Idiot Boxer
Footballguy
Well that was a logical and well articulated article and I must say, his insults have changed my opinion completely.
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Labor Dispute Master Thread (2 Viewers)
- Thread starter Da Guru
- Start date
cobalt_27
Footballguy
It's just a sloppy characterization, but I think when you get so steeped in your own dogma, it's not uncommon to be blind to the other side's position(s).
fatness
Footballguy
fatness
Footballguy
cobalt_27
Footballguy
While the players have obviously been screwed, I don't think the owners left 700 million on the table, let alone 700 million of the PLAYERS DOLLARS. There's no way in heck the owners paid that much money for a POSSIBLE (not even gaurenteed at that time) loan of 4 billion or so, that would have had to be repaid in just 4 or 5 years.
That figure doesn't even begin to jive. It's beyond absurd. It equates to something like 18% interest...PAID AHEAD OF TIME, even if the money isn't loaned? I expect the real figure is less than a 1/3 of that.
That figure doesn't even begin to jive. It's beyond absurd. It equates to something like 18% interest...PAID AHEAD OF TIME, even if the money isn't loaned? I expect the real figure is less than a 1/3 of that.
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Insomniac
Footballguy
There are plenty of people who believe there won't be a season if the owners win.But let's suppose that the owners are allowed to keep their lockout. At that point the players have the option of completely surrendering and taking the type of terrible deal you propose or going to trial. If they win they get treble damages. Even most of the owner fan boys here admit the legal merits are completely on the side of the players. This probably gives the players an 80% chance of winning in court. (OJ got off maybe the owners could win - the merits aren't always the decisive factor) There are some serious problems with your analysis. Exactly who is going to reach an agreement of any kind with the owners? Nobody has the right to negotiate without the players voting to re-certify. Is DeMaurice Smith going to run up the white flag and accept a deal like you propose? He probably has a hard time getting any kind of job after that. Are Brady and Manning et al just going to give up because they miss a few paychecks? How will the Brady's make ends meet?Who's going to organize a campaign to re-certify? How could they prevent Smith, Brady, Manning et al from going to court to delay it for months?It's possible the players just give up without a fight. That's certainly the history of the NFLPA which is why they have the worst deal of any of the pro leagues.
cobalt_27
Footballguy
Can you describe how you quantified this?
cobalt_27
Footballguy
Completely untrue.
The players are suing the owners. They can negotiate a settlement of that lawsuit, and the settlement can include the terms of a new CBA.
Insomniac
Footballguy
This post was an excellent response even though I disagree with much of it.The NFL players didn't have any negotiating powers until they won the McNeil suit. The owners needed them before then too but it didn't do Ed Garvey and the "No Freedom No Football" campaign in 1974 much good.
I'm not sure the "Federal Baseball" exemption has done much good for the owners since the Flood decision. The reason the MLBPA has done so much better than the NFLPA is they had better leadership and much more unity. The MLB owners also had worse leadership and less unity than the NFL owners.Even in a "totally free market" I doubt the NFL players would get much more than 60% of the total revenue.
If the players decertified forever would that be OK?
Who picks the arbitrator?
I agree 100% here. Really, it's going to take another 9 months for them to make a decision?
This is a good idea. Too bad there's a better chance of one of us hitting the lottery this week than there is to either side agreeing to it.
Well I think the owners took less $ but any attempt to honestly figure out how much less is doomed. Lawyers aren't limited to finding just "honest" figures
I disagree completely. The owners have provided no credible evidence that their profits or profit rate dropped.
Why are you assuming that an anti-trust exemption would result in any type of government oversight? It never did in any cases I heard of.For Congress a $9 billion industry is small potatoes.
Insomniac
Footballguy
I think it's really doubtful that the people involved in the Brady suit will just give up if the Appeals Court allows the lockout. They're much more likely to go to trial than accept the type of deal proposed by the pro owner types here. Certainly Smith can't quit. So if the Brady Class doesn't want to settle after losing 1 round how is anyone else going to force a settlement?
dparker713
Footballguy
I know this is how labor law works, but damned if this doesn't show how the decertification really is a sham.
Idiot Boxer
Footballguy
I imagine that the owners will have to modify the deal they last offered and that the players who aren't named Brady or Manning and who can't afford to miss paychecks are going to apply some pressure. When the parties have roughly equal bargaining power, a roughly fair deal can/should be struck. If the lockout is disallowed, we will have football, but no CBA because at that point the players will have far too much negotiating power and the CBA won't be 'fair'. The owners will have to gain negotiating power in some way, likely by implementing rules that survive competitive scrutiny that negatively impact the players. (or organically find them. Elimination of salary floor and minimum salary will not sit well with some players). Problem is, will that point be too far down the road that the Jerry Jones and Danny Snyders won't want to turn back.If the lockout is allowed, the lower-tier players will place some pressure on the Brady/Mannings to settle. The Owners will have to put together a fair-ish deal because they know if they don't the players will (a) press their appeal forward (and potentially prevail) and/or (b) the players will strike at some point if the CBA struck isn't reasonably fair.
