final decision. The NFL has rights, just like any other business entity. Judge Nelson’s explanations were incredibly biased against the NFL in general and showcased her lack of objectivity. I don’t care who wins or loses, but the NFL has every right to seek a more friendly court. The players did when they pushed for the case to be in Nelson’s courtroom.

  27. Anyone complaining the ruling by the appellate court was based on politics, and the political views of the judges, needs to remember that the reason the players like federal court in Minnesota so much is for the exact same reason. Why do you think the players wanted that court? It’s funny how now it’s all about politics when liberals lose and, when the players/liberals win, it’s the correct decision. That’s the problem with the liberals, short and convenient memories. The real issue is whether the decertification was a sham. If you honestly believe it wasn’t, you have not been paying attention.

  28. It really doesn’t matter how long this drags out watching football is like any other habit nothing short of death will keep fans from coming back. Promising never ever to watch another game is only a temporary threat that will fade quickly.

  29. I’m a fan and I want the lockout.

    The only way a fair deal to both the owners and players is done is by both sides taking a hit to their wallet. Humble them a little and watch how quick both sides are a little more reasonable.

    People are so short sighted. They don’t care if it can destroy the league in the future as long as they get their fix now.

    No matter what, the players can’t win the the lawsuit. This needs to get done at a negotiating table with cool heads running the show.

  30. I agree with a few of the previous commenters. How the hell is the NFL supposed to begin its operations again without a set of rules that are not violating anti-trust? There is no CBA, so they can’t just “go back and use the 2010 rules”. Those rules were assuming there is a union, which there is not. Why? Because the PLAYERS dissolved the union.

    Personally, I would just say the hell with it and make there be no rules. Then the best players would make 95% of the money while the long snapper would make $20 an hour. But I’m just a football fan with a hot head who wants his fix.

    It is obvious that this judge was just posturing either for his political base or for the fans, but he doesn’t realize that we don’t want football until we make sure that the competitive balance that we have grown to love the last 20 years remains moving forward.

  31. rayjayjohnsonjr says: Apr 30, 2011 1:17 AM

    Judges are nothing but high priced w**res. I am really saddened by the fact that they will be deciding an issue when they have probably never even seen a football game but somehow are enamored by the jocks and all. Just MHO.

    Save the crying rayrayjojo,
    De Digit chose to litigate rather than negotiate.

    Which side turned their backs and walked from the negotiations? Which side De-Shammified? Which side filed suit named players that didn’t bother to show up for the trial? Can you dig it?

    Cry me a river rayrayjojo

  32. He is obviously the only one that didn’t cash the check that the NFL wrote to him. I wonder how much an appellate judge goes for these days?

  33. Seems like everyone commenting on this post is forgetting one thing. We are all fans of the NFL and have been for years…some more than others. We all have our favorite teams and we now follow every move the league makes 12 months a year. None of our teams can get better until this lockout is over whether a new deal is signed or not. Whatever the short term rules are for operating this offseason every team will be on equal footing. The ability to sign free agents, your own or others, make trades, extend contracts, release players, etc all are critical to giving YOUR team the best chance to win. In a perfect world everyone gets along and everything works out and it it is easy but that isn’t the case. Finally, for those of you who suggest that the league wouldn’t be able to operate under the 2010 rules if the lockout is lifted while the rulings were made think about it. It would be exactly like last year, everyone knew this would happen. Millions of dollars are being spent to plan legal strategies, contingency plans, etc. Nelson’s ruling didn’t force the owners to transact business, she told them to figure it out…and they can and will, it’s in their best interest. Bottom line, your team isn’t getting the help it needs to compete next year because a lockout is in place.

  34. F your competitive balance. This is a free market economy. The only reason those billionaires and millionaires are here is because of us. We are stupid enough to keep paying them to play a game while the rest of the country is going to hell in a hand basket. Oops. I said hell. This post will be deleted. Somebody may be get their feelings hurt.
    So keep whining about the lack of football while you pay $5.00 a gallon for gasoline. Way to prioritize. Idiots!!! In the end, the owners are going to win because in this country, CASH TALKS AND B.S. WALKS.

