NFL players urge appeals court to lift lockout

Published on June 5, 2011 by AP News     

NFL players urged a federal appeals court Friday to declare the lockout illegal, saying the league had no right to impose a work stoppage that is now approaching three months with no sign of a deal that will save the 2011 season.

In a courtroom packed with some 200 people, including out-of-work players and retirees on folding chairs brought in to handle the crowd, attorneys on both sides of the bitter labor fight got roughly 30 minutes each to make their cases.

The appeal centers on the lockout that began hours after months of labor talks fell apart March 11, the players’ union dissolved and the fight ended up in federal court. The NFL contends the union decertification was a sham meant to gain leverage in the talks and the conflict remains subject to labor law.

The players argue that antitrust laws apply and the lockout put in place under labor law needs to be put on hold, as it was in April by U.S. District Judge Susan Richard Nelson in Minnesota.

“We’re asking for a preliminary injunction for a short period of time,” the players’ counsel, Theodore Olson, said in the hushed courtroom. “We’re simply asking that the laws of the U.S. be respected.”

The arguments came before a three-judge panel of the 8th U.S. Circuit Court of Appeals whose two earlier 2-1 decisions have sided with the league and upheld the lockout. The panel took the arguments under advisement with one judge, Kermit Bye, saying only that a ruling would come in “due course” and he suggested the two sides figure things out.

“We wouldn’t be all that hurt if you go out and settle that case,” Bye said with a smile as he closed the 68-minute hearing. “We will keep with our business, and if that ends up with a decision, it’s probably something both sides aren’t going to like.”

The league is starting to see the effects of the lockout, with furloughs and other recent moneysaving steps. Training camps traditionally start in late July and the first preseason game is little more than two months away.

The hearing has been seen as pivotal in the dispute over how to share the NFL’s $9 billion in annual revenue, and the turnout included NFL Players Association leader DeMaurice Smith and two dozen players, including Green Bay’s Cullen Jenkins, the Jets’ Tony Richardson and Giants standout Osi Umenyiora.

NFL Commissioner Roger Goodell spent Friday in Fort Bragg, N.C., a league spokesman tweeting that Goodell isn’t a lawyer and “wouldn’t have added much to the legal proceedings.” Jets owner Woody Johnson was at the hearing.

Paul Clement, an attorney representing the NFL, waved off a reporter’s question about whether the NFL had the upper hand.

“As we tried to make clear in there, we think the lockout is actually the best way to get players back on the field,” said Clement, who like Olson is a former U.S. solicitor general. “I think people understand that this will be resolved; the resolution will include a collective bargaining agreement. And the fastest way to get there is to get the antitrust laws, which were just a misfit in this context, out of the picture.”

The hearing was sometimes dense as Olson and Clement laid out arguments over Nelson’s April 25 decision to lift the lockout on the grounds that it was illegal and the players suffering irreparable harm. The 8th Circuit – seen as a more conservative, business-friendly venue for the NFL than the federal courts in Minnesota – put her ruling on hold April 29 and reaffirmed its decision May 16.

Judges Steven Colloton and Duane Benton wrote for the majority then that “the league has made a strong showing that it is likely to succeed on the merits.” Bye dissented both times, favoring the players.

Colloton and Benton – appointed by Republican President George W. Bush – were outspoken Friday, peppering Olson and Clement with requests to elaborate on legal points and precedents. Bye, an appointee of President Clinton, a Democrat, offered the opening welcome to the crowded gallery, but remained mostly quiet.

Clement insisted the Norris-LaGuardia Act bars court injunctions in cases arising from a labor dispute, which he maintained is in play, and said Nelson’s decision runs afoul of it.

“Ultimately, collective bargaining is a much better way to resolve these disputes than antitrust litigation,” Clement said.

Olson countered that the act, which dates to the Depression, didn’t apply without organized labor activity – and the players’ union legally dissolved before the court fight, which includes a still pending federal antitrust lawsuit filed by 10 players, including Tom Brady and Peyton Manning.

“The players are perfectly happy to be protected by antitrust laws,” Olson said. He denied the decertification was a negotiating tactic, adding the players are barred from engaging in collective bargaining after their decision.

“They did every step necessary” to dissolve the union, Olson said. “They made a significant choice, which has significant effects under labor law.”

Olson also argued his clients continue to be harmed financially by the lockout. Clement, asked by Bye about that issue, refused to concede Olson’s claim and said “any evidentiary hearing before the court would bear that out” – though he didn’t think it necessary.

The two sides met for 16 days before talks fell apart. A federal magistrate has also held six days of mediation with the two sides, and he was on hand with them again during three days of discussions near Chicago.

Ernie Conwell, a former Rams and Saints tight end, said the players were at the negotiating table all those times but “didn’t have a willing participant” in the NFL. And he scoffed at Clement’s suggestion that players are enjoying more recreational time with the lockout.

“Come on,” said Conwell, now a players’ representative. “There is a lot of stress on these guys not knowing what the future holds for them. And the league understands that – that’s why the lockout is in place.”

Brady said during halftime of a charity touch football game at Harvard that he’s still hopeful that there will be a resolution soon, though he acknowledged that “nobody knows.”

“Everyone is working hard toward a great outcome,” the Patriots quarterback said. “And I’m confident that a lot of reasonable people will come to a very reasonable agreement.”

AP Sports Writer R.B. Fallstrom in St. Louis contributed to this story.

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