What the NFL Lockout Ruling Says About Our Federal Judiciary

The negotiations between professional football team owners and players opens up the world of labor disputes to a whole new audience



While National Football League owners and players inch toward their inevitable settlement--while the billionaires figure out how to split the dough with the millionaires--the federal litigation the lockout has generated continues to serve as an educative tool for a whole new audience. No, football fans, the Sherman Anti-Trust Act isn't named after Allie Sherman. No, all you couch potatoes out there, the United States Supreme Court's 1996 ruling styled Brown v. Pro Football has nothing whatsoever to do with the great Jim Brown.

On Friday, the 8th U.S. Circuit Court of Appeals issued another ruling that favors owners over players. Dissolving on the merits an injunction against the lockout which a federal trial judge had ordered a few months ago, the appeals court panel said, by a 2-1 vote, that the players could not rely upon federal labor laws to help their cause. The players could appeal the ruling to the full 8th Circuit or try to get the Supreme Court involved, but both of those options would take time and, anyway, a deal may be in place as early as next week.

While the practical impact of Friday's ruling will surely be to bring the two sides even closer to a deal than they already are, the legal impact of the decision is notable because it highlights in great detail the divide that exists among our nation's federal judges when it comes to labor rights. On the one hand, represented by the 8th Circuit's majority, you have the faction that is eager to define labor laws so that they help business over labor. On the other hand, as represented here by the dissent, you have the faction that interprets labor laws with an eye toward helping labor over management.

Stripped of the legalese, that's really what this latest 8th Circuit ruling is all about. The majority interpreted federal laws largely designed to help labor (by precluding owners from going to federal court for an injunction to stop a strike) to help management (by precluding players from going to federal court for an injunction to stop a lockout). As 8th Circuit Judge Kermit E. Bye pointed out in his dissent:

Despite the repeated efforts of the legislative branch to come to the rescue of organized labor, today's opinion puts the power of the Act in the service of employers, to be used against non-unionized employees who can no longer avail themselves of protections of labor laws.

For 20 of the past 30 years, a Republican president has sat in the White House. The result is a federal judiciary that is far more conservative than it was a generation ago. The phenomenon is most visible at the Supreme Court, as conservative a body today as it has been since the 1930s. But the trend is felt most at the lower federal court levels where the vast majority of legal disputes are resolved. The two judges who sided with the owners, 8th Circuit Judges William Benton and Steven Colloton, were both appointed to their posts by President George W. Bush. Who says elections don't matter?

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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