MINNEAPOLIS (CN) – Tom Brady and his co-plaintiffs Wednesday filed a motion opposing the NFL’s request for a stay pending appeal of a federal judge’s injunction against the team owners’ lockout. If the court grants a stay, the Brady plaintiffs want the court to order the NFL to post a $1 billion bond during appeal.
The NLF Player’s Association general counsel filed a separate motion in opposition to the league’s request. The NFL countered with a letter requesting permission to address the bond proposal.
U.S. District Judge Susan Nelson granted the NFL’s request, noting that the plaintiffs had raised the issue Wednesday for the first time. In the NFL’s response filed the same day, the league said the bond demand is without basis.
Nelson had issued the temporary injunction Monday. (See Courthouse News story on it, on this page.)
The Brady plaintiffs wrote: The Court should deny the NFL Defendants’ motion for a stay of preliminary injunction pending appeal. In granting the Brady Plaintiffs’ motion for preliminary injunction, the Court properly found that the Brady Plaintiffs have a fair chance of succeeding on the merits of their claim that the NFL Defendants’ lockout violates the antitrust laws, that their misconduct is not protected by the non-statutory labor exemption, and that this Court can properly enjoin their misconduct. The Court also concluded that the Brady Plaintiffs would be irreparably harmed if the preliminary injunction did not issue, and that the balance of harms favors the Brady Plaintiffs.
“As set forth more fully below, the Court’s Order is consistent with the decisions of every other court that has ruled on the issues presented by the Brady Plaintiffs’ motion for a preliminary injunction.1 Yet the NFL Defendants argue that a stay should issue because the Court’s grant of a preliminary injunction has forced them into a dilemma: either risk violating the antitrust laws (by imposing last year’s system or some other system that players may challenge) or suffer the alleged injuries arising from ‘unrestricted free agency.’
“That, however, is not the case. If the NFL Defendants are faced with a dilemma,
they put themselves in that position by repeatedly imposing rules and restrictions that violate the antitrust laws. … Any alleged predicament is of their own making.”
In his motion, NFLPA General Counsel Richard Berthelsen wrote that “lifting the lockout immediately is the only way to preserve the 2011 season announced by the NFL, given the need to sign free agents, to complete the NFL draft and sign drafted players, to plan and to hold training camp, and to plan for the season itself.”
“In fact, any stay of the injunction and continuation of the lockout would actually be a detriment to NFL clubs, as the league has stated that it will lose money during the lockout totaling $1 billion before a single game is even cancelled. See NFL: Staggering Financial Losses would Follow Lockout, USA Today, January 28, 2011, attached as Ex. B. With the lockout enjoined, the clubs can go back to operating their multi-billion dollar business and making enormous amounts of money, as they did previously …”
After requesting that the court deny the league’s request for a stay, Berthelsen concludes: “If the Court, however, were inclined to grant a stay, the Defendants would need to post a significant bond in order to protect the players’ rights, which would need to total at least $1 billion. We simply don’t know how long any stay would last, and it could cause the cancellation of NFL games. Given that league-wide payroll for the 2010 season exceeded $3.93 billion in salary alone, a $1 billion bond would represent only about twenty-five percent of payroll. Even at this amount, the bond would be significantly less than the treble damages that the NFL could be liable for at the end of this antitrust suit.”
The Brady plaintiffs’ 23-page motion was signed by Barbara Berens with Berens & Miller of Minneapolis.