Where NFL-NFLPA labor fight stands after stay by 8th Circuit (May 16)

It was no surprise that the 8th Circuit Court of Appeals upheld their temporary stay of Judge Susan Nelson’s lower-court decision to end the owners’ lockout of the players and open the league for business.

Read: Eighth Circuit Stay 5-16-11

The ruling for the NFL ultimately keeps the door closed to football business through the life of the league’s full appeal of Nelson’s decision is heard June 3 and decided after by the same three judges who split 2-1 in favor of the NFL to continue their stay.

The judges who ruled for the NFL were Judges Steven Colloton and Duane Benton, while Judge Kermit Bye sided with the players. For the record, Colloton and Benton were President George W. Bush appointees while Bye was a President Bill Clinton appointment.

Based on the makeup of the full 8th Circuit, the NFL owners believed that a perceived pro-business court would give them their best chance to prevail against Judge David Doty, who had ruled for the NFLPA on several occasions. But Doty did not get the Brady v. NFL lawsuit, and it went to Nelson.

To summarize Judge Nelson’s original decision to end the lockout, the 8th Circuit in its’ stay decision wrote:

The court rejected the League’s argument that a federal statute, the Norris-LaGuardia Act, 29 U.S.C. § 101, et. seq., deprived the court of jurisdiction to grant injunctive relief, because the court concluded that this is not a case “involving or growing out of a labor dispute” as defined by the Act. The court also rejected the League’s position that it should stay the case, under the doctrine of primary jurisdiction, see Reiter v. Cooper, 507 U.S. 258, 268-69 (1993), pending a decision by the National Labor Relations Board on the League’s unfair labor practice charges. The court determined that the Players had demonstrated that they were suffering, and would continue to suffer, irreparable harm as a result of the lockout, that the harm to the Players outweighed any harm an injunction would cause the NFL, and that the Players had a fair chance of success on the merits of their lawsuit. On the merits, the court concluded that the non-statutory labor exemption from antitrust liability, see Brown v. Pro Football, Inc., 518 U.S. 231 (1996), does not extend “to protect the labor negotiation tool of a ‘lockout,’ as opposed to a mandatory term of collective bargaining, after a union has disclaimed any further representation of its members.” Brady, 2011 WL 1535240, at *36. For these reasons, the court entered the preliminary injunction.

The 8th Circuit panel then indicated the “four factors” in the determination of issuing a stay:

Federal Rule of Appellate Procedure 8(a) governs the power of a court of appeals to stay an order of a district court pending appeal. Under that Rule, we consider four factors in determining whether to issue a stay: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The most important factor is the appellant’s likelihood of success on the merits.

Ultimately, the 8th Circuit looked at the NFL’s chance of success on the merits, and Colloton and Benton accepted the league’s key argument at the district level that the Norris-LaGuardia Act does not allow the district courts from issuing an injuction in a “labor dispute.”

The NFL filed a complaint to the National Labor Relations Board (NLRB) stating that the NFLPA’s decertification that led to Brady v. NFL was a “sham” The NLRB has not ruled on the NFL’s complaint to date. Nelson ruled that Norris-LaGuardia did not apply in the NFL/NFLPA case, and ended the lockout. The 8th Circuit’s Colloton and Benton disagreed, writing:

The district court reasoned that this case does not involve or grow out of a labor dispute because the Players no longer are represented by a union. See id. at *24. We have considerable doubt about this interpretation of the Act. The plain language of the Act states that a case involves or grows out of a labor dispute when it is “between one or more employers or associations of employers and one or more employees or associations of employees.” 29 U.S.C. § 113(a)(1) (emphasis added). The Act does not specify that the employees must be members of a union for the case to involve or grow out of a labor dispute.

Based on the following statement by Colloton and Benton in making the stay permanent, it would look like they will rule in favor of the league in the June hearing:

In sum, we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits.

Judge Bye, in his dissent, summarized:

In sum, because I believe the Norris-LaGuardia Act does not apply in a situation where the Players are no longer represented by the union, I would conclude the NFL did not make the necessary strong showing of likelihood of success on the merits. Moreover, as it relates to the fourth factor, the NFL’s failure to make the necessary showing on the merits detracts from the NFL’s argument that the public interest favors the application of labor laws in the current context. At best, when considering the public interest in having a 2011 NFL season and, by extension, continuing with normal operations necessary for that objective, the public interest factor is a wash. Taken in conjunction with the balance of harms, which clearly favors the Players during the pendency of the expedited appeal, I would deny the NFL’s motion for a stay.

The winner in the appeal will have the first real leverage in the labor fight since March 11, when the lockout was begun by the owners and the players filed Brady v. NFL. If the NFL wins, the players can appeal to the full 8th Circuit, then to the U.S. Supreme Court.

With the stay’s language seemingly tipping the hand of the court in the June hearing, Judge Doty is yet to rule on the sum total of damages in the television contract antitrust lawsuit won by the NFLPA in March.

A major award to the players (NFLPA is asking for $707 million in compensatory damages, which could triple to a reported $2.8 billion of the $4 billion the owners would have received from the networks even if no football was played in 2011) would level the playing field between the two sides once again.

And yes, the owners could appeal Judge Doty’s award to, you guessed it, the 8th Circuit. And the clock keeps ticking on the summer days as both sides continue to head to the NFL’s version of a nuclear winter.

Here is the reaction from the NFL and the NFLPA:
NFL: NFL statement on stay granted by Eighth Circuit (NFLLabor.com)
NFLPA: NFLPA statement on stay (NFLLockout.com)

Now, for the national media reaction:
Eighth Circuit tips its hand; Judge Nelson’s ruling is in serious jeopardy (ProFootballTalk.com)
NFL owners get big win in lockout ruling (FOXSports.com)
Stay a little longer: lockout continues (NationalFootballPost.com)
Latest decision favors owners, leaving players to lean on Doty (SI.com)

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