The game of wits (or some say not so witty) continues as both the NFL players and the NFL filed documents with the 8th U.S. District Court of Appeals in St. Louis yesterday. A three-judge panel of the appeals court is expected to decide this week whether or not the lockout should remain in place while the case of Brady, et al. vs. NFL winds its way through the appeal process. On April 29, the same panel of judges granted the NFL’s motion for an administrative stay of the district courts decision to end the lockout.
The players filed a letter with the appeals court to correct what they say was a misstatement by the NFL in its brief that the players motion for a preliminary injunction was supported only by “conclusory opinions.” In support of their position that players are suffering harm now, the letter stated that the players’ motion was accompanied by sworn declarations from their agents who have more than 165 years of collective experience negotiating NFL players’ contracts and have firsthand knowledge of the market for NFL players.
The district court in its decision last week, which briefly ended the lockout, stated “the Brady Plaintiffs have shown not only that they likely would suffer irreparable harm absent the preliminary injunction, but that they are in fact suffering such harm now.” In reaching this conclusion, the district court had noted that there was “extensive affidavit evidence submitted by the Brady Plaintiffs” and that the NFL “offered little, if any evidence to directly rebut the players’ evidence.”
To read the players’ letters click here.
A stay pending appeal would only be granted if the NFL can demonstrate that it will suffer irreparable harm if the district court’s decision is not stayed. In its brief, the NFL argued that it would be irreparably harmed if the stay were not granted because the failure to do so would result in “undercutting its labor law rights and irreversibly scrambling the eggs of player-club transactions. Absent a stay there will be a host of changes in the employment relationships between hundreds of players and the 32 NFL teams.”
In addition to claiming the it will be irreparably harmed if a stay is not granted, the NFL in its brief argued that the district court did not have jurisdiction over the case in the first place because the Norris-LaGuardia Act of 1932 prohibits federal judges from intervening in labor disputes. While the Norris-LaGuardia Act does limit federal judges ability to intervene in certain peaceful labor disputes, it was enacted with the primary purpose to protect and allow employees to form unions without employer interference.
To read the NFL’s brief click here.
The players, in further support of their motion, had submitted declarations from attorney Richard A. Bethelsen who has worked with the NFLPA for almost 40 years and who witnessed previous occasions when the NFL operated without a collective bargaining agreement and suffered no harm. The players’ letter states that the district court concluded that the NFL had submitted little if any evidence to support its motion for a stay pending appeal.
The lack of factual evidence submitted by the NFL was something that Circuit Judge Kermit Edward Bye highlighted in his dissenting opinion to the order granting the temporary stay. In his opinion, Circuit Judge Bye said that he believed “some showing of irreparable harm must be shown to justify the entry of a temporary stay pending review of the motion for a stay. Based on the materials which have been filed in the case up to this point, the NFL has failed to satisfy me it will suffer any irreparable harm from allowing the district court’s order to take effect.”
To read the appeals court order click here.
If the stay is granted the lockout will remain in place and players will remain shutout until the full court decides the NFL’s appeal of the injunction which could take several months. In the meantime, there will be no trades, player signings or minicamps.
If the stay is denied the NFL will once again be forced to end the lockout and let players back into the facilities. This could also open the doors to free agency although the league resisted that last week during the short lockout reprieve.
Most likely the party that loses on the stay request will appeal to the full court of appeals. So no matter what happens this week we will all have to stay tuned.
