Tom Brady et. al v. The National Football League Stay Decision

Just a quick post because, well, we are sometimes a football blog here at Emptywheel you know, and we have football news! The NFL draft starts tomorrow night, so one and all can come back and yammer about the draft and who your team did or didn’t draft. But, more importantly right this moment is the decision just entered by Judge Susan Nelson of Minnesota District Court to deny the stay of her decision on Monday lifting the lockout imposed by the owners collectively acting as the National Football League.

Judge Nelson hit on, and reinforced, many of the points made in her 80 page decision entered Monday, but today’s order is a nice compact 20 pages and I thought it worth taking a look at.

Here is the full 20 page order denying the NFL’s stay request.

After noting that the NFL bogusly attempted to use a self serving low burden for getting their stay entered, Nelson clobbered them again:

But this Court need not address this matter further because even under the lenient standard that the NFL proposes, the League still is not entitled to a stay pending appeal. Even if a lesser showing on the merits is permissible, the NFL would have to compensate for that lower showing with a strong showing of irreparable harm to it pending the appeal (and, more precisely, a strong showing of its harm compared to what a stay would inflict on the Players).

Here, the NFL has shown no such injury resulting from or in any way related to this Court’s Order, which, importantly, only enjoins the lockout. The NFL argues that it will suffer irreversible injury and irreparable harm–not because the lockout has been lifted–but by the potential signing of contracts between owners and players in a free- agency market. (Doc. No. 103, at 11-12 (claiming that “the Order in this case may entail the start of a free-agent signing period in the NFL–a period in which any structure or set of rules, even an agreement among the member clubs on the number of games that should make up a season, is subject to antitrust challenge ”).) That argument is based on the incorrect premise that this Court’s Order somehow enjoined the restraints on player free agency alleged to violate the antitrust laws in the Brady Plaintiffs’ Complaint.

Ouch. Well, okay, how about the Leagues other points? Judge Nelson didn’t like those either:

Moreover, as the Brady Plaintiffs point out, a stay of the injunction and a continuation of the lockout would inflict financial harm upon the League, which stands to lose approximately $1 billion before a single game is even cancelled. (Doc. No. 111 (Decl. of Richard A. Berthelsen) ¶ 3, Ex. B.) As to the notion that, without a lockout, the “competitive balance” of the NFL will be jeopardized, Plaintiffs counter that in 2010, the last season covered by the expired CBA and White Stipulation and Settlement Agreement (“SSA”), the League operated without a salary cap and there was no harm identified to competitive balance, as perhaps best exemplified by the fact that two small market teams, the Green Bay Packers and the Pittsburgh Steelers, played in the Super Bowl. (Id. ¶ 4.)

Further, the League’s own advanced planning belies the likelihood of any descent into chaos such as they now envision, absent the imposition of a stay. On April 13, 2011 – during the lockout – the NFL announced the complete pre-season schedule for 2011, and released the regular season schedule one week later.

Heh. Hilariously, the League also had the temerity to claim that the players (you know their opponents who do NOT want a stay) would be harmed without a stay. Judge Nelson didn’t think much of that either:

Any such argument fails to acknowledge this Court’s ruling. The lockout plainly raises issues of harm beyond those that are compensable by damages. This Court addressed, at substantial length, the irreparable injuries that the Players are presently incurring, and have been incurring, since the League locked them out on March 12, 2011. This Court came to that conclusion based on the extensive affidavit evidence submitted by the Brady Plaintiffs. The NFL offered little, if any, evidence to directly rebut the Players’ affidavits, either in response to the motion for a preliminary injunction, or here. Moreover, the NFL’s argument assumes the Eighth Circuit will rule before the season begins. In the absence of a motion seeking an expedited appeal, that seems unlikely.

Accordingly, the balance of equities tilts indisputably in favor of the Brady Plaintiffs. A stay would re-impose on the Players precisely the irreparable harm that this Court found the NFL’s lockout to be likely inflicting on them since March 12.

