Kallas Remarks by Steve Kallas     –   A fascinating, if somewhat strange, legal decision was rendered by the Eighth Circuit Court of Appeals in the Brady class action suit against the NFL this past Friday evening. After Judge Susan Nelson had denied the owners’ request for a stay of her injunction (which ended the lockout), the NFL immediately went to the Eight Circuit and made an “Emergency Motion for a Stay Pending Appeal and Expedited Appeal and a Temporary Stay Pending Decision on the Motion” (title taken from the NFL’s motion papers).

By a 2-1 vote, the Eighth Circuit, in a four-sentence decision, granted a temporary stay. The dissenting opinion is just short of three pages.


The best example, generally speaking, of an emergency motion for a temporary stay (which stay is only until the court can hear the actual motion for a stay pending appeal) is when a prisoner is going to be executed. If he is supposed to be executed late Tuesday night, and the motion is to be heard on Wednesday morning, well, we can all understand why there must be a temporary stay (no temporary stay, the guy is dead when the motion is called the next day).

So what’s the emergency part of this “emergency” motion? That’s hard to say, because the majority’s very brief opinion doesn’t say. Indeed, there is a split among the judges as to what the standard is. Judges Colloton and Benton (the 2 in the 2-1 vote) seem to think it’s an “administrative” stay, i.e., no big deal. The dissenting judge (the 1 in the 2-1 vote), Judge Bye, seems to think there has to be an emergency in the “emergency” motion (that makes sense, doesn’t it?) and goes on to say that, based upon his review of the papers, there is no emergency and no irreparable harm (a requirement for a stay) to the owners.

If the Eighth Circuit judges don’t agree on what must be shown in an emergency motion for a temporary stay, well, that’s not a good thing.


Well, according to Judge Bye (remember, he’s on the losing side in this initial holding), there isn’t any. Judge Bye wrote: “Finally, to justify the granting of the stay itself, the NFL must show it will suffer some irreparable harm by allowing the district court’s order to take effect.” He then goes on to say that, in its motion papers, the NFL “has failed to satisfy me it will suffer any irreparable harm from allowing the district court’s order to take effect.”

That’s pretty strong stuff.

So, what does the majority describe as the irreparable harm that the NFL suffered (or would have continued to suffer if no stay was allowed) from the ending of the lockout? Well, they don’t say.

Again, a strange decision.


Well, these same three judges will now have time to rule on the motion for a stay pending the appeal. If that stay is granted, the lockout will continue.

But it says here that Judge Bye has already struck the first blow for denying the longer stay. He points out that the NFL claimed that to undertake “post-injunction operations” would be “a complex process that requires time to coordinate.” Yet, according to Judge Bye, the NFL undermined its own contention since, in one day, they had already opened for business. As he succinctly stated, “I see little practical need for granting an emergency temporary stay in this non-emergency situation.”

You don’t have to be a lawyer to know which way Judge Bye will probably vote on the longer stay.


We all heard about the reputation of the Eighth Circuit as a “pro-business” court or as a “conservative” court. Well, you hate to hear those things, especially when they appear to be true. If you were told that two of these three judges were appointed by Republican George W. Bush, and the third was appointed by Democrat Bill Clinton, could you guess who was appointed by whom?

Of course you could. The two Bush appointees (Judges Colloton and Benton) voted for the “administrative” stay. The Clinton appointee (Judge Bye, who at least explained his decision in some detail, unlike the majority) voted against the “emergency” stay.


Hard to say (although this writer thinks there should be no stay). You would have to guess with confidence that Judge Bye will vote against the stay and vote against the appeal itself given his statements in his dissent. But it takes two votes for a majority and, right now, the other two judges are wild cards. You can’t tell what they are thinking (does who they were appointed by and the Circuit’s reputation give you a clue? – hopefully not) since they wrote so little and made no finding on either the “emergency” or the “irreparable harm.”

A major factor might just be (in addition to the fact that, to this writer, the NFL teams have suffered no irreparable harm, whereas the players are having their careers adversely affected (the latter is what Judge Nelson found in her preliminary injunction decision)) that the NFL opened for business in a day and was doing business as usual (you know, giving out playbooks, having guys work out in the weight room, getting treatment, etc.) when the lockout was reinstated.

But imagine what the fans and the players, already down on lawyers (and maybe, now, judges as well), will think if the lockout is thrown out again pending appeal. You would then have had a lockout, then no lockout, then a reinstatement of the lockout, then no lockout.




This has really become a 10-billion-dollar spitting contest. The bottom line is that these parties (meaning people on both sides who have the authority to work out a binding agreement) should be in a room every day to try and work out an agreement to settle this dispute. Everybody looks foolish – the commissioner, the owners, the head of the players’ association, the players and, now, the legal system.

Get in a room and work it out.

What a disgrace.

© Copyright 2011 by Steve Kallas.  All rights reserved.

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