Sure, if the NFL had the appropriate trust exemptions, than it wouldn't matter. In the absence of those exemptions, decert is a nuclear weapon, and unfair (IMHO). Do you see unions in ANY other type of industry using this tactic?
How about tha ^^$% NLRB? I mean...what do they acutally DO to promote healthy labor relations?????
Anything that impacts the tax coffers by over a billion dollars is hardly small potatoes. Congress regularly takes action regarding businesses with far less impact than this. (To be fair, they also ignore stuff that's much bigger than this, so I'm not sure how much weight either of our arguments holds on this part.)Most true exemptions also call for gov't oversight. Utility companies and railroads have enjoyed exemptions nearly as long as anti-trust laws have existed, for obvious and legitimate reasons. They have enjoyed governmental oversight in the form of regulators nearly as long, needing permission to raise rates. Ironically, in many cases, specific actions have been taken to make sure that unions working for them could not strike, nor could companies shutdown/lockout!)Football, and all pro sports really, would need far less oversight
From the other thread:
Adam Schefter posted this on his Twitter. This article is pretty good about the angles both sides are taking.
Experts: Players' case is stronger, but NFL could win appeal
By Clark Judge
CBSSports.com Senior Writer
May 12, 2011Tell Clark your opinion!
It's been two weeks since the Eighth Circuit Court of Appeals granted a temporary stay of an injunction that lifted the NFL lockout, which means it's been two weeks since players were allowed to return to work. The expectation then was that the court would follow with an immediate ruling on a permanent stay, but that didn't happen.
In fact, it's still not happening.
There has been no ruling, no permanent stay and no end to the lockout -- no nothing since the court swung into action two weeks ago. I wish I knew what that meant.
I don't. But I know someone who does. In fact, I know two experts on the subject. So I called them. They are Stanford Law professor William Gould, who recently served as chairman of the National Labor Relations Board (NLRB) and who mediated the 1992 and '93 salary disputes between the Major League Baseball Players' Association and Major League Baseball Players Relations Committee; and University of Toledo professor Geoffrey Rapp, who clerked for Judge Cornelia Kennedy at the U.S. Court of Appeals for the Sixth Circuit, was a teaching fellow at Yale Law School and did considerable research on the economic aspects of sports law.
I asked the questions. They provided the insight into what is becoming an increasingly complicated and unpredictable subject. And what they had to say is that while they believe the players have the stronger case, they won't discount the possibility of the NFL winning on appeal.
Question: It's been three weeks since the Eighth Circuit Court of Appeals granted a temporary stay of Judge Susan Nelson's injunction. The feeling then was that a ruling on a permanent stay would follow, but so far we have nothing. My question is twofold: A) Are you surprised nothing has happened? And B) what, if anything, should we read into it?
Gould: It does surprise me, first of all. I expected a ruling at an earlier point, but I think what it may say is that the court is deeply divided on this issue. It was a very persuasive and, I would say, stinging short dissent by Judge Kermit Bye, [evidence that] the court was divided on the question of a temporary stay. My sense would be that they [the judges] may well want to get a better sense of the merits of the dispute through the briefing by the parties before they make a ruling on this. Their reversal of Judge Nelson was so dramatically at odds with the case authority that she and the dissenting judge had cited. My sense is they're deeply divided and may have temporarily postponed this until they can a better sense of the merits.
Rapp: In a way I'm surprised because so many people expected a rather quick decision on whether to permanently stay the injunction and because one of the judges dissenting from the decision to grant the temporary stay indicated that he thought they would be able to reach a decision in short order on the question of a permanent stay. All signs pointed to them doing that relatively quickly. On the other hand, I'm not surprised because I think the court might want to take its time to make sure it gets this one right, given the high level of attention paid to this case by the media and the public at large and what, I think, are likely to be the important consequences of this "stay decision" on who has the upper hand if the two sides decide to return to the negotiating table.
Question: With each day that passes, there's a feeling that we won't hear from the judges until the plaintiffs and defendants appear before the court on June 3 -- that, essentially, the temporary stay is more like a permanent stay. What do you think?
Gould: At this point, it wouldn't surprise me ... given that we're now about three weeks away from June 3. Having come this far it wouldn't surprise me.