  35. The dissenting judge no doubt makes very valid points as long as he wasn’t insisting the teams also begin to sign and trade players.

    But that logic goes both ways to show the decertification of the PA is a complete sham based upon comments from the player reps. So the lockout would be okay in that setting and this decision supports that.

  36. Obviously at least one of the judges isn’t a fat, rich, Republican! These liberal jerks need to leave the country just like the example Bye used for his argument — send the non-English speaking immigrants back to whoever they came from. Learn to speak English (first) then do as our ancestors did. Get a job and contribute to society. It’s judges (and people) like Bye that’s ruining this country. Emergency? Not in his example.

  37. A few comments above are quite sensible in pointing out the reas0ns that the league couldn’t simply flip a switch and start operating again.

    But this is not about politics, it is about law. And the underlying reason for a stay of the injunction is simple: under the law, injunctive relief is an equitable remedy, and is never proper unless the allegedly injured party can show irreparable harm. But irreparable harm is not inconvenience or the idea that some party is unfair- it is by legal definition (the standard the, you know, judges and courts are supposed to use, laws and stuff like that) harm that could never be put right by writing a check for money:

    The one who is flagrantly in error here under the law is Nelson, in her original order, and that is why the 8th Circuit is looking at this. She is re-writing law in an obvious and high profile case that would set precedent, all because she, probably correctly, recognizes that Jerry Jones and others are evil, greedy, classless jerks out to screw everybody to line their own pockets. That fact can’t hide the reality that there is exactly zero harm here to anyone that can’t be set right by writing a check for money damages. Someone, please, explain to me one example here where money- which isn’t even due to players till this Fall, so the timing is also in gross error- won’t fix anyone’s problem? Every move by every party is driven by cold hard cash.

    The owners are determined to get jurisdiction here removed from Doty and Nelson, who are more interested in their views of social justice for working people than the law. This is a labor dispute- in every way imaginable. The players are acting more like a union than they did last year before they decertified. Did the owners plsay games with the TV contract to give themselves operating cash? Sure- and let them pay a penalty for that. That still doesn’t change the underlying law.

    There is no irreparable harm, period. The injunction is in gross legal error, period. And the lockout/strike should go on until the parties compromise on a new deal, or the players decide to go form their own league- which they have a perfect right to do if they truly are not a union- and compete with the current NFL.

  38. Only a biased entity (PFT) would have a headline “One judge wasn’t happy with temporary stay” because it ignores the FACT that the majority of justices voted for the temporary stay.

    Come on PFT, either stop being bias toward the players or just be honest and admit your bias. It really is OK to admit your bias and I would have a lot more respect for you if you did admit that you favor the players.

  39. This is all about politics. The two judges who voted for the temporary stay are Republicans appointed by President Bush. The judge who voted against it is a Democrat appointed by President Clinton. Coincidence? I think not. This is what the league had planned for all along. The league doesn’t want to play football except on it’s terms. This is one reason why the AFL and NFL should never have been allowed to merge. If these players had other options for employment, the NFL would knuckle under quickly to keep its good players. And fans would just follow the players. The owners forget that fans watch players, not owners.

  40. The number of retarded comments and misinformed opinions on here about the law from people who apparently get their fill of legal information from watching Judge Judy is astounding.

  41. edreedforprez, rather than make such comments, why don’t you say something substantive about the applicable law?

    The labor law v. antitrust situation is complex. The injunction issue is not- it is first year remedies class.

  42. “If these players had other options for employment, the NFL would knuckle under quickly to keep its good players.”
    The players DO have other options for employment! The CFL, UFL, and Arena League are all going concerns. Any NFL player, and I mean ANY player, could immediately get a position in one of these other leagues, and continue on in their chosen profession.

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