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Analysis: Judge Nelson’s decision sends NFL into a strange new world 04.25.11 at 10:42 pm ET
By

Monday’s ruling from Judge Susan Richard Nelson that lifts the lockout now casts the NFL into a strange new world, according to sports legal expert Michael McCann.

With uncertainty about the future of the Collective Bargaining Agreement, there are several unanswered questions about the immediate future of the game, including what might happen if players are to show up at the facilities to work out and/or collect offseason workout bonuses on Tuesday morning.

“Technically, the players can go back to work,” said McCann, a sports law professor who has written about the lockout extensively for SI.com. “The question, really, is under what economic system? It’s an unusual circumstance, and her ruling doesn’t really indicate whether or not the terms of the prior CBA would remain in effect.

“But technically, the lockout has been lifted.”

In the 89-page ruling, Nelson wrote that the plaintiffs “have made a strong showing that allowing the League to continue their ‘lockout’ is presently inflicting, and will continue to inflict, irreparable harm upon them, particularly when weighed against the lack of any real injury that would be imposed on the NFL by issuing the preliminary injunction.

“(T)he public ramifications of this dispute exceed the abstract principles of the antitrust laws, as professional football involves many layers of tangible economic impact, ranging from broadcast revenues down to concessions sales,” Nelson wrote. “And, of course, the public interest represented by the fans of professional football — who have a strong investment in the 2011 season — is an intangible interest that weighs against the lockout. In short, this particular employment dispute is far from a purely private argument over compensation.”

McCann, the director of the Sports Law Institute at the Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law, said the ruling was actually a bit of a surprise.

“I think it’s a surprise in the sense that most courts are usually reluctant to grant injunctions,” he said. “She had to do a lot, like find irreparable harm. That meant the players went into this unlikely to prevail, so it is a surprise. And her opinion is very much in favor of the players. It’s a slam-dunk for the players.”

Initially, it was believed that the owners had scored a minor victory by avoiding the courtroom of Judge David Doty, who had previously ruled in favor of the players on several occasions, including a March case where he ruled that the owners had violated the CBA by striking deals with television networks that require ongoing payments to the league during a work stoppage.

“It looks like any relief the owners had about this case not going before Judge Doty ended at about 4 p.m. on Monday afternoon,” McCann said.

As for the next step, the owners have already filed a “stay,” which will continue the legal process at the appellate level. That will likely send the case to the Eight Circuit Court of Appeals in St. Louis. While some believe that a ruling could come as soon as Tuesday, McCann cautioned that the courts work on their own schedule.

“Courts normally don’t act that quickly when someone’s life isn’t on the line,” he said. “For sports fans this is an emergency, and there are many livelihoods at stake, but the Eighth Circuit Court may not react as promptly as the NFL wants. It’s possible that they could react quickly — there is a lot of money on the line here — but at the same time, this isn’t a criminal case.”

As for how the Eighth Circuit Court might rule, McCann said it’s unclear which way they might lean.

“I think it’s unclear what will happen,” he said. “The Eighth Circuit doesn’t have a reputation for being particularly ideological. I think the owners would feel better if this was in the Seventh Circuit Court in Chicago, but the Eighth doesn’t have that reputation. It’s not particularly liberal or conservative. There’s no clear sense of what they’re going to do, at least not when it comes to this case.”

To read more from McCann on the lockout, check out his SI.com archive here. And follow him on Twitter for updates here.

Read More: David Doty, lockout, Michael McCann, Susan Richard Nelson Print  |  Bark It Up!  |  Digg It
  • Mike

    What tickles me are the great number of sports media types who feel it’s all the owners fault. I’ll say that word again OWNERS—as in “it’s their businesses.” So I guess my question to the neverwases(?) is, and it’s one that they never ask themselves, is what gives the players any right at all to demand that the OWNERS open their books so that they can see the “take” so that a more equitable split can be arranged. I’m wondering how many of these jockstrap sniffers have dared walk into their own boss’s offices and demanded to “see the books.” Yeah, I didn’t think so. And some even have the gall to talk about the cost of a father taking his poor kid to a game—yet never, ever, mention the millions players make–which drives the ticket prices. What kiss-asses.

