NFL owners win legal round as appellate court grants stay for lockout

NFL owners have picked up a significant court victory, and an even bigger one could be on the way.

The U.S. 8th Circuit Court of Appeals, by a 2-1 vote Monday, granted the NFL’s motion for a stay, allowing the league to keep the player lockout in place at least until June 3. That’s when the court will hear the NFL’s appeal of U.S. District Judge Susan Richard Nelson’s order to restart football operations.

The appellate court, in a 24-page opinion, wrote: “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.”

James Quinn, an attorney for the players, said in an email that the ruling was “no surprise” and “we expected that the stay would be extended” until next month’s hearing. However, some legal experts believe the 8th Circuit in its opinion went well beyond what was necessary to justify the stay, and instead may have tipped its hand as to how it will rule on the league’s appeal.

“It does indicate for the football players that they’re unlikely to prevail on the merits in the 8th Circuit,” said Stanford law professor William B. Gould IV, former chairman of the National Labor Relations Board.

Despite a string of legal victories by the players — including one in the so-called lockout-insurance case that bars owners from using money broadcasters have promised to pay in the event of game cancellations — Gould said the specter of a loss in the 8th Circuit could wind up forcing the players back to the bargaining table.

“This will induce I’m sure, at a minimum, some soul searching on the players’ side,” he said. “There will be, I think, a lot of voices calling for a retreat.”

Gould added that a potential setback for NFL players at the 8th Circuit could have a chilling effect on NBA players considering the same decertification strategy in their brewing labor fight.

“The basketball players have to be looking at this and saying, ‘Is this an avenue that we should pursue?’ ” he said.

There was no hint of that among NFL players after Monday’s decision. The players’ decertified union issued a three-sentence statement, saying in part that the stay “means no football” and that the players “are working to try to save the 2011 season.”

The NFL, in turn, issued a statement stressing the importance of taking the labor dispute out of the courts and back to the bargaining table.

“It’s now time to devote all of our energy to reaching a comprehensive agreement that will improve the game for the benefit of current and retired players, teams, and, most importantly, the fans,” the statement read.

“This litigation has taken the parties away from the negotiating table where these issues should be resolved. … [T]he league and players, without further delay, should control their own destiny and decide the future of the NFL together through negotiation.”

The league and its players resumed their court-ordered federal mediation Monday after a hiatus of nearly a month. They talked for eight hours in Minneapolis, and, according to ESPN, the owners made a new proposal in hopes of ending the stalemate.

“The players are considering their proposal and formulating a response,” Michael Hausfield, an attorney representing retired players, told the network. Former players also have a seat at the table. “It’s not acceptable as is, but it’s a starting point.”

It is possible but unlikely that the sides will reach an agreement before the hearing in the 8^th Circuit. Gould said among the things that surprised him about that court’s opinion was how it was “almost cavalier” in dismissing the players’ argument they would be irreparably harmed by a lockout.

Judges Steven M. Colloton and Duane Benton voted to keep the lockout in place, whereas Judge Kermit E. Bye voted to lift it.

Bye wrote that “due to the irreparable harm presently incurred by the players, compared with the limited harm, if any, suffered by the NFL, I believe the balance of harm weighs heavily in the players’ favor.”

Gould, who believes Bye is “right on the money” in his dissent, said Colloton and Benton “without really articulating what the harm is that the NFL suffers, maintain that the NFL is suffering irreparable harm. So the prospects are not good for the players.”

The case hinges on whether the court believes the NFL Players Assn. legitimately decertified as a union, and, in turn, whether the league has the right to lock out the players.

Loyola law professor Daniel E. Lazaroff agreed that the message the 8^th Circuit sent in its opinion is clear.

“The players have an uphill battle,” said Lazaroff, director of the Loyola Sports Law Institute. “Two of the judges on that panel seem to want to toss this case based on the labor exemption, and if it were me, I’d want to redouble my efforts to focus on why this decertification was valid.”

As for extending the stay until the hearing, Lazaroff said that was only logical.

“It makes sense regardless of where you might be leaning on the merits of the case,” he said. “There’s no point in sending people back to work for two weeks if there’s a chance they’re going to let the lockout continue.”

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