The NFL’s lockout remains in place, a federal appeals court ruled Monday. That means the league likely won’t get back to business until at least next month – and maybe much longer than that.
The 8th U.S. Circuit Court of Appeals said the lockout can stay until a full appeal is heard on whether it is legal. That hearing is scheduled for June 3 in St. Louis, before the same panel that issued this 2-1 decision.
The appellate court said it believes the NFL has proven it “likely will suffer some degree of irreparable harm without a stay.” The court also cast doubt on the conclusions of U.S. District Judge Susan Richard Nelson, who ruled April 25 that the lockout should be lifted to save the players from irreversible damage. The 8th Circuit panel put her decision on hold four days later.
“The league has made a strong showing that it is likely to succeed on the merits,” the appellate court majority wrote.
The decision came as NFL owners and players finished their latest round of court-ordered mediation behind closed doors, a session that lasted more than eight hours. This was the fifth day of talks in front of U.S. Magistrate Judge Arthur Boylan, the first since April 20.
Neither side would elaborate on the discussions, citing the judge’s confidentiality order, but they said they planned to resume talks on Tuesday morning. Michael Hausfeld, an attorney for the retired players who joined the antitrust lawsuit against the league, said the players were reviewing a new proposal from the owners.
“It probably is not one that would be acceptable as is, but it clearly opens a dialogue,” Hausfeld said.
Beyond that, both sides stuck to their message.
The owners want to stay out of court, blaming the players for preferring litigation. The players claim they’re only interested in playing and that the owners are preventing them and fans from enjoying the game.
“We have an opportunity to resolve this matter and get the game back on the field, and that really should be our exclusive focus,” NFL lead negotiator Jeff Pash said.
DeMaurice Smith, the head of the NFL Players Association, said the players have prepared for a lockout for two years, suggesting they’re not ready to relent in light of Monday’s unfavorable ruling.
“Right now our guys are out there working out for free, because they dig the game,” Smith said.
Commissioner Roger Goodell, speaking to Buffalo Bills season ticket holders on a conference call, said he thinks there’s “still time” to strike a new collective bargaining agreement.
“But time is running short. It’s time to get back to the table and get those issues resolved,” Goodell said.
NFLPA president Kevin Mawae told The Associated Press he was disappointed with the 8th Circuit’s decision.
“The ruling in granting the stay of the injunction means that the NFL owners can continue to not let football be played,” he said.
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.
“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 earlier on his way into the federal courthouse for Monday’s mediation.
The 8th Circuit’s decision to keep the lockout in place could be a signal of how the two sides will fare in the full appeal. The majority opinion, from Judges Steven Colloton and Duane Benton, sided with the NFL. Judge Kermit Bye 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 8th Circuit has been seen as a more conservative, business-friendly venue for the NFL than the federal courts in Minnesota. Colloton and Benton were both appointed by Republican President George W. Bush; Bye was appointed by President Clinton, a Democrat.
Bye dismissed the conclusions of his fellow judges, just as he did on April 29 in dissenting against a temporary stay. 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 no 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,” Bye said.
The majority, however, said 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.”
Still in the courts is a separate but related matter. 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.
Goodell, 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.
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.
Eller helped organize a meeting of 10 fellow retirees over the weekend and another one is scheduled for next week in Chicago with former Bears coach Mike Ditka, sessions portrayed as an effort to unify their push for better benefits, at the NFL’s request.
“That’s kind of the first hurdle. Something that they want from us and something that we need to do,” Eller said.
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