NFL Lockout is Back|After 8th Circuit Rules

ST. LOUIS (CN) - The 8th Circuit today (Friday) granted the NFL's request to stay a federal judge's order enjoining the league's lockout, "to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal." One member of the three-judge panel dissented, writing that the NFL did not face a "true emergency."

The 8th Circuit ruling throws the prospect for a 2011 football season in doubt again, the day after the NFL began its draft.

Judges Steven Colloton and Duane Benton voted to lift U.S. District Judge Susan Nelson's temporary injunction against the NFL's lockout of its players.

Judge Kermit Bye dissented in writing.

New England Patriots quarterback Tom Brady leads the class action antitrust complaint against the league and the owners of its 32 teams.

Colloton and Benton lifted the temporary injunction in a terse, one-paragraph statement: "The motion of appellants National Football League, et al., for a temporary stay of the district court's order dated April 25, 2011, pending a decision by this court on the appellants' motion for a stay pending appeal, has been considered by the court and is granted. The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal. See, e.g., In re Grand Jury Proceedings, 841 F.2d 230, 232 (8th Cir. 1988) (describing grant of temporary stay to consider motion for stay pending appeal); see also Cobell v. Norton, No. 03-5262, 2004 WL 603456, at *1 (D.C. Cir. 2004) (describing administrative stay procedure); Arnold v. Garlock, Inc., 278 F.3d 426, 433 (5th Cir. 2001) (describing implementation of temporary stay to provide sufficient time to consider fairly whether a formal stay pending appeal should issue); Twelve John Does v. District of Columbia, 841 F.2d 1133, 1137 (D.C. Cir. 1988) (describing entry of a temporary administrative stay to permit time for full consideration of motions). The district court's order of April 25, 2011, is temporarily stayed."

Bye dissented in a longer, but also brief, statement, which included: "In my tenure as an appellate judge, the only circumstances I can recall in which the power to grant a temporary stay has been invoked by a party, and exercised by our court, have been circumstances which truly qualify as emergencies. For example, I have granted such a request on behalf of an immigrant who has filed a petition with our court to review a removal order entered by the Bureau of Immigration Appeals (BIA), when the immigrant's removal date was imminent and the government had not yet responded to the immigrant's request for a stay of removal pending our review of the petition. Another situation in which a temporary stay, pending review of a motion for a stay itself, may be appropriate is in a death penalty case where an execution date has been set and is imminent.

"Such circumstances qualify as true emergencies because of the impossible or nearly impossible task of reversing the consequences of allowing a district court's order to take effect. We cannot reverse the consequences of an execution if it takes place before we have had a chance to hear from both parties. Similarly, an immigrant who has already been removed faces a very difficult task of returning to this country should we actually grant a motion for a stay of the removal pending our review of the immigrant's petition.

"The NFL has not persuaded me this is the type of emergency situation which justifies the grant of a temporary stay of the district court's order pending our decision on a motion for a stay itself. If we ultimately grant the motion for a stay, the NFL can easily re-establish its lockout. The NFL is certainly not in the same emergency position as an immigrant about to be removed, or an individual about to be executed, who cannot so easily reverse the consequences of initially allowing a district court's order to take effect. Because I believe we should limit our reliance on Eighth Circuit Rule 27A(b)(4) to true emergency situations, I disagree with the panel's decision to enter a temporary stay based on the circumstances involved in this case."

Judge Nelson, in Minneapolis, issued an injunction Monday against the lockout by the league and its 32 team owners. She refused to stay that order on Wednesday, so the NFL moved later that day to block the injunction in the St. Louis-based federal appeals court.

The NFL also moved for an expedited appeal and a temporary stay that would enjoin the injunction while 8th Circuit considers the full stay.

In its bid to delegitimize the injunction, the NFL argued that the Norris-LaGuardia Act prohibits courts from issuing preliminary injunctions in labor disputes, that the National Labor Relations Board has primary jurisdiction and that the injunction violates the nonstatutory labor exemption to antitrust laws.

Nelson had rejected the same arguments Wednesday, saying the NFL and team owners failed to demonstrate any real irreparable harm, especially when weighed against the players. Though the NFL is under no obligation to enter a new contract with any player, the players are faced with immediate harm because of their short careers, her ruling states.

The NFL says Nelson unfairly simplified the case and got it wrong.

"In addition to skewing irreparably the collective bargaining process, the preliminary injunction effectively requires the clubs to produce their collective product, thereby exposing them to a host of other potential antitrust claims - many already pled - by these very same plaintiffs," the NFL's 23-page motion states. "In contrast, the players suffer so little immediate and irreparable injury that they did not even seek a temporary restraining order."

Furthermore, the dispute is clearly labor-related and therefore NLRB jurisdiction, the NFL argued.

"Even if one were to indulge the rather fanciful notion that there is no longer a current labor dispute between the players and the League, there is no question but that this case grows out of a labor dispute, and that is all that the Act requires," according to the motion (emphasis in original). "Plaintiffs filed this suit only hours before the CBA [collective bargaining agreement] expired, and only minutes after the Union walked away from labor negotiations conducted under the auspices of the Federal Mediation and Conciliation Service; and plaintiffs seek relief concerning the terms and conditions of employment. The purported disclaimer does nothing to change the origins of this action."

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