Loophole in Eighth Circuit ruling should discourage owners from dropping the hammer

We’ve already summarized the practical impact of the surprise move but the U.S. Court of Appeals for the Eighth Circuit to rule that the lockout may continue while the NFL and the players are supposedly very close to resolving it.  Basically, the ruling changes nothing.

The league may continue to lock out the players, and the players may continue to pursue a $12 billion verdict for violation of the antitrust laws.

But there’s an intriguing loophole that, absent a resolution, could make things very complication for the league.

At pages 33 and 34 of the ruling the Eighth Circuit suggests that Judge Nelson could impose an injunction as it relates to players not under contract (i.e., free agents and rookies).  To do so, however, Judge Nelson must conduct a hearing at which testimony and other evidence is introduced.  This could lead to a ruling that would require the NFL to negotiate with and sign free agents and rookies, despite the existence of the lockout.

This process would unfold over a period of weeks, and it would make a messy situation even messier.  As a practical matter, the prospect of a convoluted and costly court proceeding should be enough to dissuade the owners from trying to drop the hammer on the players in the wake of Friday’s ruling.

43 responses to “Loophole in Eighth Circuit ruling should discourage owners from dropping the hammer

  1. As long as this doesn’t slow things down, this is probably a good ruling. It puts pressure on the players to get it done and not wait until some of the preseason is lost, and the owners already had pressure because they don’t want to lose the preseason.

  2. its about time the league and players quit dicking around and just get the damn deal done. this bs of taking a few days off every week is absolutely ridiculous

  3. You know I love football and the NFL, but there is just part of me that has gotten to a point where I look at the big picture of life and see that these people are arguing over massive amounts of money to play a sport, while I work my regular 8-4 job…. I almost want to see these greedy fools suffer the losses that would result from no football being played… Sorry everyone, I know I will get a lot of thumbs down for this one…

  4. Why hasn’t tthe fans of football created a website for all to sign up and show both the owners and the players that it is the fans who pay the bills?

    We as fans need to get loud and public, let both sides know what they are in jeopardy of losing. I guarantee you that if the fans came together and said that for every day that a deal is not struck and the lock-out lifted, that is a week of football ticket sales that will be lost, that a deal would be struck in no time.

    I am the biggest fan of the NFL, love football with all my soul. It is clear that both sides need some motivating. Let us, THE FANS, show them that they need us more than each other!

  5. Are any of you closer to finally agreeing with me and what I said two years ago?…believe this, no NFL in 2011…some have posted on my blog that will I come correct and say I was wrong if there is football this year, I of course will, and only wish I could, because I go to all games, have season tickets,…but the sad truth is there are enough owners that under no condition will allow football in 2011,…there are enough owners who have planned for this for two years and theres no deal they will agree on,..alot of owners will vote for one, but not enough,…hang in there fans.

  6. Why don’t you just call this NFLTalk because when it comes down to it that’s what you talk about which means you have a vested interest in this also?

    This ruling doesn’t give the owners a hammer because who has a hammer in negotiations and doesn’t use it? Judge Doty’s ruling is still to be heard and there is no true defense for the Brady v NFL suit.

    This isn’t a strike, it’s a lockout. You need the players back more than anybody. There’s the Arena league and there’s the UFL. That’s pro football, right? Except…they don’t have the best players do they? So, nobody watches and nobody cares. So, what’s to write about them?

    The hammer is over both sides because real revenue is about to be lost. If you don’t like NFL players go cover the Women’s World Cup. Stop taking sides, it makes you look incompetent.

  7. Actually all the league would do is appeal Judge Nelsons ruling to the Eight Circuit and get it reversed. Simple. smh.

  8. It should be apparent to anyone paying close attention that the eighth circuit judges’ intention is to mess up the process because they are jealous that mediator/judge Boylan gets to go on vacation tomorrow.

  9. No corporate entity need fear the 8th Circuit Court of Corporate Lapdogs!

    On another note, the level of proofreading your writings is obviously at zero:

    “But there’s an intriguing loophole that, absent a resolution, could make things very complication for the league.”

  10. This could have been an interesting post, but I hate reading this stuff when there are errors all over the place. Please, can you proofread your work before submitting it? It comes off as unprofessional and rushed, NOT interesting. Also, don’t you need some sort of citation or recognition of the trademark or copyright for the image of Mario?

  11. “Can we just have some football please. Enough already.”

    Were they going to kickoff in July this season or still wait until Sept?

    You are not missing any football. Save the belly aching for when something is actually lost.

  12. The owners don’t even want the lockout anymore…they can’t stand the thought of losing 1 cent of preseason rev.

    The lockout was so stupid…the owners never intended to enforce it into the preseason and the players don’t draw checks until Week 1, so how was it going to be effective…wtf?