After again noting that the NFL is premising their stay request by substantially arguing irreparable harm on issues that were not even in front of the court, much less elements of Monday’s decision from which they could appeal, the court concluded by telling the NFL that their argument that “public interest” would be served by letting the league trample the players is complete horse manure (and it is):

The NFL has had ample opportunity to serve and promote the public interest in encouraging the collective bargaining process in the past, but in this present context, there is no such process to encourage. As this Court suggested in its Order, there is no public interest in permitting the NFL to continue to enjoy the benefits and protections of labor law–antitrust immunity and the right to lock out the Players–without the Players being able to enjoy their corresponding rights of collective bargaining and the right to strike.

In contrast stands the public interest in the enforcement of the Sherman Act and the public interest in a professional football season. These are actual, “live” interests, and they favor the denial of a stay of this Court’s Order.

Well, okay then. That is a pretty thorough butt whipping laid down by Judge Nelson. Now the league will seek an accelerated appeal and emergency stay in the 8th Circuit. The 8th has a reputation for being pretty business friendly, so the NFL will find it a much more friendly forum. That said, it is far from clear the NFL will get their stay; Judge Nelson left quite a record supporting her decision, and it is pretty compelling. The 8th Circuit will have to do some fancy footwork to overcome what Nelson has ordered here. The 8th may be generally fairly business friendly, but it is a good bet they are football fans too; I would not be shocked if they surprised the pundits and also declined the stay application.

  1. orionATL says:

    so if a judge can so soundly and roundly kick the cans of the owners way downfield,

    how come other federal judges can’t kick the pervasive, lying legal sophistry of the united states dojustice way downfield?

    the owners’ arguments, and the doj’s state’s secrets arguments, seem cut from the same sophistical cloth.

    • emptywheel says:

      Because this is important: it’s our bread and circuses.

      Baseball, football, they’re important to maintain the illusion of rule of law so we continue to be distracted by them. But actual governance? Nah.

  2. bobschacht says:

    B-b-but, you see, the NFL owners are employers, so, ya know, we gotta treat’em real nice! Those small business owners are the engine of employment, ya know, gotta treat’em right! Maybe give’m some tax breaks or somethin’. And ya know we can’t give them gol-dern players collective bargaining rights! That’d ruin everything! I’m sure we can count on the Roberts Court to fix things up for us real nice, ya know. /s

    Bob in AZ

    Psssst. I done saw Gabriel Giffords *getting on a plane* today. All by herself. On her own two feet. Gonna see her husband blast off in FL. Best news I seen all day.

  3. Peterr says:

    Sally Jenkins had a good piece in the Washington Post Tuesday (with emphasis in the original):

    The best way to think about the old NFL collective bargaining agreement is as a beautiful magic cloak. It allowed the owners a kind of charmed invisibility when it came to collusion, to artificially controlling competition, to inhibiting player movement, to making their costs certain, and generally suppressing every free market principle. The fact that they had the consent of players via collective bargaining created a non-statutory labor exemption — it gave the owners legal cover for the socialistic anti-competitive way they operate. It also helped them maintain the goodwill of the paying public. Take away that magic cloak, and they look like pirates.


    [The owners] claim to be confident they will win an appeal, and get a different answer from the U.S. Court of Appeals for the Eighth Circuit, because 13 of the 16 judges were nominated by Republican presidents, and therefore might be conservative and pro-business.

    Once again, they have miscalculated. The fact is, getting Nelson overturned will be as difficult as getting a call on the field overturned by instant replay — there has to be incontrovertible evidence the ruling was wrong. But that’s not their only problem. What makes the owners think that they are in a position to appeal to conservative, pro-business instincts?

    The fact is, the owners have now placed themselves in the ludicrous legal position of arguing strenuously against free market principles before conservative judges.

    That would make it kind of tough.

