Nelson Opens NFL for Business

Judge Susan Nelson denied the owners’ request to stay the injunction of the lockout, opening the NFL for business last night.

The owners, in their great wisdom, are choosing not start free agency (bringing themselves into peril of massive damages in the pending suit), and instead are waiting to hear from the 8th Circuit Court of Appeals.  They’ve asked them to stay the injunction and hear their appeal in an expedited fashion.

The biggest news, however, is the strong language the Judge used in crushing the NFL’s arguments.  Nelson declares the lockout lifted, but notes that teams don’t have to respond by offering contracts to players:

Accordingly, the NFL is only in the position of any defendant who has been accused of illegal action, but not (yet) found liable. The League can choose either to continue its allegedly-illegal behavior until judgment, or to modify its behavior. But nothing legally compels either choice between April 25 and any future th Eighth Circuit decision. In such an environment, the Players cannot force any onerous contract terms on the NFL. In fact, nothing in this Court’s Order obligates the NFL to even enter into any contract with the Players. In short, the world of “chaos” the NFL claims it has been thrust into–essentially the “free-market” system this nation otherwise willfully operates under–is not compelled by this Court’s Order.

In other words, the NFL claimed they would be harmed by the injunction being lifted because of all the bad free agent contracts they’d have to sign.  Moreover, whatever rules they used could jeopardize them in the coming law suit. Her response was simple, “there’s no lockout, but there is nothing forcing you to sign contracts.  No one is forcing you to do anything.”  In other words, whatever ‘chaos’ there is, is of your own making.

The League may choose to act in accordance with its expressed belief that the Players remain a union and that they have reached a state of impasse, or the League may choose to chart a different course, implementing a version of the 2010 player system, or something different altogether. This Court’s Order does not obligate the NFL to enter into contracts, nor does it proscribe the League’s non-lockout conduct in general. Like any defendant in any lawsuit, Defendants themselves must make a decision about how to proceed and accept the consequences of their decision.

Proceed with caution, is her message to the NFL.  She’s not going to tell them what to do or how to start free agency, but they’ll have to live with the fallout of what they do choose.

On page 11 she argued that the NFL’s claim of chaos made little sense in light of the fact that they sent out franchise tenders, released a schedule and talked about how they were ready for a 2011 season.

On pages 14-15 she seems to argue that the NFL lawyers haven’t even accurately understood her originally ruling, and are pursuing the wrong line of argumentation. On pages 16-17, she strengthens her case that the Norris-La Guardia act doesn’t apply (and I believe this to be the central issue the NFL must win to succeed on appeal).  She essentially says there’s no question the decertification was valid.

In fact, deciding the issue of the validity of the NFLPA’s disclaimer was not difficult in light of the fact that the Board’s General Counsel addressed essentially the identical issue twenty years ago. Having considered the NFL’s arguments, the Court concludes that the League has failed to make the requisite “strong showing” of the likelihood of its appeal to succeed on the merits.

In other words, she doesn’t think the NFL is going to win the appeal.

Finally, she argues that she is acting in the public interest:

The NFL voluntarily opted out of the then-applicable Collective Bargaining Agreement (“CBA”) in May 2008, two years before its expiration. Since that time, during the parties’ failed attempts to negotiate a new CBA, the NFL warned the Players that they might utilize a lockout as a means to achieve a favorable agreement The NFL has had ample opportunity to serve and promote the public interest in encouraging the collective bargaining process in the past, but in this present context, there is no such process to encourage. As this Court suggested in its Order, there is no public interest in permitting the NFL to continue to enjoy the benefits and protections of labor law–antitrust immunity and the right to lock out the Players–without the Players being able to enjoy their corresponding rights of collective bargaining and the right to strike.

In other words, it’s bad for America to let the lockout go on.

The 8th Circuit court could jump in and grant a stay, and we’d be back to square one while they hear the appeal, but for now the owners have had yet another shot fired across their bow. If the appeals court doesn’t save them, they are in serious trouble.

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