Rapp: It starts to take on the flavor of a permanent stay. The big difference, though, would be if the court were to grant a permanent stay that would carry through until such time as it renders a decision on the merits of the NFL's appeal of the district court's decision. So June 3 is the next date that we're all looking at, but it might take the court many weeks, maybe even months, to issue a final decision on whether to overturn that injunction. If it were to grant a permanent stay, the NFL would be able to enforce a lockout all the way up until that point. That the stay is still temporary suggests to me that it might take until June 3 to know whether the permanent stay is going to be granted or not. But this is not likely to carry over throughout the whole decision-making process on the underlying substance of the appeal.
From the judges' perspective, I think there's a decent chance we'll [get] some published decision about a permanent stay. We still have three weeks or so, so I think there's a decent chance they're putting the finishing touches on something right now, and we'll be seeing it next week or the week after.
Question: Whether or not that happens, what should we read into what has happened -- which is nothing -- since the court's ruling on April 29?
Gould: I would read two things into it: 1) That the court is divided and is trying to get its arms around the case; and 2) that, given the fact that the temporary stay is working against the interests of the plaintiffs here, that the grant of the temporary stay in the first instance manifested some skepticism about the plaintiffs' case.
Rapp: We knew there was probably going to be at least one vote against a permanent stay. That we haven't seen a decision so far might suggest that one of the judges who voted in favor of the temporary stay isn't quite ready to go along with the permanent stay, and they're trying to decide who's going to ultimately prevail on the question of the permanent stay. That shows that maybe there are good arguments being made within the chambers on both sides and that the judges are taking their time to get this one right.
Question: I assume you've studied the case. The NFL's point is that this is a labor dispute, not an antitrust case. Agree or disagree?
Gould: That's a very big question. Their [the NFL] argument is that this is a labor case, not an anti-trust case, and the plaintiffs' argument is the other way around. I would tend to disagree with the NFL. I think all of the authority and judicial precedent with regard to the tactic -- and I call it a tactic, in contrast to the plaintiffs -- is in favor of the plaintiffs. The first argument put forward by the NFL -- i.e., that the Norris-Laguardia Act of 1932 precludes the court from issuing an injunction against a lockout -- I think is in error. But what the Court of Appeals for the Eighth Circuit will think is another matter.
Rapp: I think the district court had it right in its response to that point. Once there's no union there's no labor dispute anymore. And labor laws exist to protect the relationship between unions and employers. But, from all indications, the union has decertified and is no longer acting as a union, engaging in exclusive negotiating with the employer -- which means there's no labor relationship left to protect, and I don't think the NFL is going to win that argument.
Question: The NFL has centered some of its case on the NFLPA's decertification, saying it is "a sham" and nothing more than a tactic. I have friends in the legal profession who tell me that argument won't sell with judges. What is your opinion: Is decertification and the question of its validity a big deal or not?
Gould: Thus far, the judges who have looked at this and the regional directors of the NLRB who have looked at this have not found merit in the NFL's position. This is a game that is being played by both sides. The union says it is not a tactic; the owners say it is. But the last time the union did this, the owners said, "We'll only settle the anti-trust dispute if you will agree to come back as a union." That is the reality; that is the sine qua non for any settlement of this dispute. Both sides are being disingenuous, and the case law thus far is on the union's side.
By the way, this is something that hasn't surfaced thus far -- and we'll see when the plaintiffs file their briefs next week, and Judge Nelson paid no attention to this -- but the collective bargaining agreement precludes the NFL's assertion that it is "a sham." Are you aware of that? It's a complicated argument unto itself, but that's the bargain they made. In 1993 when the consent decree was fashioned, the NFL said, "We're not going to agree to enter into a consent decree and settle this anti-trust case unless you agree to come back into existence." And the union said, "We're not going to come back into existence unless you agree not to assert the next time that we do it that it's not a sham."
Rapp: I don't think it's a big deal. I think the NFL, while being creative, ultimately was wrong on the issue, and the judge recognized that. You could have a situation where the decertification was "a sham," but what that would require the NFL to show is that the players' union is still acting as a union -- [that] it is still acting as the exclusive bargaining representative of the employees. To me, everything I've seen, that clearly is not the case. This was a legitimate decertification, a high-risk move for the players, but they did it. The fact that it's a tactic doesn't mean it's invalid. All sorts of things in labor management relations and in litigation are tactical in nature, but as long as they are executed properly and no fraud is being perpetrated on the court, they are legally valid maneuvers, and decertification here seems to me to be a legally valid maneuver.
Question: There's a feeling that if the NFL is going to win a judgment on appeal that the Eighth Circuit gives it a reasonable shot -- particularly because of its conservative makeup. Bottom line: Do you think the NFL wins on appeal?
Gould: I can't give you a specific odds figure because that would be pure speculation on my part. I do think that now, in the year 2011, this is the most conservative court of appeals in the United States. As you may know, I was chairman of the National Labors Relations Board involved in the baseball strike, and I recall that many or our orders going up to the court of appeals -- when it was the Eighth Circuit and when it was much less conservative than it is today -- were reversed. Now, no one knows what these judges will think, but I think the owners have the best possible forum for this case, from their perspective.
