Judge Says She May Rule on|NFL Dispute in a ‘Couple Weeks’

MINNEAPOLIS (CN) - NFL players on Wednesday asked a federal judge to enjoin what they called an illegal lockout by the league and its 32 team owners. The daylong hearing focused on whether it's a labor fight or an antitrust battle; whether the NFL has the right to lock out players, who decertified their union just before the collective bargaining agreement expired; and whether the Norris-LaGuardia Act makes a federal courtroom or the National Labor Relations Board the appropriate place for the legal game.

Five NFL players who signed on to the antitrust lawsuit attended the hearing before U.S. District Judge Susan Nelson: Vincent Jackson, Ben Leber, Brian Robison, Mike Vrabel and Von Miller.

The NFL's attorney, David Boies of Boies, Schiller & Flexner, reiterated the phrase "grows out of a labor dispute," from Norris-LaGuardia, to argue that players cannot file an antitrust complaint until the struggle is "sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process."

Boies claimed that the NFL's lockout is a "tool" to bring players back to the bargaining table: a "timeout," and that nothing in antitrust law prohibits a lockout.

The players' attorney threw a challenge flag on that one.

"A timeout is not cutting off athletes' ability to use their services for a year," said Michael Hausfeld, representing players and retired players. "If they wanted a timeout, they would have used less restraints."

Plaintiffs' attorney James Quinn with Weil, Gotshal & Manges said the players believe they have the right to choose their antitrust rights over their labor rights.

Since there is no union and no collective bargaining agreement, the players complain of an antitrust violation, and that should be heard by a federal court, not the National Labor Relations Board, Quinn said.

If Judge Nelson finds that the dispute belongs before the NLRB, Quinn said, the process could take years, and cause more harm to the plaintiffs, considering the brevity of the typical NFL career. (The typical NFL career is less than 4 years.)

Quinn said the players don't want their expired union, the National Football League Players Association, to represent them. He said they have given up their collective-bargaining rights, including the benefits of being associated with a union.

Boies said that the position in the players' complaint is very broad. "Our basic position [is that] these kinds of matters ought to be settled at the collective bargaining table and not in the federal court," Boies said. "And we've asked the court to deny the injunction."

The Norris-LaGuardia Act of 1932, also known as the Anti-Injunction Act, a crucial piece of New Deal legislation, barred federal judges from enjoining nonviolent labor disputes, and prohibited "yellow dog" labor contracts, which made workers agree as a condition of employment that they would not join a labor union.

(For the record, the cosponsors of the bill, Senators George Norris of Nebraska and Fiorello LaGuardia of New York, were both Republicans.)

Judge Nelson asked both sides to go back to federal mediation until she makes her decision, in a "couple weeks."

Quinn said that mediation is "more likely at federal court under a federal mediator, having to do with the settlement of the litigation, not collective bargaining."

Boies said: "Even if there was an injunction, that wouldn't solve the problem of how to operate the league. An injunction would delay the process on issues that has to be resolved with collective bargaining. It's a backward step towards resolution. The fastest way is to get back to good-faith negotiation."

About the only thing that Boies and Quinn could agree on was how "well prepared" Judge Nelson was for the hearing.

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