    At any rate, I’m glad. I would expect a deal announcement on Monday and free agency to start next week. Can’t wait…Niners better get some!

  13. This could lead to a ruling that would require the NFL to negotiate with and sign free agents and rookies, despite the existence of the lockout.


    I’m sure Judge Nelson is anxious to make another embarrassing ruling that would have a good chance to get overturned.

    I think you are most likely reading to much into this looking for anything positive for the players.

  14. surprisingly not one pro owner story yet…..I would love to see the owners drop the hammer as they should….lets see how long the players take before they realize, they are jeopardizing being paid at all.

  15. I am VERY pleased that the United States Court of Appeals for the Eighth Circuit has issued its ruling vacating the district court’s order granting the preliminary injunction. I think the majority’s well-reasoned opinion, which I read, is both persuasive and compelling. Importantly, I think it provides needed case law on the question of whether the district court had jurisdiction under the Norris-LaGuardia Act to enjoin the League’s lockout.

    Contrary to the fears of some, this ruling will have no adverse impact on a timely settlement of this labor dispute, which I hope and expect will occur next week.

  16. Given….1. that both sides thought much more leverage would have existed, and been played, at this stage of the dispute and 2. All of the Judges have expressed the need to negotiate versus litigate [ endorsed by the 5 week delay in this last ruling] and 3. the apparent closeness to an agreement that is now suppose to exist,…I think Judge Nelson would NOT consider the imposition of an injuntion, that could derail the state of currrent negotiations. I look for another, “wait and lets see what happens in negotiations” stratedgy by the court.As far as the players go, if they want to litigate through the antitrust exemption status for a treble damage award….they will have to forfeit the season.

  17. That picture of Mario was all it took, and now I have the Super Mario Bros. theme stuck in my head and it probably won’t leave until mid-August.

    Thanks, bros.

  18. The need for Nelson to hold a hearing and rule on free agents and rookies, the continuing anti-trust litigation, and the fact the lock-out will continue to stand, and the looming loss of hundreds of millions of preseason revenue…

    All the more reason for both sides to keep working at the negotiations today.

  19. elwaysbrady–fans don’t pay the players’ and owners’ bills any more than Wal-Mart shoppers pay a cashier’s bills. Fans are customers, not benefactors.

  20. They should drop the hammer and try to save next season. This one is shot anyway.

  21. @airraid77

    Haven’t you figured out yet that the lockout was a sham? The owners can’t stand the thought of losing even 1 cent of preseason rev; they never intended to enforce it into the season. The owners blinked first and now they are settling their squabble over $150 million as quickly as they can, because they start losing preseason rev at $250 million per week very quickly.

    Sorry that you don’t get your lockout hammer bro, but the rest of us that actually watch and like football will have a real season and I’m fired up about it; I might even be dumb enough to buy season tickets. Go Niners!

  22. I only hope the owners are aware of this loophole and don’t let their arrogance get the better of them- isn’t the supposed drop dead date the week of July 10? I can only hope the desmith rhetoric about the sides being far apart is just hot air and smoke and in reality a deal is close to being done and is finished up by the beginning of next week-
    Get a deal done men! This is now far beyond ridiculous- it’s comical , reading about owners agreeing on a deal and then at the last moment changing the words and refusing to honor what was agreed upon- this then turns into players name calling owners , calling them shady etc etc etc … A never ending cycle- Goodell needs to put his foot down with the owners and desmith must control his lawyers and let them know who the boss is-Do it now for the sake of all that is grand in this sport we all love..

  23. Not to worry.

    There is still plenty of time to end this labor dispute before the vacation of some mediator.

    Things are looking up.

    The Finger hasn’t said anything, which means it must be good news and a deal is close!

    Can’t wait for kickoff!!

    Hint: (Sarcasm. Big Time !)

  24. Kaz says: Jul 8, 2011 11:30 AM

    Actually all the league would do is appeal Judge Nelsons ruling to the Eight Circuit and get it reversed. Simple. smh.
    No, not so simple. The court has said that because there were labor issues before the decertification, the Norris-LaGuardia Act is in effect. That means the court can’t force them to end the lockout. The went on to say that rookies and FAs, on the other hand, were not employed by the NFL, and as such were not a part of the existing labor issues. That, in turn, means that they can’t be locked out. So, if Judge Nelson has another hearing and issues a ruling specific to rookies and FAs, the teams could be forced to start signing them without knowing exactly what the new CBA will look like (and even worse, w/out a new rookie scale in place). Refusing to do so would bring about collusion charges that there would be no defense for. Furthermore, the appeals court refused to issue an opinion about whether the labor exemption continues to exist after decertification (which the court never challenged), or if it does for how long. So, the owners can’t be forced to end the lockout, but they can be held liable for it in an anti-trust case. That decision, could of course again be appealed, and considering the appeals court’s refusal to discuss the issue who knows what would happen there. Making the issue even more complicated, the lawsuit isn’t a union (or even trade association) action. It’s a lawsuit with a small number of named plaintiffs. So, even if other players cracked under the lack of income, all it would take would be for the plaintiffs to continue the case to ruin the owners day (and the vast majority of named plaintiffs are financially secure). No, the easiest and best solution is for the owners and players to continue doing what they’re doing and get this deal done. If the negotiations were to fall apart, simple is the last thing this situation will be.

