The Draft and the Dissent: The NFL's Wild Weekend

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A funny thing happened during the unwatchable 2011 NFL Draft television extravaganza, which of course I watched several hours of on Thursday, Friday and Saturday. Right in the middle of the festivities, while America was learning about the cellphone habits and wardrobe styles of its huge hulking college football stars, the 8th U.S. Circuit Court of Appeals by a vote of 2-1 issued what it called "an administrative stay" of a key ruling in the League's labor dispute.

The federal appeals court decision, which came down late Friday during Day 2 of the League's annual "selection meeting," halted for the moment the legal effect of a trial judge's ruling late last month which had enjoined the owners' lockout. There was a lockout. Then for a day or so there was no lockout. And now there is a lockout again pending another ruling that should come any day now from the same 8th Circuit judges who just issued the stay. Give me your playbook. Here's your playbook. Give me back your playbook. Got all that? I'll keep you posted.

In case you missed the arch of these Millionaire v. Billionaire developments in real time-- say, because you were watching the Royal Wedding or preparing yourself for the red carpet of the White House Correspondents' Dinner-- let me share with you two quick things I noticed. One was disappointing. One was a little bit inspiring.

The Draft

For as long as I can remember, televised draft coverage has included the "reaction" shot (wherein a potential draft choice learns that he has been drafted onto a professional team). It's a very cool thing. For once on television, you get to see people-- usually a family-- at one of the happiest moments of their lives and it doesn't matter really at all that you have no idea who they are and will never seen them again. It's the least guilty form of voyeurism I can think of at the moment.

Now, however, in the age of cellphones and reality shows, the good folks at ESPN have taken this genre one step further. The zealous network now features a pre-action shot where the viewer learns the big news-- i.e. who was picked-- not from the Commissioner at the fancy podium but from a live view of the cellphone call that has just reached the lucky player or his mom or dad. From a screen shot of analysts talking, all of a sudden, you see a big kid talking into a tiny cellphone and you know as a viewer that he's just received The Call from a pro team. This happens now before the NFL or anyone else has made a formal announcement of the selection.

So, essentially, ESPN's cameras are scooping the League and maybe its NFL Network and certainly the Draft itself by broadcasting the information first. This "pre-action shot" happened so often during Thursday's first round, in fact, that the only apparent point to Commissioner Roger Goodell's presence at Radio City Music Hall was so that he could be lustily booed by football fans (even, for example, when he was introducing legendary former players like Barry Sanders) for his role in the lockout.

Although I am sure many of you disagree, I don't like the pre-action shot at all. I think it completely ruins the excitement-- such that it may be to the earnest fan-- of the podium announcement. It renders irrelevant the official announcement. That should come first. And then the family shot. Or the network can tape the pre-action shot and play it later, following the announcement. Either that or they should just let the poor, beleaguered Commissioner stay home. 

The 8th Circuit's Ruling

Chances are you've never heard of 8th U.S. Circuit Court of Appeals Judge Kermit E Bye, a Clinton appointee from North Dakota who has served on the federal bench for 11 years now. Judge Bye dissented from the Circuit Court panel that reinstituted (just for the time being, remember) the lockout. Now, normally, you wouldn't hear much about a dissent from an administrative stay since the stay itself is so temporary. But Judge Bye's comments are worth highlighting, not just for their legal points but for their larger ones as well.

"In my tenure as an appellate judge," he wrote, the only circumstances I can recall in which the power to grant a temporary stay has been invoked by a party, and exercised by our court, have been in circumstances which truly qualify as emergencies."

For example, I have granted such a request on behalf of an immigrant who has filed a petition with our court to review a removal order entered by the Bureau of Immigration Appeals (BIA), when the immigrant's removal date was imminent and the government had not yet responded to the immigrant's request for a stay of removal pending our review of the petition. Another situation in which a temporary stay, pending review of a motion for a stay itself, may be appropriate is in a death penalty case where an execution date has been set and is imminent.

Such circumstances qualify as true emergencies because of the impossible or nearly impossible task of reversing the consequences of allowing a district court's order to take effect. We cannot reverse the consequences of an execution if it takes place before we have had a chance to hear from both parties. Similarly, an immigrant who has already been removed faces a very difficult task of returning to this country should we actually grant a motion for a stay of the removal pending our review of the immigrant's petition.

"The NFL is certainly not in the same emergency position as an immigrant about to be removed, or an individual about to be executed,' Judge Bye wrote, "who cannot so easily reverse the consequences of initially allowing a district court's order to take effect." What refereshing legal perspective about the NFL's labor troubles, such as they are, when compared to gut-twisting troubles federal court judges deal with every day. And, alas, there were no cameras rolling live when the NFL players' union lawyers called their clients to tell them what the 8th Circuit had done and what it may mean for their future. Now that would have been must-see TV.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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