Rapp: I'm kind of torn on this. I think the NFL's argument about the "sham" and their argument on jurisdiction, which lost at the district court, are going to lose at the appellate court. But the one tough issue for the players is the requirement for irreparable harm, which is necessary to grant an injunction. The argument that was made before the district court, which it accepted, was that for some individual players they might be in a position where they want to negotiate contracts right now, and they're unable to do so. And the uncertainty around how NFL contracts are executed might mean that we never knew for sure how much they would've gotten paid. There might be some players who get injured and, as a result, have shorter careers. And those, of course, would be serious things for those individual players, but I guess the question for me is: Why couldn't money make up for those harms? Because if money can make up for it, then it is a reparable harm instead of an irreparable harm, and not a proper basis to grant an injunction.
[On the question of the "irreparable harm" being damaged by comments by those like Wes Welker, Ray Lewis and Reggie Bush,] the difficulty players have is that they have hundreds of individuals who might share their thoughts and speak in ways that overall are probably not in the best interests of the players. The owners, by contrast, have fewer individuals to control, and those individuals tend to be more sophisticated and have a lawyer sitting next to them when they are talking.
So, certainly, it undermines the players' position a little bit in the eyes of the public, but the issue of irreparable harm is one where the court is going to look at the record, look at the evidence the district court had and decide based on that -- not based on stray comments by one or two players at issue that appear in the media.
The real question for irreparable harm is if the players don't have an injunction in place, and they're litigating their anti-trust case while the NFL is enforcing the lockout, is there some harm the players would suffer that awarding them money at the end of the antitrust case wouldn't compensate them for? The district court thought there was. I'm not sure the appellate court will buy that argument.
The judges will look closely at what the district court found were the indications of irreparable harm. Appellate courts tend to defer to district courts in a lot of ways when the district court is hearing witnesses and reading the full record. The appellate court will look at what the district court had to say, and they're not likely to go off on their own and look at evidence that wasn't presented at the district court. It's not about what's been said since; it's about whether when the district court granted this decision it got the law right.
This is going to be a close call because while the NFLPA should clearly win two of the three big issues they won below [in the district court], on that last one -- which is the hardest one for them -- I'm not sure they'll get a positive result. As long as the NFL wins that argument, the injunction would be vacated.
Adam Schefter posted this on his Twitter. This article is pretty good about the angles both sides are taking.
Experts: Players' case is stronger, but NFL could win appeal
By Clark Judge
CBSSports.com Senior Writer
May 12, 2011Tell Clark your opinion!
It's been two weeks since the Eighth Circuit Court of Appeals granted a temporary stay of an injunction that lifted the NFL lockout, which means it's been two weeks since players were allowed to return to work. The expectation then was that the court would follow with an immediate ruling on a permanent stay, but that didn't happen.
In fact, it's still not happening.
There has been no ruling, no permanent stay and no end to the lockout -- no nothing since the court swung into action two weeks ago. I wish I knew what that meant.
I don't. But I know someone who does. In fact, I know two experts on the subject. So I called them. They are Stanford Law professor William Gould, who recently served as chairman of the National Labor Relations Board (NLRB) and who mediated the 1992 and '93 salary disputes between the Major League Baseball Players' Association and Major League Baseball Players Relations Committee; and University of Toledo professor Geoffrey Rapp, who clerked for Judge Cornelia Kennedy at the U.S. Court of Appeals for the Sixth Circuit, was a teaching fellow at Yale Law School and did considerable research on the economic aspects of sports law.
I asked the questions. They provided the insight into what is becoming an increasingly complicated and unpredictable subject. And what they had to say is that while they believe the players have the stronger case, they won't discount the possibility of the NFL winning on appeal.
Question: It's been three weeks since the Eighth Circuit Court of Appeals granted a temporary stay of Judge Susan Nelson's injunction. The feeling then was that a ruling on a permanent stay would follow, but so far we have nothing. My question is twofold: A) Are you surprised nothing has happened? And B) what, if anything, should we read into it?
Gould: It does surprise me, first of all. I expected a ruling at an earlier point, but I think what it may say is that the court is deeply divided on this issue. It was a very persuasive and, I would say, stinging short dissent by Judge Kermit Bye, [evidence that] the court was divided on the question of a temporary stay. My sense would be that they [the judges] may well want to get a better sense of the merits of the dispute through the briefing by the parties before they make a ruling on this. Their reversal of Judge Nelson was so dramatically at odds with the case authority that she and the dissenting judge had cited. My sense is they're deeply divided and may have temporarily postponed this until they can a better sense of the merits.
