Judge Blows the Whistle on NFL|Lockout, Won’t Wait for NLRB

     MINNEAPOLIS (CN) – Tom Brady and other active NFL players won an injunction Monday against the lockout by the league and its 32 team owners. The team owners immediately filed a request for a stay pending appeal to the 8th Circuit.




     U.S. District Judge Susan Nelson’s 89-page ruling describes the “long and complex” antitrust dispute that dates back about 35 years, leading up to today’s multibillion-dollar dispute over TV revenue.
     Nelson noted that the relatively short careers of most NFL players means that a lockout canceling the 2011 season would cause irreparable harm.
     “The downside of staying the action plainly outweighs whatever value this Court might derive from an NLRB decision – assuming the General Counsel will in fact proceed to file a Complaint rather than dismiss the League’s charge – where the ensuing delay would simply exacerbate the irreparable harm the Players are incurring every day the so-called ‘lockout’ continues,” Nelson wrote.
     Regardless of whether Nelson agrees to issue a stay, the owners said they will appeal to the 8th Circuit, and request an expedited hearing.
     The 8th Circuit is considered extremely favorable to management.
     In their memorandum in support of an expedited appeal, the owners essentially recapitulated the key arguments they made that failed to persuade Judge Nelson.
     Primarily, the owners argued that the NFL Players Association, or union, dissolved purely as a tactical move, to make the fight an antitrust issue, rather than a labor dispute, which should be handled by the National Labor Relations Board.
     The NFL and team owners claimed that therefore, Judge Nelson had no jurisdiction.
     Judge Nelson rejected that argument, and found that the players union had dissolved.
     In their legal memorandum in request for an expedited appeal, the owners wrote: “failing to stay the injunction – even for the brief period of time until it is taken up on appeal – would irreparably harm the NFL. The clubs would be forced to choose between the irreparable harm of unrestricted free agency or the irreparable harm of more treble-damages lawsuits, and the League would face those harms immediately, even if the preliminary injunction were in place only for a few days. Finally, granting the stay will serve the public interest by ensuring an opportunity for appellate review before there are fundamental and irreversible changes in the relationships between and among the parties.”
     In her ruling, however, Nelson pointed out that plaintiff-free agents, such as Peyton Manning, cannot negotiate new contracts during the lockout. And she ruled that the public interest – that is, the millions of pro football fans – does not support a lockout.
     In fact, the headline for Section 4 of Nelson’s legal analysis is “The Public Interest Does Not Favor The ‘Lockout.'”
     Nelson wrote: “On an economic level, the public has an interest in the enforcement of the Sherman Act, which, by seeking to ensure healthy competition in the market, has a broad impact beyond the immediate parties to this dispute. Moreover, the public ramifications of this dispute exceed the abstract principles of the antitrust laws, as professional football involves many layers of tangible economic impact, ranging from broadcast revenues down to concessions sales. And, of course, the public interest represented by the fans of professional football – who have a strong investment in the 2011 season – is an intangible interest that weighs against the lockout. In short, this particular employment dispute is far from a purely private argument over compensation.
     “The Brady Plaintiffs have made a strong showing that allowing the League to continue their ‘lockout’ is presently inflicting, and will continue to inflict, irreparable harm upon them, particularly when weighed against the lack of any real injury that would be imposed on the NFL by issuing the preliminary injunction. The public interest favors the enforcement of the antitrust laws and their underlying pro-competition policy, and the countervailing labor-law policy favoring collective bargaining is no longer implicated here. Finally, the Brady Plaintiff’s ‘fair chance of success’ on the merits of the lockout – which again does not require that success is ‘likely’ or even greater than fifty percent – shifts the balance decisively in favor of issuing the injunction against the lockout.”
     Judge Nelson granted the Brady plaintiffs’ request for a preliminary injunction, found the Eller (retired) plaintiffs’ request for an injunction moot, and concluded, “The ‘lockout’ is enjoined.”
     Nelson’s ruling came after she held a hearing on the injunction on April 7.

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