Just one day after a series of convivial talks between a handful
of NFL owners and player representatives, both sides were back in
court Friday battling it out over the latest legal hurdle that
threatens to further derail attempts to achieve a comprehensive
By Bob Glauber – Newsday
ST. LOUIS – Just one day after a series of convivial talks between a handful of NFL owners and player representatives, both sides were back in court Friday battling it out over the latest legal hurdle that threatens to further derail attempts to achieve a comprehensive labor agreement.
Three days of talks in suburban Chicago, which included NFL commissioner Roger Goodell, NFL Players Association executive director DeMaurice Smith, and several owners and players, were followed Friday by a series of oral arguments in a hearing before the Eighth Circuit Court of Appeals about whether the NFL’s continuing lockout is illegal.
The NFL appealed the decision of Minnesota-based District Court Judge Susan Nelson to issue an injunction that briefly lifted the lockout in late April. The Eighth Circuit upheld the lockout twice, first in a temporary stay and later in a full stay, in advance of Friday’s hearing.
NFL attorney Paul Clement said before the three-judge panel that the “reason the lockout makes sense is because this continues to be a labor dispute. It can be resolved by terms of a collective-bargaining agreement.”
Clement said he’d be “willing to bet everyone in this room assumes that’s what’s going to happen is that this will ultimately be resolved and will ultimately include a collective-bargaining agreement. If that’s the case, it makes no sense to say that the league can’t use one of the classic tools that labor law gives them to get to a settlement.”
Clement contended that Nelson’s injunction violated terms of the Norris-LaGuardia Act of 1932, which prohibits federal judges from issuing injunctions in labor disputes. Nelson had ruled that because the NFLPA had decertified, it was no longer a union and the NFL could no longer be exempt from antitrust laws.
Players’ attorney Theodore Olson countered that the NFLPA’s decision to decertify was valid, and that the NFL was therefore violating antitrust law by continuing the lockout.
“The league is very familiar with the antitrust laws,” Olson told the court. “The union is not in existence anymore. They can’t engage in collective bargaining. It’s against the law. It’s also against the law for the owners to engage in collective bargaining. The period for labor protection is over.”
Olson accused the NFL of being an antitrust violation “recidivist,” and added that the league’s claim that the NFLPA’s decertification was a sham bordered on “unconscionability.”
Olson said after the hearing that he “hopes the arguments we presented in the briefs and in court will be persuasive.” He also believes players are suffering “irreparable harm” as a result of the lockout.
Clement countered that was not the case.
“I would not concede that players were suffering irreparable harm),” he said. “We have reports that come in on a daily basis of players who say this (lockout) is the best thing that ever happened.”
Many veteran players have said they have enjoyed the time off from rigorous offseason training as a result of the lockout.
After the late-morning hearing ended, presiding Judge Kermit Bye offered a message for attorneys and other officials and players gathered for the proceedings. After saying that the three-judge panel would render a decision in due time, Bye quipped: “We wouldn’t be all that hurt if you should go out and settle this case. That’s up to you.” He then concluded with a warning that if it does come down to a decision by the Eighth Circuit Court of Appeals, “It’s probably something both sides won’t like.”
Jets owner Woody Johnson was the only owner to attend the hearing. Johnson did not comment.
More than 20 players attended the hearing, including Giants defensive end Osi Umenyiora, who is a named plaintiff, Jets fullback Tony Richardson and guard Brandon Moore, Panthers wide receiver Steve Smith and Vikings free-agent linebacker Ben Leber, another named plaintiff.
Leber said after the hearing that both sides have a day in mind that represents a cutoff for negotiations. “The biggest challenge is going to lie with whose day is going to come up first,” he said. “Once it got to this point, I think it was just a good guess based on most corporate labor disputes that nothing was going to get done until the 11th hour. Now it depends on which 11th hour gets here first.”