Rapp: In a way I'm surprised because so many people expected a rather quick decision on whether to permanently stay the injunction and because one of the judges dissenting from the decision to grant the temporary stay indicated that he thought they would be able to reach a decision in short order on the question of a permanent stay. All signs pointed to them doing that relatively quickly. On the other hand, I'm not surprised because I think the court might want to take its time to make sure it gets this one right, given the high level of attention paid to this case by the media and the public at large and what, I think, are likely to be the important consequences of this "stay decision" on who has the upper hand if the two sides decide to return to the negotiating table.
Question: With each day that passes, there's a feeling that we won't hear from the judges until the plaintiffs and defendants appear before the court on June 3 -- that, essentially, the temporary stay is more like a permanent stay. What do you think?
Gould: At this point, it wouldn't surprise me ... given that we're now about three weeks away from June 3. Having come this far it wouldn't surprise me.
Rapp: It starts to take on the flavor of a permanent stay. The big difference, though, would be if the court were to grant a permanent stay that would carry through until such time as it renders a decision on the merits of the NFL's appeal of the district court's decision. So June 3 is the next date that we're all looking at, but it might take the court many weeks, maybe even months, to issue a final decision on whether to overturn that injunction. If it were to grant a permanent stay, the NFL would be able to enforce a lockout all the way up until that point. That the stay is still temporary suggests to me that it might take until June 3 to know whether the permanent stay is going to be granted or not. But this is not likely to carry over throughout the whole decision-making process on the underlying substance of the appeal.
From the judges' perspective, I think there's a decent chance we'll [get] some published decision about a permanent stay. We still have three weeks or so, so I think there's a decent chance they're putting the finishing touches on something right now, and we'll be seeing it next week or the week after.
Question: Whether or not that happens, what should we read into what has happened -- which is nothing -- since the court's ruling on April 29?
Gould: I would read two things into it: 1) That the court is divided and is trying to get its arms around the case; and 2) that, given the fact that the temporary stay is working against the interests of the plaintiffs here, that the grant of the temporary stay in the first instance manifested some skepticism about the plaintiffs' case.
Rapp: We knew there was probably going to be at least one vote against a permanent stay. That we haven't seen a decision so far might suggest that one of the judges who voted in favor of the temporary stay isn't quite ready to go along with the permanent stay, and they're trying to decide who's going to ultimately prevail on the question of the permanent stay. That shows that maybe there are good arguments being made within the chambers on both sides and that the judges are taking their time to get this one right.
Question: I assume you've studied the case. The NFL's point is that this is a labor dispute, not an antitrust case. Agree or disagree?
Gould: That's a very big question. Their [the NFL] argument is that this is a labor case, not an anti-trust case, and the plaintiffs' argument is the other way around. I would tend to disagree with the NFL. I think all of the authority and judicial precedent with regard to the tactic -- and I call it a tactic, in contrast to the plaintiffs -- is in favor of the plaintiffs. The first argument put forward by the NFL -- i.e., that the Norris-Laguardia Act of 1932 precludes the court from issuing an injunction against a lockout -- I think is in error. But what the Court of Appeals for the Eighth Circuit will think is another matter.
Rapp: I think the district court had it right in its response to that point. Once there's no union there's no labor dispute anymore. And labor laws exist to protect the relationship between unions and employers. But, from all indications, the union has decertified and is no longer acting as a union, engaging in exclusive negotiating with the employer -- which means there's no labor relationship left to protect, and I don't think the NFL is going to win that argument.
Question: The NFL has centered some of its case on the NFLPA's decertification, saying it is "a sham" and nothing more than a tactic. I have friends in the legal profession who tell me that argument won't sell with judges. What is your opinion: Is decertification and the question of its validity a big deal or not?
Gould: Thus far, the judges who have looked at this and the regional directors of the NLRB who have looked at this have not found merit in the NFL's position. This is a game that is being played by both sides. The union says it is not a tactic; the owners say it is. But the last time the union did this, the owners said, "We'll only settle the anti-trust dispute if you will agree to come back as a union." That is the reality; that is the sine qua non for any settlement of this dispute. Both sides are being disingenuous, and the case law thus far is on the union's side.
By the way, this is something that hasn't surfaced thus far -- and we'll see when the plaintiffs file their briefs next week, and Judge Nelson paid no attention to this -- but the collective bargaining agreement precludes the NFL's assertion that it is "a sham." Are you aware of that? It's a complicated argument unto itself, but that's the bargain they made. In 1993 when the consent decree was fashioned, the NFL said, "We're not going to agree to enter into a consent decree and settle this anti-trust case unless you agree to come back into existence." And the union said, "We're not going to come back into existence unless you agree not to assert the next time that we do it that it's not a sham."