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    @mike.

    owners in the NBA voluntarily gave up their books to the players because they are ACTUALLY losing money and tons of it. The NFL is one of the most profitable businesses in the country and is not losing money. As such, the players want proof that the league is losing money before they sign a deal.

    When you buy a new house, you don’t just believe the agent when she/he tells you its the greatest house ever. You take a tour, look under the floorboards, check the plumbing, lighting, and electricity.

    Why should the players buy a house if you will without doing any research on it.

  • http://www.comcast.net Mushroom

    Part of the problem here is that the NFL is NOT a private business. It is (supposedly,as the owners keep telling us) a Partnership. They play, in many cases, in publicly financed stadia. Does the public (and players) not have a right to see where the money they alloted from tax revenues goes?They uses publicly granted liquor licenses to make millions. Let the owners pay for the entire costs of thier operations and we can discuss the right to hide costs which come out of general revenue. Why should the players have money subtracted as “costs” to pay Jerry Jones’ kid a six figure salary for not showing up? Why should the costs of a corporate jet come out of general revenues? If they want to eliminate the suspicion that they are finagling the cash (which, of course they are), just make the books a matter of public record.

  • KCinNH

    Hey Mike, the players ARE the business they own. Unlike most businesses, theses Owners do NOT have a product to sell except the exceptional athletic skills of the work force. In practically any other business, 99% of the workers hired are all easily replaceable. Consumers (fans) would NOT buy their product if they fired the current elite players and hired replacements with nowhere near the skills and speed.
    - The Owners have benefited by the great product(which is the Players)with more money being made now then ever before in history of game. The players absolutely deserve a BIG piece of the pie.

  • Jimmy Freeze

    KC…your arguement is great until you factor in the following:

    It is their business because the owners have fronted BILLIONS to set up and run the league, and have the expertise to do so at a very high level-better than any other sports league in the world.

    There have been several attempts to create competing leagues, and all have failed completely, or remained marginally viable.

    The players are free to play Arena League or CFL, but don’t-because the deal they get is exponentially worse than the financial deal they have in the NFL. If they think the NFL is so bad, they have every right to go someplace else-or work in another industry like the rest of us…who don’t have the protection of liberal judges.

    Mushroom…all businesses are “partnerships” between owners and employees…any business needs many types of employees to function. Employee compensation isn’t driven solely by a company’s revenues…it’s more driven by the supply and demand of potential employees needed by a company. If there are only a few people with certain talents needed by companies, then they will be highly compensated (see Tom Brady)…likewise, if there are more employees than positions open, they don’t make alot (see US economy).

    Unfortunately, for the owners…they tried to take the high road to preserve a strong industry on behalf of owners and players…The NFLPA is taking a hell-bent approach to break the owners…While that may be fun and profitable in the short term for Demaurice Smith, and a few of the highly talented players…Goodell is correct in his letter to the Wall Street Journal…this will likely move NFL football closer to the Major League Baseball model. Where there won’t be a salary cap, or minimum salary, there will be 2 or 3 tiers of teams, with large markets dominating the league based on their ability to pay…Etc, Etc…

    Really, until the owners take a similar, extreme, position, they will continue to be at a disadvantage to the players in the courts…until they structure their businesses in such a way as to fall under the auspices of the remainder of business in the US…GIVE UP THEIR ANTITRUST EXEMPTION…and create 32 independant companies…in a football industry.
    Each company can set their own personnel policies, pay players whatever they want. Some may individually unionize, and some may not-based on their own workforce, and the laws of the states they exist in. Teams can schedule games on their own, with whomever they wish. They can negotiate their own local and national TV contracts based on their own merit. They will be fully compliant with US antitrust law…and it will be an utter sports catastrophe for everyone involved.

    Teams will go out of business, players will lose jobs, and there will be no nationally organized league, playoff or championship game. Football will return to the early 1900′s where it was played as a club sport in Chicago, GreenBay, New York, Baltimore, Etc

    If the owners are forced into a bad CBA based on legal decision, we will find out in a couple of years whether the league is is good or bad shape. When teams start filing bankruptcy or selling…everyone thinks its not possible, but baseball has taken over several teams, basketball has taken over teams, and hockey has had teams in court receivership. Time will tell…

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