Injunction Hearing Thoughts and Links

Yesterday, Judge Susan Nelson heard arguments about whether or not she should issue an injunction to lift the lockout and force owners to let players come back to work.  Here’s a nice summary of how the day went

With the caveat that it is impossible to know for sure what a judge is thinking just from the questions she asks, allow me to comment on the key ideas. These are my opinions and interpretations of the questioning.  I could be 100% wrong, but I don’t believe I am. Again, this is commentary and these are my opinions only.

This stage of the trial boils down to three arguments:

1.  Did the players have the right to decertify, or was their move some kind of ‘sham’.  

This is the key issue. Frankly, the owners’ argument has never made any sense to me.  The decertification was clearly legal, and the owners’ objection has always been based in logic not precedent or law.  I know it seems like the players are still unionized, but in very important and frankly obvious ways, they are not. A union is not a group of people who talk about stuff.  A union is a special legal body the existence of which gives special rights to its members.  The NFLPA still exists (without any stupid asterisk), but it does not have the legal standing it once did.  The owners’ entire case is built on what I consider to be an insane assertion legally. 

Here’s what Judge Nelson said about that yesterday:

“These folks can disclaim if they want, can’t they?” she asked. “It’s a big risk on their part. They risk a lot by doing it.”

Again, this is not a ruling, and could just be a query to elicit a thoughtful response, but it had to strike terror in the hearts of the owners.

2. Does the court have the right to hear the case at all?

The owners’ argument is that the court shouldn’t hear the dispute until the NLRB has had time to rule on the issue of the legality of decertification.  The reason the owners want this is because it’s painfully slow, and might not happen for years.  This would give them freedom in the meantime to lock the players out indefinitely.  This is part of their strategy to stall, delay, and avoid progress at all costs.

Judge Nelson did not take kindly to these arguments, indicating that she did in fact have that right.

3.  Would the players suffer ‘irreprable harm’ if the lockout was not lifted.

This was considered the toughest point to win for the players.  The players’ lawyers argued that individuals without jobs and without medical insurance suffer every day they are illegally locked out.  While the players as a collective aren’t harmed much by a brief delay, some individuals certainly are.  That’s the key.  If the judge decides that some players would be harmed in ways that money alone can’t fix, she has the right to lift the lockout.  Stunningly, she spent almost no time debating the issue, taking it almost as a matter of course, saying it “appears the players have a strong case” on that point.


In other words, on all three of the central issues to the owners, Nelson gave some indication that she was leaning the other way.  Law is complicated, and there’s no way to tell how she’ll rule.  What is stunning is the arrogance showed by the owners to her final request.  She finished the day urging both sides to consider court assisted mediation while she rules.  The link contains the comments by the lawyers after the hearing. The players have already come out and said they would be happy to engage in talks supervised by the court.  But it’s the response of the owners that is baffling.  Still clinging to their untenable position that the NFLPA is still a union, they are going to REFUSE to follow the judge’s request for mediation overseen by her court.

They are about to have a major court case involving billions of dollars, and the judge that’s overseeing that case asked them to sit down and talk, and they are refusing.  Their logic is that the players union still exists and they will only engage in CBA talks with the union.  Given the fact that the judge seemed ill-disposed to accept that line of reasoning, I can’t imagine she’ll be real thrilled when the trial starts without mediation having been attempted.

I’ve said all along that if the owners were foolish enough to let this go to trial the result would be a blood bath in favor of the players.  History should be our guide in such instances.  Everything that happened yesterday screamed that the players have the law on their side, and worse that the owners are pathologically incapable of accepting that.  They have no interest in playing football in 2011, and are desperate to avoid anything that would lead to a quick resolution of this situation.

I take no delight in the owners’ hubris.  I wish they’d behave reasonably and at least heed the judge’s advice.  If nothing else, it makes no sense to show a hostile attitude to a judge who will decide their future.  Alas, they cling to their weak arguments and march ignorantly down the path of destruction.


One more quick trial link. Alex Marvez claims Brady and Manning hurt the cause by not showing up yesterday.

Not to say that having Brady and Manning in attendance would have swayed Nelson into immediately ordering the lockout lifted. But it definitely wouldn’t have hurt.

There is another type of court involved in the NFL-NFL Players Association dispute as well: the court of public opinion.

Even if the plaintiffs receive a favorable judgment when Nelson rules later this month, an NFL appeal will soon follow that could reverse the decision. Should the lockout remain in effect, the NFLPA will need to rally as much outside support as possible to help apply pressure on the league in future labor negotiations and keep players unified.

Frankly, the assertion that Brady or Manning showing up would have had ANY effect on the judge is insulting to her.  Secondly, this is only the first hearing.  Brady and Manning are the big guns.  You don’t trot them out now while everyone is paying attention.  If the goal for their presence is media and fan relations, then you save them for when people are bored/tired of the whole mess.  You don’t shoot your wad on the first day.

Marvez’s article is probably the worst piece I’ve read on the topic in some time.  It’s poorly reasoned and felt like a cheap shot that was off topic and ill-timed.