A Dark Day for Fans

The 8th Circuit Appellate Court finally ruled on the injunction lifting the lockout.  The result was a permanent stay, ensuring the lockout would last through to the end of the appeals process.  While a hearing on June 3rd will help establish whether Judge Nelson’s injunction lifting the lockout will be upheld, the court gave strong indication they are likely to over-turn the ruling.

More shocking than the stay itself is the strong language the 8th Circuit court used.  The particular nature of their argument should have a chilling effect on hopes that the NFL labor situation will be resolved before the start of the regular season.

What did the Court rule?

The Court found two things.  First, they ruled that Judge’s Nelson’s argument that she had jurisdiction was unlikely to survive the appeals process.  They argued that the Norris-LaGuardia Act prevents federal judges from intervening in labor disputes.  The NFL argued that the NFLPA’s decertification was a ‘sham’, and that they were still a union.  They filed a grievance with the National Labor Relations Board. They then argued the NLRB has primary jurisdiction, and a court can’t lift the lockout.

Judge Nelson ruled that the Norris-LaGuardia act is meant to protect striking workers, and doesn’t apply. Furthermore, she ruled the NLRB has already decided similar cases in favor of labor.  The appellate court ruled that regardless of whether or not the union exists, this is still a case ‘arising out of a labor dispute’. They chose to define the word ‘labor’ broadly (as in: involving workers), rather than narrowly (as in: involving unions).  This is a rather peculiar reading, and leaves the door open to more appeals.  Essentially, the court didn’t accept the reasoning of either side (Owners: “sham” defense, Players: Norris-LaGuardia doesn’t apply because we aren’t a union), instead they created their own novel way of applying Norris-LaGuardia without disputing decertification.

Second, the court ruled that Judge Nelson didn’t consider strongly enough ‘irreparable harm’ to the NFL if the lockout is lifted.  This ruling was less problematic for the players because they admitted there’s a balance of harms (no matter what happens, one side is harmed). Because of that, the balance is likely to shift with time toward the players. This is not an objection that is insurmountable.

At no point did they say or imply the lockout is legal. They’ve only questioned the court’s ability to lift it.

Why does the NFL want the NLRB to have jurisdiction?

The NLRB often takes more than a year to decide cases.  Functionally speaking, an appeal to the NLRB to decide if the NFLPA is still a union or not is a win for the owners. Even if the owners lose their appeal (and Judge Nelson believed they would), the appeal itself would take so long that the lockout would have its desire consequence: economic harm to the players.  Even if a year from now the NLRB overturned the lockout, the players would have taken such a beating in the meantime that the owners would likely have secured a deal on their terms. 

In other words, the owners don’t have to worry about being right. They just need the process to take as long as possible, so the players fold first.

Why is the ruling bad news for fans?

While not final, the ruling clearly telegraphs the intent of the 8th Circut Court to overturn the injunction against the lockout.  However, depending on the wording of the final verdict, the court could manage to embolden both sides. Unlike other court rulings against the owners that were harsh in their language, this ruling did not attack the players directly, nor did it jeopardize any of their key arguments.  It’s merely a ruling about whether Judge Nelson has the right to lift the lockout or not.  The owners can be confident their lockout will go on. The players can be confident that the general merits of their case are sound.

In other words, this is a functional, tactical victory for the owners but not an ideological one.  Nothing in the ruling says the owners are correct or likely to prevail on the larger issues. It only says that the NLRB has to decide the case first.

Meanwhile, Judge Doty’s pending ruling on the TV case could prove a major monkey wrench in the process. If he awards massive damages for the players, they would then have the money necessary to wait out the owners, and the dispute could literally last another year at least.

This ruling tips the scales against a quick resolution and forces everyone to prepare for many, many more months of litigation.

What are the Owners’ options?

If the owners are serious about a CBA deal (and I don’t believe them to be serious), they should immediately make their best offer to the players.  A show of good faith now could lead to a resolution.

If, however, the owners are committed to crushing the union, they will make a poor offer now.  This ruling ensures that it doesn’t matter if the owners have any legal grounds for the lockout, the process will take so long to resolve that they can make the players cave.  Jim Irsay suggested that he and Jeff Saturday could get a deal done over drinks. I’m sure they could. If the league listens to the statesmen now, there’s hope. Unfortunately, Jerry Jones and Jerry Richardson still have too much say.

What are the Players’ options?

They can cave now and take whatever deal the owners offer.

They can wait for the 8th Court’s final decision and appeal that to the US Supreme Court.  The Court would have to hear the case, and then rule.  A win there for the players on the jurisdictional issue would end the lockout.

They can wait out the owners, hope for a good ruling from Doty, and continue with their case. Nothing in the ruling yesterday attacked the merits of their case or their arguments.  If they choose this path, they are settling in for a long bloody war which they are still likely to win legally…if they can last long enough to see the end of it.

What should fans hope for?

A miracle. 

Unless the owners decide to make a credible offer, I believe now more than ever that this process will cost us the 2011 season.  Suddenly, the doomsday scenario posed by Cris Collinsworth has legs.

Frankly, I don’t see any way this mess doesn’t last until at least the first few months of the season.  The reason is simple: the owners want it to. They want the lockout to last as long as possible because if they break the union, they get the best deal.  The owners have never been serious about getting a deal done, and they want this process to drag on as long as possible.

In many ways, I don’t care who wins.  I do believe the players’ position is more grounded in law and justice, but my primary concern is preserving the Super Bowl for the city of Indianapolis.  I now believe the only way that can happen is for either the Supreme Court to get involved and overturn the curious logic of two of the three judges or for the owners to achieve their total union crushing victory.

Frankly, I don’t think the union will fold. I fully expect this to drag on well past the one year mark. Eventually, the NLRB and the courts will rule in favor of the players, but by then fans will be too angry to care.  They’ll blame both sides, and the game will suffer.

It’s 1994 all over again.

Labor Links:

Farrar: Get ready for a long fight

On irreparable harm

Brandt summarizes the case

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