Rapp: I don't think it's a big deal. I think the NFL, while being creative, ultimately was wrong on the issue, and the judge recognized that. You could have a situation where the decertification was "a sham," but what that would require the NFL to show is that the players' union is still acting as a union -- [that] it is still acting as the exclusive bargaining representative of the employees. To me, everything I've seen, that clearly is not the case. This was a legitimate decertification, a high-risk move for the players, but they did it. The fact that it's a tactic doesn't mean it's invalid. All sorts of things in labor management relations and in litigation are tactical in nature, but as long as they are executed properly and no fraud is being perpetrated on the court, they are legally valid maneuvers, and decertification here seems to me to be a legally valid maneuver.
Question: There's a feeling that if the NFL is going to win a judgment on appeal that the Eighth Circuit gives it a reasonable shot -- particularly because of its conservative makeup. Bottom line: Do you think the NFL wins on appeal?
Gould: I can't give you a specific odds figure because that would be pure speculation on my part. I do think that now, in the year 2011, this is the most conservative court of appeals in the United States. As you may know, I was chairman of the National Labors Relations Board involved in the baseball strike, and I recall that many or our orders going up to the court of appeals -- when it was the Eighth Circuit and when it was much less conservative than it is today -- were reversed. Now, no one knows what these judges will think, but I think the owners have the best possible forum for this case, from their perspective.
Rapp: I'm kind of torn on this. I think the NFL's argument about the "sham" and their argument on jurisdiction, which lost at the district court, are going to lose at the appellate court. But the one tough issue for the players is the requirement for irreparable harm, which is necessary to grant an injunction. The argument that was made before the district court, which it accepted, was that for some individual players they might be in a position where they want to negotiate contracts right now, and they're unable to do so. And the uncertainty around how NFL contracts are executed might mean that we never knew for sure how much they would've gotten paid. There might be some players who get injured and, as a result, have shorter careers. And those, of course, would be serious things for those individual players, but I guess the question for me is: Why couldn't money make up for those harms? Because if money can make up for it, then it is a reparable harm instead of an irreparable harm, and not a proper basis to grant an injunction.
[On the question of the "irreparable harm" being damaged by comments by those like Wes Welker, Ray Lewis and Reggie Bush,] the difficulty players have is that they have hundreds of individuals who might share their thoughts and speak in ways that overall are probably not in the best interests of the players. The owners, by contrast, have fewer individuals to control, and those individuals tend to be more sophisticated and have a lawyer sitting next to them when they are talking.
So, certainly, it undermines the players' position a little bit in the eyes of the public, but the issue of irreparable harm is one where the court is going to look at the record, look at the evidence the district court had and decide based on that -- not based on stray comments by one or two players at issue that appear in the media.
The real question for irreparable harm is if the players don't have an injunction in place, and they're litigating their anti-trust case while the NFL is enforcing the lockout, is there some harm the players would suffer that awarding them money at the end of the antitrust case wouldn't compensate them for? The district court thought there was. I'm not sure the appellate court will buy that argument.
The judges will look closely at what the district court found were the indications of irreparable harm. Appellate courts tend to defer to district courts in a lot of ways when the district court is hearing witnesses and reading the full record. The appellate court will look at what the district court had to say, and they're not likely to go off on their own and look at evidence that wasn't presented at the district court. It's not about what's been said since; it's about whether when the district court granted this decision it got the law right.
This is going to be a close call because while the NFLPA should clearly win two of the three big issues they won below [in the district court], on that last one -- which is the hardest one for them -- I'm not sure they'll get a positive result. As long as the NFL wins that argument, the injunction would be vacated.
I've been looking back at the last big labor issue. In a nutshell (just the basic outline via Wikipedia, please don't pick me apart on minutiae Maurile...)
1. Players strike for a month in 1987. Owners bring in replacement players.
2. Union cracks, players vote to go back to work in October without a CBA. They simultaneously file antitrust suit the same day.
3. Suit was rejected because the union was still a union which gives exemption to owners.
4. Players decertify in 1989. File new antitrust suit.
5. Players win in court.
6. Case is settled, union reforms, CBA is signed in 1993.
7. That CBA was extended 5 times and was in effect until last year.
So this decertification tactic worked last time and it seems like it will eventually work this time. Last time they were able to work out a settlement and get a CBA. Will they this time? I think that's what we all hope, except for a few people who seem to think an MLB-type system would work ok.
I feel like it will be harder this time though. Because last time the status quo was greatly in favor of the owners, so they had room to give. The players made significant gains. Now it's not as clear. The pro-players side will say of course the owners have room to give. I don't think anyone knows for sure since they are private companies without open books. The economy has changed, stadium financing has changed.
