Kallas Remarks by Steve Kallas    –   You were hoping that the three-judge, Eighth Circuit panel would not vote along “party” lines. Everyone was told that the Eighth Circuit was a “conservative” court, a court that was “pro-business.” When the judges used two different standards to rule on the NFL owners “emergency” motion for a temporary stay (the majority went with the “administrative” (no big deal) stay, the dissent went with the emergency-means-emergency theory), you knew there might be a problem.

The Eighth Circuit panel then took two weeks to decide the emergency motion for a stay pending the actual appeal. In a 2-1 decision (yes, the two George Bush appointees ruling for the owners, the one Bill Clinton appointee dissenting on behalf of the players), the majority totally rejected the lower court findings of Judge Nelson and, frankly, essentially said that they will rule for the owners on the overall appeal.

Obviously, that’s bad news for the players and, unless a deal is struck, bad news for the fans.


The interesting thing in this case is that, in this writer’s opinion, every coach and general manager (i.e., management) of every NFL team clearly understands the irreparable harm that is being done to players. For example, everyone has talked about how incredibly hard it will be for undrafted rookies to make a team this year when they are unable, right now, to be signed, workout, get playbooks, get treatment, etc


It’s a little simplistic, but virtually all stay and injunction cases turn on who is going to suffer the irreparable harm. You don’t have to be a federal judge to understand how harmful this will be to all players, to some degree, and how career-ending (before their careers even start) it will be to a number of these college kids who didn’t get drafted. Take an absurd case hypothetical: suppose the players were locked out for three years; even a federal judge might then understand that, with the average NFL career being 3.3 years, many careers would be over before they started.

You can’t get much more irreparable than that

Conversely, what is the irreparable harm to the owners? Well, the majority opinion seems to buy into the owners’ argument that they will be irreparably harmed in their bargaining position if a stay is not granted. But, as the dissent correctly points out, if money damages are available, then there is no irreparable harm. Furthermore, according to the dissent, one can’t even tell what claims of irreparable harm the majority followed in granting the stay.

Again, you don’t have to be a federal judge to understand the following: what piece of the $9.2 billion pie do the owners have now and what piece of the $9.2 billion dollar pie will they have after an agreement is reached? Whatever that number is, that’s the number that may (if it’s lower) cause damage to the owners. Of course, the number will probably be higher, resulting in no damage to the owners.

The majority fails to grasp, or doesn’t want to grasp, this simple concept.


It looks bad for the players on this appeal. Unless they are willing to miss a season, they should work the best deal that they can. There is no doubt that the leverage they had after the Judge Nelson decisions has lessened greatly as a result of the 2-1 decision to leave the stay, and thus, the lockout, in effect, pending the outcome of the actual appeal. Given the majority opinion, and, in spite of the common sense and realistic approach set forth in the dissent, the players will probably lose the appeal by the same 2-1 vote.

If Judge David Doty in federal district court in Minnesota gives the players a real piece of the $4 billion TV money (he’s already held that the owners did not look out for the best interests of the players as they negotiated the TV deals), that could set the stage for a long, drawn out battle.

But, as always, it says here that the owners and the players (maybe without the lawyers) should just get in a room and work something out. Even billionaires and millionaires should be able to work out their differences.

Shouldn’t they?

© Copyright 2011 by Steve Kallas.  All rights reserved.

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