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Lockout And Legalese: NFL Files Appeal Brief, NHL Sides With Owners

Now that the draft is over, we have nothing to focus our attention on besides two parties embroiled in a legal battle that is still threatening my Football Sundays.
Now that the draft is over, we have nothing to focus our attention on besides two parties embroiled in a legal battle that is still threatening my Football Sundays.

I don't speak legalese, but I'm mired in a swamp of it. I'd imagine that's how many sports fans are feeling right now.

We remain engaged, now that the draft is behind us, with nothing but lockout litigation happening in the NFL at the moment. We've dipped our toes into the fluid legal landscape, when we'd much rather be knee-deep in rookie-mini camps and OTA's by now. Instead, we are awash in legal jargon and appeal processing, with many fans already feeling like they are up to their necks in it while waiting on the U.S. governing body to tell us which direction we are going.

Last night, the NFL filed it's brief, a 74 page report that outlines how an injunction without a collective bargaining agreement causes irreparable harm to the league. In essence the league said that Judge Nelson ruled without considering the  harm the injunction would place on the league; that Nelson didn't have the right to rule before the National Labor Relations Board (NLRB) rules on the decertification of the NFLPA.

From the AP:

The arguments in the filing were an expanded version of what the league has claimed all along: that the union's move to decertify after the initial bargaining talks broke down is a sham; that Nelson does not have the jurisdiction to lift the lockout; and, that she should have waited for a decision from the National Labor Relations Board before issuing that ruling.


Follow the jump for much more.


We expected to hear the appellate courts permanent ruling on the stay request filed by the NFL, in reaction to Judge Susan Nelson's granting of the lockout injunction. Teams and players basically had a two-day window at the start of the draft that allowed for communication between parties. The temporary stay by the 8th Circuit Court of Appeals was supposed to be followed a permanent ruling sometime last week. Last week came and went, with no word from the court. NFL Network's Albert Breer seems to receive constant communication with a clerk of the court, Michael Gans, and tweeted that the court may just simply be granting the stay by their inaction, letting the temporary one remain in effect until the NFL's appeal is heard over the next month.

This (non)act is pretty infuriating for us non-legal types. I am at a loss to explain how exactly this is proper form, to not rule on something where indecision helps the side filing (owners) and hurts the defendants (in this situation, the players).  This is separate from which side I believe is right here, I just find it strange that they won't decide on the issue. That's why they are judges, correct?

Judy Batista of the NY Times tweeted that no ruling should be expected because Monday was a travel day for the three appellate judges to go to other cities. You have to love the system. Why even call the temporary stay, temporary?

Highlights from the brief:

The league also said that lifting the lockout without a labor deal in place would cause chaos, with teams trying to make decisions on signing free agents and making trades under a set of rules that could drastically change under a new agreement.

"It would be difficult, if not impossible, to unscramble the eggs and return those players to clubs that otherwise may have had contract arrangements with (or, at least, a greater ability to enter into contracts with) such players in the absence of an injunction," the league's court brief said.

This Court should vacate the District Court’s grant of a preliminary injunction & remand with instructions to dismiss or stay the action."'s Albert Breer

In contesting the players claim that the lockout causes irreparable harm on them:

But the NFL said Monday that the judge ''failed entirely to consider the serious, immediate and irreparable harm the injunction posed to the NFL'' and ''vastly overstated both the harm to the (players) and the nature of that harm.'' ''Because there are no practices or other organized football activities conducted during a lockout, no player suffers a risk of career-threatening injury or physical wear and tear,''

-- AP

Let's play devil's advocate on this one. Aren't the owners basically saying, again, "we can't control ourselves unless someone makes us"? Why are the owner's acting as if they can't just create a set of rules like they did way back in... I don't know... 2010? How does the game suffer irreparable harm if all of the owners are playing under the same rules, whatever they are?

Well, the league claims publicly that they haven't yet established a set of rules to operate under if the lockout is lifted.

"Our goal has at all times been the same -- to operate under a negotiated set of procedures that are agreed to by the clubs and the NFLPA," league spokesman Greg Aiello said in a statement. "The current litigation has created a significant amount of uncertainty, and we are therefore considering a wide range of alternatives depending on developments."

So it seems that the NFL tells the judges that the injunction isn't fair because they have no way to control player movement, yet make a public statement  that they have a wide range of alternative plans for operations?

Let's quickly recap the schedule for the appeal process.

-- NFL Appeals brief due to the court May 9th

-- Players response to brief due May 20th

-- NFL's reply to players reply due May 26th

Gabe Feldman, Director of Tulane's Sports Law program, tweeted the following yesterday.

NFL has tricky balance if implements rules--too restrictive violates antitrust law, not restrictive enough sets baseline for bargainingvia TweetCaster Favorite Retweet Reply


In an interesting twist, the NHL has legally chimed in on the matter.

From Pro Football Weekly:

The National Hockey League has filed an amicus brief to the Eighth Circuit Court of Appeals in support of the NFL in its dispute with the NFL players assocation. In the brief, the NHL states that all American professional sports leagues will be impacted by the ruling in the NFL's labor dispute and that a union decertifying should not be a valid negotiating tactic.

The NHL states in the brief that, "The NHL has a direct interest in ensuring that the determination of terms and conditions of employment for NHL players is the product of a bona fide labor process rather than the "lever" of potential antitrust liability."


In addition to the  appeal brief filing from yesterday, the government is convening their judicial branch for another NFL matter. On March 1st, Judge David Doty ruled that the television deal made between the NFL and the networks was, in essence, lockout insurance for the league's 32 owners. On Thursday, he will conduct a hearing of what exactly happens to that lockout money.The players feel that this insurance basically gave the owners the strength to earn revenue while none of it's employees or beneficiaries are considered.

The players' brief on the matter claims the following:

"Defendants’ (owners) SSA violations were aimed at funding a lockout which has far-reaching negative repercussions on the public, which includes fans, stadium workers, municipalities and local businesses."

The NFL responded by saying that any harm as a result of the contracts "was not directed at the public generally." Without having all the in's and out's of the proceedings (this is my caveat people) I'd say that is a pretty weak argument. I mean, I didn't mean to kill my neighbor's grass when I was spraying pesticides on my lawn... I don't think I should pay to re-sod his turf.

Via twitter, here's Albert Breer's take on what could happen with the lockout money.


@AlbertBreer Is it within the realm of reasonable possibility that Judge Doty awards part of the 'lockout insurance' to the NFLPA?less than a minute ago via web Favorite Retweet Reply


@KDP10for10 Thx for saying that. And yes, it is. Money could go into escrow, or be divided b/w parties according to previous revenue split.less than a minute ago via web Favorite Retweet Reply


Stay tuned, and stay dry.

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