Appeals court backs NFL, lockout remains in place

May 16 2011 - 5:35pm

MINNEAPOLIS -- The NFL has won another round in the court fight with its players.

The 8th U.S. Circuit Court of Appeals on Monday decided that the league's lockout of its players should stay in place until a full appeal is heard on whether it is legal, which means until at least the first week of June and possibly much longer.

The 2-1 decision mirrored a similar decision last month from the same panel, including a lengthy dissent from the same judge.The appellate court said it believed the NFL has proven it "likely will suffer some degree of irreparable harm without a stay." It also cast doubt on the conclusions of U.S. District Judge Susan Richard Nelson, who ruled April 25 that the lockout should be lifted -- only to have the 8th Circuit panel put her decision on hold four days later.

"In sum, we have serious doubts that the district court had jurisdiction to enjoin the league's lockout, and accordingly conclude that the league has made a strong showing that it is likely to succeed on the merits," the majority wrote.

The 8th Circuit has scheduled a June 3 hearing in St. Louis on the legality of the lockout.

The decision came on the same day that NFL owners and their locked-out players resumed court-ordered mediation behind closed doors. It was the fifth day of talks in front of U.S. Magistrate Judge Arthur Boylan, but the first since April 20.

Hall of Famer Carl Eller, representing retired players in their federal antitrust lawsuit against the league with the current players, said as he left the courthouse that his side was waiting on a proposal from the owners. He said he was prepared to return Monday night if significant progress was made.

"It's been a long day, and we're still working on it," Eller said at the seven-hour mark of the day's talks.

Significant steps toward a new collective bargaining agreement or guarantees of a full 2011 season seemed unlikely.

"We'd like to make progress, but it'll be hard to do. We have to wait to see what happens June 3," Pittsburgh Steelers president Art Rooney II said on his way into the federal courthouse here.

The 8th Circuit's decision had been anxiously anticipated and even though it kept the lockout in place -- in effect, leaving situation between the NFL and its players unchanged -- it is a potential signal of how the two sides will fare once the full appeal is heard.

"The ruling in granting the stay of the injunction means that the NFL owners can continue to not let football be played," NFLPA president Kevin Mawae told The Associated Press.

The majority, from Judges Steven Colloton and Duane Benton, sided with the NFL while Judge Kermit Bye again dissented in favor of the players.

"The district court reasoned that this case does not involve or grow out of a labor dispute because the players no longer are represented by a union," the majority wrote. "We have considerable doubt about this interpretation ... (the Norris-La Guardia Act) does not specify that the employees must be members of a union for the case to involve or grow out of a labor dispute."

The 8th Circuit has been seen as a more conservative, business-friendly venue for the NFL than the federal courts in Minnesota, and legal observers have noted that Colloton and Benton were both appointed by President George W. Bush, a Republican; Bye was appointed by President Clinton, a Democrat.

Bye dismissed the conclusions of his fellow judges, just as he did on April 29.

"Notwithstanding the majority's analysis, the NFL has not persuaded me it will suffer irreparable harm during the pendency of this expedited appeal," Bye wrote. "In any event, there will not be any shift in the 'balance of power' until the appeal is resolved."

And he didn't buy the NFL's argument that it would be unable to "unscramble the egg" -- a reference to the chaos of handling player transactions with not CBA in place.

"The preliminary injunction does not dictate the NFL's free agency rules, or any other conduct in general, outside of the lockout," he said. "Whatever harm may be said to befall the NFL during the pendency of the expedited appeal stands in stark contrast to the irreparable harm suffered by the players."

The majority panel, however, conceded that both sides will suffer "some degree of irreparable harm no matter how this court resolves the motion for a stay pending appeal," and then criticized Nelson sharply.

"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 majority wrote. "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 the lockout prevents free agents from negotiating contracts with any team, but gave no weight to harm that would be caused to the League by player transactions that would occur only with an injunction against the lockout."

The appellate court said it would make its decision quickly, a "circumstance that should minimize harm to the players during the offseason and allow the case to be resolved well before the scheduled beginning of the 2011 season."

Indeed, with training camps just two months away and the first preseason game set for Aug. 8, there is restlessness around the league to go with all the uncertainty.

Players have organized their own workouts to keep in touch and stay in shape, though most of the drafted rookies don't have playbooks and the college free agents who've normally signed contracts by now have no idea where or when they'll go to camp.

Minnesota Vikings free safety Mistral Raymond, a sixth-round draft pick, tweeted Monday that the lockout has left him with "too much free time," so he's decided to go back to school and "get closer" to his degree at South Florida.

Indianapolis defensive end Robert Mathis recently tweeted that he thought NFL Commissioner Roger Goodell has "totally lost his players during this whole process."

The man who signs his checks, Colts owner Jim Irsay, also sounded discouraged in a stream of posts on his Twitter page Monday. Irsay complained about the arguing and the spin, and claimed he and Colts center Jeff Saturday, one of the leading advocates for the players, could get an agreement on cocktail napkins over a long lunch.

Irsay suggested that players and owners fine themselves every week after July 15 there is no new CBA.

"Get out of the courts!" Irsay tweeted.

A lot has happened since the last set of court-ordered talks, none of it encouraging to football fans.

Nelson lifted the lockout on April 25, leading to two somewhat awkward days where players were allowed to return to their teams before the 8th Circuit put her order on hold right in the middle of the NFL draft.

At the same time, U.S. District Judge David Doty is determining the fate of some $4 billion in broadcast revenue he previously ruled was unfairly secured by the NFL in the last round of contract extensions with the networks to use as leverage in the form of lockout insurance. The players have asked Doty to put that money in escrow and for more than $707 million in damages, too.

The two sides also met for 16 days earlier this year before talks fell apart March 11 and the lockout began. Boylan presided over four days of mediation last month with no signs of progress and is scheduled to host the two sides again Tuesday.

Goodell, executive vice president Jeff Pash and four team owners -- Rooney, Mike Brown of the Cincinnati Bengals, John Mara of the New York Giants and Jerry Richardson of the Carolina Panthers -- were on hand with their legal team for Monday's session with Boylan.

The head of the NFL Players Association, DeMaurice Smith, and three other lawyers for the players were present for their side. Linebacker Ben Leber, one of the players listed as a plaintiff in the still-pending federal antitrust lawsuit against the league, also attended. Hall of Famer Carl Eller and attorneys were there representing the retired players.

Bob Berliner, a Chicago attorney who runs the Berliner Group mediation service, called the uncertainty "currency" at the mediator's disposal.

"It should make people more likely to want to come to an agreement, but my guess is it's made them less," he said.

Eller, meanwhile, said he helped organize a meeting of 10 fellow retirees over the weekend and another meeting is scheduled for next week in Chicago with former Bears coach Mike Ditka. Retired players have already joined the antitrust lawsuit against the NFL and the meetings were portrayed as an effort to unify.

"This galvanizes all the different groups, puts aside whatever differences there may have been and concentrates on the commonalities of the issues and shortcomings of the present system," said Michael Hausfeld, an attorney who represents the retired players.

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AP Pro Football Writer Barry Wilner in New York and AP Sports Writers Jon Krawczynski in Minneapolis and Michael Marot in Indianapolis contributed to this report.

 

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