Kallas Remarks by Steve Kallas    –   Not surprisingly, Judge Susan Nelson, in federal district court in Minnesota, refused to grant the NFL a stay of her previous ruling, which ruling held that there could not continue to be a lockout by the owners of the players. As a result of her initial ruling, many players showed up at their respective team’s facilities to work out or get treatment and, while they were allowed to come in, they were not allowed to work out or get treatment. The one exception was Chris Canty of the New York Giants, who did enter and did work out in the Giants’ weight room. However, shortly thereafter, according to published reports, the Giants announced that their weight room would be closed until further notice.


Well, from a legal perspective, the lockout ended when Judge Nelson, on Monday, ruled on behalf of the players and granted a preliminary injunction against the NFL, ending the owners’ lockout of the players. One could certainly argue that the NFL has already violated the spirit and even the letter of the injunction by not allowing players to work out or get treatment. One could also argue that free agency is now in effect and that teams, if they so desired, could make trades, with or without players (for a draft pick, for example) and/or sign free agents.

The NFL has clearly decided to drag its feet, hoping for a better ruling (on the stay of the preliminary injunction order) from the Eight Circuit Court of Appeals.


Well, the biggest issue is that of irreparable harm. Judge Nelson, in her 89-page ruling on Monday, held multiple times that the players are suffering irreparable harm in that they can’t work out, they can’t sign contracts and, most importantly, they have a limited life span in the NFL. It’s simply hard to believe that Judge Nelson would reverse that finding (she didn’t) or even, it says here, that a conservative, “pro-business” court, as the Eighth Circuit has been described, would reverse Judge Nelson’s ruling.

In order to get a preliminary injunction in the first place or, if you don’t like that ruling (see the NFL), to get a stay of that order, the moving party (originally the players, now, on the motion for a stay, the owners) has to show irreparable harm. What you have to show was discussed in more detail previously (see Kallas Remarks, 4/26/11).

But Judge Nelson held on Wednesday (in a 20-page decision) that the owners have not shown irreparable harm. “Again, the NFL argues it will suffer irreparable harm because it is now ‘forced to choose between the irreparable harm of unrestricted free agency or the irreparable harm of more treble damages lawsuits’ [as a result of an antitrust lawsuit, which allows for treble damages]. But no such ‘Scylla or Charybdis’ choice exists here. There is no injunction in place preventing the NFL from exercising under its hoped-for protection of the labor laws, any of its rights to negotiate terms and conditions of employment, such as free agency.”

It’s pretty simple: no irreparable harm, no stay of the injunction.

In addition, as Mike Francesa pointed out yesterday afternoon BEFORE Judge Nelson’s ruling was made public, it’s ridiculous for the NFL to assert that they weren’t ready or able to conduct business since they had announced their 2011 schedule and are conducting the draft today, tomorrow and the next day. Clearly, the NFL took an untenable position both from a legal aspect and from a common-sense approach.


One would think that the NFL would have a better chance of success arguing to a new set of eyes (generally, in the Circuit Court of Appeals, it’s a three-judge panel, but, sometimes, in extreme situations, it can go to just one appellate judge). But it says here that even the Eighth Circuit won’t grant a stay. Remember, there are four issues that must be decided in favor of the NFL to get a stay (see Kallas Remarks, 4/26/11). Not only must the NFL show that they (the teams) would suffer irreparable harm (soundly denied by Judge Nelson), they must also show that the players will not suffer irreparable harm. Judge Nelson has already clearly defined that the players are suffering irreparable harm.

So, for the Eighth Circuit Court of Appeals to grant a stay, it would have to reverse virtually everything in Judge Nelson’s well-reasoned 89-page opinion granting the injunction, as well as her well-reasoned 20-page decision last night denying the motion for a stay.

While you never know what an appellate panel will do, it says here that it will be very hard for the Eighth Circuit to reverse Judge Nelson. And, at least for now, the NFL should be open for business as usual. Whether a maverick team owner decides to do some business (signing a free agent, trading a player for a draft pick) remains to be seen.

We will see what happens.

© Copyright 2011 by Steve Kallas.  All rights reserved.

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