I think it's entirely possible that the expired CBA is not acceptable to the owners even if the players win leverage via the decertification. I think the players will not accept less when they have that leverage. In that case the eggs will start to get scrambled (i.e. balance lost) until both sides see the advantage of a CBA and a balanced league. It seems very possible to me that we could have a least a few years of a very different football league.
1. Players strike for a month in 1987. Owners bring in replacement players.
2. Union cracks, players vote to go back to work in October without a CBA. They simultaneously file antitrust suit the same day.
3. Suit was rejected because the union was still a union which gives exemption to owners.
4. Players decertify in 1989. File new antitrust suit.
5. Players win in court.
6. Case is settled, union reforms, CBA is signed in 1993.
7. That CBA was extended 5 times and was in effect until last year.
So this decertification tactic worked last time and it seems like it will eventually work this time. Last time they were able to work out a settlement and get a CBA. Will they this time? I think that's what we all hope, except for a few people who seem to think an MLB-type system would work ok.
I feel like it will be harder this time though. Because last time the status quo was greatly in favor of the owners, so they had room to give. The players made significant gains. Now it's not as clear. The pro-players side will say of course the owners have room to give. I don't think anyone knows for sure since they are private companies without open books. The economy has changed, stadium financing has changed.
I think it's entirely possible that the expired CBA is not acceptable to the owners even if the players win leverage via the decertification. I think the players will not accept less when they have that leverage. In that case the eggs will start to get scrambled (i.e. balance lost) until both sides see the advantage of a CBA and a balanced league. It seems very possible to me that we could have a least a few years of a very different football league.
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Here is the NHL's brief, filed today.
jacobo_moses
Footballguy
Per Adam Schefter Twitter
Michael Gans, 8th Circuit Court Clerk in St. Louis, said not to expect any ruling on stay today and not to expect any ruling before Monday.
Michael Gans, 8th Circuit Court Clerk in St. Louis, said not to expect any ruling on stay today and not to expect any ruling before Monday.
jacobo_moses
Footballguy
Saw this post on Fantrax and thought it was funny:
The Eighth Circuit Court of St. Louis will not rule on the stay of the lockout injunction before Monday. Yes, there's an echo in here, and we're running out of ways to explain this situation. For anything to happen in the NFL, someone or something needs to get the ball rolling. The conservative Eighth Circuit Court, to this point, has shown no interest in taking the reigns of the league's labor battle.
Its almost downright laughable how the 8th Circuit is milking this for all its worth.
The Eighth Circuit Court of St. Louis will not rule on the stay of the lockout injunction before Monday. Yes, there's an echo in here, and we're running out of ways to explain this situation. For anything to happen in the NFL, someone or something needs to get the ball rolling. The conservative Eighth Circuit Court, to this point, has shown no interest in taking the reigns of the league's labor battle.
Its almost downright laughable how the 8th Circuit is milking this for all its worth.
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3nOut
Footballguy
The way I understood it, the league considered the decertification a sham, thats why they were able to do it in their eyes. If they fealt that it wasn't a sham, they wouldn't have done it becuase they couldn't have done it. I don't think they have the ability to lock oout non-unionized employees. A better way to deter sham decertifications is to significantly limit how/when players can re-certify.
Wadsworth
Footballguy
Here's the part of the CBA that Professor Gould is referring to:
The Parties agree that, after the expiration of the express term of this Agreement, in the event that at that time or any time thereafter a majority of players indicate that they wish to end the collective bargaining status of the NFLPA on or after expiration of this Agreement, the NFL and its Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns waive any rights they may have to assert any antitrust labor exemption defense based upon any claim that the termination by the NFLPA of its status as a collective bargaining representative is or would be a sham, pretext, ineffective, requires additional steps, or has not in fact occurred.
The owners will argue that the provision is inapplicable because the players decertified before the expiration of the agreement. And I think the owners would have a very good point. (If you're wondering why the players didn't simply let the CBA expire before they decertified, it's because another section of the CBA says that, if the players are still a union when the CBA expires, they have to wait at least six months after that to file an antitrust suit.)
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cobalt_27
Footballguy
Oh, this is your first mistake. The law and common sense are brutal enemies of each other in this country much of the time.
