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.