Delay of Game: The Law and the NFL Lockout

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Making sense of the negotiations between players and owners, which feel like they're moving at a glacial pace

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Except for the occasional judgment call by a referee, there is very little ambiguity in the world of the National Football League. The players hurl themselves at one another and the ball and, at the end of the game, almost always there is a clear winner and a clear loser. The statistics-- for a drive, a game, a team, a season, a career, a franchise--are immediately available to be judged and evaluated.

By contrast, there is a great deal of ambiguity in the world of the law, especially in the middle of a case. Different judges from different backgrounds with different philosophies come to different conclusions when evaluating legal precedent and statutory language. They weigh subjective factors differently, offer good arguments for doing so, and often create new rules and standards on the fly, which is why Justice Robert Jackson was so spot-on years ago when he noted that the dictates of the United States Supreme Court are final not because they are right but rather are right because they are final.

This dichotomy surely helps explain why many football fans seem to be having a hard time fully digesting news of how the federal courts have so far dealt with the labor "lockout" that threatens the coming season. For example, even though the 8th U.S. Circuit Court of Appeals has yet to issue a substantive ruling on the merits of the labor dispute--even though the judges there are still in the huddle, you could say--the federal panel has been roundly excoriated (or praised) for its procedural moves as though it had already executed its play.

Take Monday's ruling, for example. (Here is a link to it). By a vote of 2 to 1, with another very strong dissent, the 8th Circuit kept the current owner-imposed lockout in place at least until June 3rd, roughly three weeks from now, when it will hear argument on the merits of the fight. In so doing, the panel's majority declared that it had "serious doubts" about whether federal law permitted the courts to enjoin a lockout. A district court order to the contrary, the 8th Circuit noted, was thus unlikely to prevail when fully vetted. Let's wait just three more weeks and do it right, is all the appeals judges said Monday. Three weeks--a blink of an eye in the annals of non-capital federal civil procedure!

It's not yet the fourth quarter, folks; it's not even fourth down in the first. Despite the slick protestations of fanatics on both sides of the ball, the law evidently is more vague than we would all like it to be. So far, two months into the dispute, four well-meaning federal judges have looked at the dispute. Two (if you count the trial judge) have sided with the players. Two have sided with the owners. None have held an evidentiary hearing on the merits of the anti-trust issues, or listened to lawyers cross-examine material witnesses, or heard from any so-called experts. In law and in art, there has to be a there there before it gets torn down or raised up, right?

Here's a good paragraph from Monday's majority ruling that emphasizes the preliminary nature of all that has come so far in this case:

Both sides raise valid points, and this is a case in which one party or the other likely will suffer some degree of irreparable harm no matter how this court resolves the motion for a stay pending appeal. We do not agree, however, with the district court's apparent view that the balance of the equities tilts heavily in favor of the Players.

The district court gave little or no weight to the harm caused to the League by an injunction issued in the midst of an ongoing dispute over terms and conditions of employment. The court found irreparable harm to the Players because they lockout prevents free agents from negotiating contracts with any team, but gave no weight to the harm that would be caused to the League by player transactions that would occur only with an injunction against the lockout. The court gave full weight to affidavit evidence submitted by the Players, although that proof was untested by cross examination at a hearing.

The district court's analysis was conducted without the benefit of knowledge that this appeal will be submitted for decision on a highly expedited schedule--a circumstance that should minimize harm to the Players during the off-season and allow the case to be resolved well before the scheduled beginning of the hearing (citations omitted by me).

Bad news for players. Good news for owners. But certainly not a ruling that ought to shock the conscience of anyone who has a stake in the outcome of the dispute. The players have been hoping that the federal courts would undo the lockout and thus increase their bargaining power with owners. The League in turn has been hoping that the very same judges would keep the lockout in place and thus increase the leverage that owners would like to maintain over the players and their former union. When both sides go to court seeking advantage, one side inevitably comes away disappointed. This is how and why complex cases settle--as this one surely will.

Typically, these disputes get settled before an evidentiary trial. Here, with a narrow off-season window, with timing thus a huge substantive factor, the fight naturally is over quick-starting injunctive relief. The back-and-forth of the "stay" rulings we have seen here for the past month or so may be startlingly fresh to some football fans who are used to quick, definitive results at the end of each Sunday. But it is strikingly mundane to federal judges, whose rulings every day all across the country alter the respective bargaining positions and power of individuals and companies. Take, to cite just one recent example, a case I have been following very closely--the huge Walmart class-action case now before the Supreme Court. What the justices decide about that matter will surely determine the fate of hundreds of thousands of potential plaintiffs as well as a massive company's bottom line. Sound familiar?

It is likely that the 8th Circuit after the June hearing will issue a dispositive ruling that endorses its preliminary view. But it is also possible that one of the 8th Circuit's judges hearing the case will have his mind changed by what the players' lawyers say in court. This is why courts hold hearings, and oral arguments, and why it's always dangerous to guarantee the final score with the players barely arrived on the field. So take a deep breath, football fans. Despite the frustration you feel about the pace of things, and about the seeming uncertainty of it all, the law actually is rushing to give you a result here that will, one way or the other, prompt the billionaires to come to terms with the millionaires about the future of the game we all love.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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