  25. @ airraid

    I have been a staunch owner supporter and have constantly pointed out this websites bias. That being said, if they do drop the hammer, there will be no season. They need to ignore this and build off of recent progress.

  26. But there’s an intriguing loophole that, absent a resolution, could make things very complication for the league.

    when things get VERY COMPLICATION, I start to drink!

  27. burntorangehorn- If people stopped shopping at Wal-Mart, would the doors stay open? The point I was making is that the consumer controls everything, which in turn, makes them the boss. I dont think it is fair for people with incomes of 25K to 80K a year and spend there money for the game that they love should have to put up with the bickering of millionare’s and billionare’s when there is something that they can do about it.

  28. nineroutsider,
    I would bet a case the worlds deadliest disease to the loser that I know more footballl, and have forgotten more football than you will ever have any idea about….and that if we ever met? that would take 5 minutes to establish that fact.
    Actually its the lawsuits that the players filed that are the sham…the decertification which was illegal by their own admission when they signed the last cba….the owners are goingto anywhere from 12 to 15 pct back…..can you do the math? that is 1.08 to 1.35 billion dollars back from the players……..still have the hard cap.
    What you liberals fail to understand about the owners is that it doesnt matter how much the players get….because it all gets spent on players anyways….but then again I am talking to a communist…..so why waste my breath, comrade.

  29. A perverse ruling.

    Seemingly would allow IBM, Apple, Microsoft & HP to gang together to lockout all of their programmers to force them to take a pay cut. Regardless of whether they belong to unions.

    Would allow Ford, GM, Chrysler, Toyota, Honda to lockout all car workers to force them to lower pay.

    Would allow any gang of businesses in any industry to lock out employess in a way that would prevent those employees from getting a job in another company.

    And would not allow the workers in either of these examples to request protection from the courts.

    The players should appeal this odd decision to the Supreme Court.

    The case is there to be made that the consititutional freedoms of the players are being overridden.

  30. NFLPA lawyer Jeff Kessler now has his chance to blow up the draft and see his dream come true. If he can get Judge Nelson to enjoin the lockout for rookies and free agents, he can argue that the draft violates antitrust law and all rookies will become free agents able to sign with the team of their choice.

    Von Miller just went to the head of the line in the Brady lawsuit.

  31. @gdpont

    Is the draft the only thing that would have to go if the league were to run without an anti-trust exemption?

    I mean the only thing the fans give a rats azz about?

    If so, it would be an acceptable loss to avoid future lockouts & endless CBA negotiation.

  32. The problem with that is that the Draft this year was specifically guarranteed under the terms of the expired CBA. Thus it was not in anyway a violation of anti-trust.

  33. @billinlouisiana

    You raise an important fact that could complicate any attempt by Kessler to annul this year’s draft.

    The ultimate question will be whether a decertified union that has never represented the rookies has or ever had the legal authority to force the rookies to abide the restrictions on their personal and economic interests that the draft imposes on them. In the absence of a new CBA and a player’s union, I think there is a strong argument that requiring rookies to play for the team that drafted them, or not play at all, would violate antitrust laws.

  34. realfann says:
    A perverse ruling.

    Seemingly would allow IBM, Apple, Microsoft & HP to gang together to lockout all of their programmers to force them to take a pay cut. Regardless of whether they belong to unions.

    No treu. There is still arena football, the UFL and the CFL up here in Canada. If the players think they are being treated like “slaves” in the NFL, they are free to peddle their talents at any of the other leagues that might want to employ them – just like the rest of us do in the real world.

    Additionally, it is absurd to think that the NFL is forcing anyone to take a “pay cut”. The salary cap will continue to increase along with league revenues, albeit at a slower rate than we have seen in previous years. A new CBA with “less” going to the players isn’t going to force everyone to renegotiate their current contract. It will mean that when renegotiation does happen, they may not get quite the exorbitant increases they may think they deserve. As such, they are free to execise point one above and seek employment somewhere else – just like the rest of us.

    BTW: I have completely forgotten about the lockout since the CFL has got underway. I am starting to think about buying season tickets for the Argos next season. This whole lockout/decertification is leaving a bad taste in my mouth. Besides, I am still enjoying football. Go Argos!

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