The same judges will handle the motion for a stay

While hunting-and-pecking our recent item regarding the possibility that the lockout, which returned on Friday, could once again be lifted, I paused to send an e-mail to Michael Gans, Clerk of the U.S. Court of Appeals for the Eighth Circuit, with multiple questions regarding the case of Tom Brady et al. v. National Football League et al.  It was well before 8:00 a.m. CT, and I didn’t expect to hear back from him before Monday afternoon.

He responded within minutes.

Most importantly in the short term, Gans said that the same three judges who handled the NFL’s motion for a temporary stay will handle the motion for a full stay until the appeal is resolved.  It’ll be the next test of the red-state/blue-state notion that judges appointed by a Republican president will side with business interests, and that judges appointed by a Democratic president will side with labor interests.  Indeed, Judge Kermit Bye’s dissenting opinion on Friday made clear his belief that the NFL had failed to satisfy the standard for securing a stay pending resolution of the appeal.  It’s safe to say he will vote against a stay; the question is whether one of the other two judges will agree with him.

There’s also a chance that the same three judges will handle the full review of Judge Nelson’s order lifting the lockout.  “Under the court’s internal procedures, a motions panel may keep a case for the final decision if it has done a substantial amount of work on the case and determines reassignment would not be an efficient use of judicial resources,” Gans said.  “No decision has been made at this time as to whether the current motions panel will keep the case.”

Either way, we should know soon.  Though some other federal circuits keep the identity of the panel under wraps (in the Fourth Circuit, for example, the judges aren’t known to the parties until the lawyers show up at the courthouse on the morning of the oral argument), the Eighth Circuit doesn’t.

“[W]e will announce the panel well in advance of the argument,” Gans said.  “While many circuits keep this information internal until the week or day of the argument, it is our practice to announce the information about thirty days in advance.  I believe this same practice will be followed in this case.”

As a result, the media will have a chance to sift through the past opinions of the three judges assigned to the case in search of any clues regarding their eventual votes on a decision that will either end the lockout or extend it indefinitely — subject to an appeal to the full panel of judges, which the full panel of judges may or may not decide to grant.

Bottom line?  The league will continue to reside squarely within a haze of uncertainty over the next month.  Even though mediation is scheduled to re-convene on May 16, we can’t imagine either side being any more prepared to work out a deal in two weeks, given that each side surely believes that, once the dust settles, it will win in the Eighth Circuit.

12 responses to “The same judges will handle the motion for a stay

  1. 13 days since an arrest…well that should be reset any day now…the wait begins….

  2. A motion to “stay” was made, but since many of the players have yet to learn to scratch at the door to be let out to “do their business” or stop climbing up on the couch, it will likely have litte effect.

  3. A month in advance… meaning that the ball won’t even get rolling until a month after this information is even announced… fantastic.

  4. Wow Mike! How come you didn’t dissect the decisions and political ties of the previous judge that ruled in favor of the players? Seems like biased reporting to me, but I don’t think it’s the first time of allowing your liberal emotions to reflect in your posts. I do hope they lift the stay so NFL business can continue while they take the next few months to listen to the arguments and finally make a ruling on the appeal. I think that would satisfy the fans (temporarily) while the 2 sides go at it in court.

  5. The UFL provides the UDFA an option for employment to play football on a professional as does the CFL. It may not carry the same cache or paycheck that playing in the NFL does however does this constitute irreparable harm?.?.?

    Get back to the table and hammer out a deal – that is the key!

    Not whether an UDFA can sign with an NFL club, or can the Eagles trade Kolb, or player X can sign club Y.

    We would all like to see the business of football begin however it is important that all parties understand the system that will be in place and further important elements of the system will not be challenged in court (hello, Mr. Kessler).

    Get back to the table and hammer out a new CBA!

  6. Hey, it’s the 8th Circuit Court Of Corporate Lapdogs to the rescue of the billionaire mommy’s boys.

  7. olcap says:May 2, 2011 12:31 PM

    Hey, it’s the 8th Circuit Court Of Corporate Lapdogs to the rescue of the billionaire mommy’s boys.

    Seems like just yesterday the player supporters where praising the justice system and saying the law is the law. It doesn’t feel so good right now does it?

    The owners may still lose this, I understand that but it’s not nearly the slam dunk that the player supporters and PFT would have you believe.

    I’d also like to point out to the people who think that one court should always rule the same as another court that there is a reason the players filed in Minnesota.

  8. Good, only one of the three are a liberal. The other two will likely keep the majority option.

  9. thefiesty1 says:May 2, 2011 1:53 PM

    Good, only one of the three are a liberal. The other two will likely keep the majority option.

    I’m going to take the unusual position here of saying that it’s not a slam dunk that the one dissenting judge will rule against the permanent stay. I may just be overly optimistic but i think his problem was specifically with the emergency stay only.

    We’ll know soon enough.

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