  4. orionATL says:

    [email protected]

    panem et circenses, indeed.

    at comment #34 in your 4/25 post on doj’s gag order on gitmo attorneys,

    we find out how some federal judges think (actually, lack acuity in thinking) about terror suspects appearing before them:

    [ harpie

    April 26th, 2011 at 6:43 am 34

    Thanks, all, for a very informative thread.

    ProPublica continues to connect their previous Guantanamo reporting with the new WL GTMO documents, in this case, about the DC Courts, habeas and indefinite detention.

    Gitmo and the Federal Judiciary: Our Coverage of the Habeas Lawsuits; Susan White; ProPublica; 4/25/11 ]

    ( )

    in susan white’s very brief article cited by harpie, there is this cite from a revealing discussion by three federal judges about terror detainees:

    here is the quote that floored me:

    [ The judges also say the risk in ordering a detainee to be released seems much greater than in past conflicts, because a return to the battlefield is not just a return to traditional frontlines but to possible attacks on civilians.

    “How confident can I be that if I make the wrong choice that he won’t be the one that blows up the Washington Monument or the Capitol?” Lamberth said… ]

    how could any judge say what lambeth said?

    if a person before my court is there for murder (but the gods know him innocent), should i, having listened to the contradictory evidence, sentence him to loss of freedom or life on the principle ground

    that he MIGHT go out and kill someone else?

    when he is not the murderer in the first place?

    personally, i think a judge who said what lambeth said should not be allowed to rule on terror suspects.

    (i guess this is why judges don’t grant interviews.)

    in my view, a fair and competent judge would never choose his own “worries” in preference to the facts and the law presented to him.

    doing so is the very definition of the rule of men, not of law.

  5. bmaz says:

    Whoa, I come home and there are NO people here jabbering about the draft?

    And you call this a football blog??

    For shame, people, for shame!

    The Cardinals needed a quarterback, and drafted a cornerback. Bout right; they have always missed by I–I this much. Kind of like Maxwell Smart. Without the smart part…..

    • bobschacht says:

      Well, I guess they decided that the next 3 QBs drafted (picks 8, 10, 12) were multi-year projects, and they needed help at CB *immediately*. A dubious proposition, perhaps, but they were weaker at CB last year than they were supposed to be. Still, I’ll be interested to see what excuses they offer. And waiting to see if they have any deals cooked up for a more “seasoned” QB. After all, when they got Kurt Warner, he’d already been around the block a few times.

      Bob in AZ

      • bobschacht says:

        My guess was basically confirmed in the newspaper today. Besides which, the CB they drafted was judged by many (but not, evidently, by the teams picking #1,2,3,& 4) to be the best athlete in the draft, as well as a Cardinal defensive weak spot. Also, another article, confirming that the Cards are still angling to sign a more seasoned QB, like Marc Bulger, who seems to be at the top of their list, IIRC.

        Bob in AZ

    • john in sacramento says:

      Round 2 they take RB, Ryan Williams. WTF, don’t they still have Hightower and Beanie Wells on the roster?

      Isn’t Mallet still on the board? (he must have major issues)

      Vikes take Ponder in the 1st; a reach, but have to, thanks to the Tarvaris Jackson fiasco

  6. rosalind says:

    bmaz sez: “The 8th Circuit will have to do some fancy footwork to overcome what Nelson has ordered here.”

    and the 8th bust a move: Appeals court restores NFL lockout

    The 8th U.S. Circuit Court of Appeals in St. Louis granted the league’s request for a temporary stay of the injunction issued Monday that ended the 45-day lockout. Now arguments will be heard on whether that order should be overturned altogether.

    “The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal,” the appeals court said.

    • bmaz says:

      Yeah, this is not a real stay, it is an administrative stay to maintain status quo until the stay is formally considered and ruled on next week. Still, probably good indication they are preparing their fancy footwork as you describe.