Lounge Legal Dept.: Sorting Through the Latest Labor News

Hey, everybody. Ryan here to introduce a new feature: the Lounge Legal Dept. That’s right, we now have our own in-house lawyer. Actually, Jeremy Clark, an attorney and a Steelers fan, has offered up his lawyerin’ skills to help the rest of us better understand the intersection of law and sports. (I can’t think of a better use of that six-figure education.) We’re psyched to have Jeremy’s expertise. Plus, we now have someone to call the next time we’re arrested. Okay, first up: the latest in the labor dispute.

What a week.  For a rabid football fan like me, who also happens to be a lawyer, this week’s draft excitement was made so much more interesting with the simultaneous legal battles and rapid-fire judicial decisions.  But, as I’m pretty sure that people with my taste are a distinct minority, and that most normal people are annoyed by all this legalese, I figured I would try and help the readers here at Steelers Lounge make some sense of the legal side of things at least.

The case currently sharing the spotlight with players learning the dismal future awaiting them, is Brady v. The NFL.  The claim, raised by the several players and draftees in this case, is that the NFL is violating federal antitrust laws.  Specifically, that the League’s system of restrictive contracting (FA, URFA, RFA), salary limitations, and even the draft itself are all illegal.  They are illegal, so the argument goes, because the teams are essentially conspiring to reduce the wages of players and/or limit the competition between teams for a player’s services.

The trick in this case is that when employees are unionized, and they bargain with their employers, the employer is allowed to establish certain restrictions under a collective bargaining agreement that would otherwise be illegal.  This is why the players dissolved the union.  They saw the lockout coming, and they knew the owners would be able to hold out.  By decertifying the union and filing this case, the players made a strong play to gain some leverage over the owners.

The players’ strategy is (probably) to get enough success with this lawsuit to scare the owners into a more favorable negotiating position.  Or, if the owners refuse to negotiate, the players can change the whole system if they succeed in convincing a court that the League is an “unlawful restraint of trade” (lawyer for “illegal monopoly”).

A final verdict would, in football terms, take forever (a recent large antitrust case was US v. Microsoft which was filed in 1998, the trial ended in 2000, it was appealed and finally settled in 2004!) so I really don’t think we have to worry about that … at least for a while.  The players’ short-term goal is clearly to try and regain the advantage from the owners.

The first of the recent opinions concerned a request by the players for a preliminary injunction.  This is lawyer-speak for: a court order to make someone do something or stop doing something even before a trial — in our case, order the owners to end the lockout.  To succeed the players had to show (1) they would suffer irreparable harm without the injunction, (2) they have a fair chance to succeed in their claim, (3) the harm suffered by the players if the injunction is denied would be greater than the harm suffered by the owners if the injunction is granted, and (4) that granting the injunction is in the public interest.

The trial judge found that the players satisfied all of these elements.  Most of her opinion, however, dealt with the owners’ arguments that this case didn’t belong in federal court.  The owners argue that despite the termination of the union, US labor law and the National Labor Relations Board should decide this case.  The judge rejected this argument and this is the decision the owners are appealing.  They have several interesting (to me) theories, but I won’t bore you with the details other than to say they claim that the players are merely posturing.

The next opinion that came down was the same judge responding to a request by the owners to stay (lawyer for: put her previous order on hold during the appeal) the injunction. Not surprisingly, she denied the request.  This request is almost always denied but you have to jump through all the hoops.

Then, shortly after one college quarterback received a death sentence, a three-judge panel on the Court of Appeals granted the owners’ request for a stay.  While I don’t think this spells doom for the players, it certainly took some of the wind out of their sails.  The appeals court will be hearing this on a faster-than-usual time frame so we could get an opinion as early as next week.  I think the stay on their part was reasonable given the circumstances.

When deciding on a stay one of the key questions is: will granting or denying the stay cause more harm?  In this case, granting a stay of one or even two weeks won’t change the players’ position much as the draft is already underway.  Actually, it might help some players who could be free agents after the draft when teams know they have to fill a need and would be willing to fork over ridiculous sums of money (I’m looking at you Mr. Snyder).

On the other hand, if the league has to set-up a new calendar/system/whatever because the lockout is over, and then the original opinion is reversed, there could be some big changes and expenses that go down the drain (say someone signs thinking they are a free agent but actually they’re not).  I suspect the appeals court figured that the lockout had been in place for a while now and couple more weeks wouldn’t do any more harm.

What will the appeals court ultimately decide?  I haven’t the slightest clue.  Remember, this is just an appeal from the order granting the preliminary injunction not the whole case.  Under the law, appeals courts should give trial judges wide discretion in such decisions.  The original opinion is very convincing and I tend to think the players have the better side of the legal argument.  But, injunctions are rare and courts don’t like awarding them so…  That being said, some more cynical lawyers would say it is all just smoke and mirrors and judges will do what they darn well please.

Jeremy is an attorney working in Bethlehem, Pennsylvania. You can email him here.

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  • Steeler Chick

    That’s a great analysis! I’m a legal secretary so I understood most, but not all of it, especially the antitrust aspects. So on that point, thank you. On the other hand, as NFL fans, we don’t care about the legalese! All we know is they are arguing over $9+ billion and we don’t get it. Surely, they know what they give and what they can take to come to an agreement. We want them to sit down, shake hands and do whatever it takes to GET BACK TO FOOTBALL.

  • Steeler Chick

    p.s. Living in the DC area, I love your comment to Snyder!

  • Randy Steele

    Well-written analysis. Wonderfully clear, surprisingly short and to the point. It was even entertaining.
    Thank you.

  • Ron Mexico

    Well stated. Thanks Jeremy.

  • John S.

    Jeremy, have you been able to find a copy of either her order denying the stay or the appellate court granting it? I’ve wanted to look it over, but don’t want to have to pay for PACER to do it.

  • t1mmy10

    great analysis.

    as you alluded to, i’m concerned that both sides stubbornness will result in major changes in the way the nfl operates (no draft, no salary cap, no limits on FA, etc.). some of those things would make the sport not nearly as fun to watch. i don’t have a lot of experience with law, but mike florio at pft has made the point that once you start legal proceedings like these, you never know how they will turn out and the result could really hurt football as we know it.

  • Lounge Legal Dept.

    there is a link in the story for her order denying the stay but i havent found the appellate court opinion yet.

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