Lucky Lefty
Footballguy
I especially agree with that second guy you quoted.
keep drinking the kool-aid... If the owners are force to split the money they made from the TVs deal, this will end this pissing contest quickly.
cobalt_27
Footballguy
The owners should pay for that. Clearly, they were in the wrong there, and the players absolutely should take them to court. I find the $700m figure a bit on the insane side, but...that's fine. The court will determine the compensation here.But, its relevance is negligible in the context of the lockout. It's not going to end anything for either side. Only a CBA will.
maxwelledison
Footballguy
How would you know this again?
hard to see how the owner's won't try to re-coup any penalty from future salary paymentsnot seeing a quick resolution from any TV deal penalty
cobalt_27
Footballguy
Are you suggesting no laws deviate from common sense?
maxwelledison
Footballguy
This isn't what you said and it doesn't address my question.
cobalt_27
Footballguy
So you agree, then, that laws and common sense are not always compatible?
maxwelledison
Footballguy
I try not to speak in absolutes so I won't say always. But that's not the point. You said they were "brutal enemies...much of the time". I asked for your authority to make this assertion. Instead of answering you asked me if it wasn't true that no laws deviate from common sense. This was not your original claim nor does it establish your authority. Instead it invites me to try to show that no laws deviate from common sense which is a fool's errand. Of course some laws deviate from common sense. But since you have not explained how you are well-positioned to make your claim I can only assume that you have done so without knowledge of the subject. In any event, at least this confirms that your pro-owner position is likely based on sentiment and not the facts of this particular dispute. Good to know.
maxwelledison
Footballguy
Serious question for those that lean toward the owners side of this dispute -
How do you justify or otherwise come to terms with the owners' conduct re: the TV contract?
I think it's curious that this issue is marginalized by pro-owner posters when, imo, it is the most (and arguably only) egregious act by either side throughout this whole fiasco.
ETA - punctuation.
How do you justify or otherwise come to terms with the owners' conduct re: the TV contract?
I think it's curious that this issue is marginalized by pro-owner posters when, imo, it is the most (and arguably only) egregious act by either side throughout this whole fiasco.
ETA - punctuation.
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cobalt_27
Footballguy
You should reread my original statement and then check your premises. I don't think I spoke at all in absolutes. My authority on observing the distinction between laws and common sense come from years of experience and a frontal lobe. If there are attorneys or law enforcement officers and judges who wish to assert greater authority on the topic, by all means go right ahead. This is a pretty stupid fight you're trying to pick here.
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cobalt_27
Footballguy
It was bad and and really a bad strategy, I might add. But, it doesn't therefore lead me to conclude that they should settle on a lesser deal with the players. It was a bad gambit that came back to bite them in the ###. As it should.
I personally don't justify or marginalize it. It looks like they tried to cheat the players, they were called on it, and are so far losing in court on that issue. But that doesn't make me favor the players. I think the path they're taking has a chance to really mess up the game. I hope it's found illegal as the NFL and NHL are arguing.That's my serious question to the pro-players side. Aren't you worried about the game being ruined? CalBear is okay with a baseball type system. Are you?
Dinsy Ejotuz
Footballguy
What part of the baseball system are you worried about? Before you answer... the last ten MLB and NFL champs
-backs, Angels, Marlins, Red Sox(2), White Sox, Cards, Phillies, Yankees, GiantsRavens, Patriots(3), Tampa Bay, Steelers(2), Colts, Giants, Saints, Packers
We don't (or at least most of us don't).I have no problem with the fact that the owners had a loan set up, but if they gave up $$$ to set it up (accepted less total $$ in return), then they were wrong to not compensate the players for that amount earlier. IN this issue, I'm (and many others in the "pro-owner" crowd) mostly on the players side. It was, IMO, a good decision and just to place this money in escrow, should it actually be paid.Keep in mind though, that the TV money was NOT "free money" for the owners. It was set up as a loan. The damages to the players do not come remotely close to what's been claimed.
There are many good reasons why baseball isn't harmed as much by payroll disparity as football would be. These reasons have been thoroughly explored and discussed before in other threads.That kind of significant payroll disparity would KILL the NFL. I (and most I think) am thoroughly convinced of that fact.What part of the baseball system are you worried about? Before you answer... the last ten MLB and NFL champs
If an agreement isn't reached and this thing begins to stretch into late June and early July the players will fold like a house of cards. Like many former players have said the owners don't need football to survive they have other revenue streams coming in that there bottom line will be marginally affected but there lifestyle will not be impacted. Former players have estimated maybe 10 percent of the current NFL Players can survive without any game checks (lost season) but many need those game checks come September to pay the bills, feed the kids and keep a roof over there heads. Owners are trying to let this go as long as possible.
Are Manning, Brees, Ray Lewis, Reggie Bush and other players who filed the lawsuit against the owners possibly feeling any backlash from the other players who are not as financially secure as them. For the above mentioned players a lost season would not hurt them in the least. Ray Lewis is happy to be sitting at home healing up.
Another topic also if the Judge rules for the owners and sides with the owners that no harm is being done to the players because a majority of veterans do not participate in the OTA's will that change the stance on veteran players attendance in the future. Also won't that cause a rift between the younger players and the veterans. Younger players can be like WTF these veterans just cost us a ruling on our livelihood.
Are Manning, Brees, Ray Lewis, Reggie Bush and other players who filed the lawsuit against the owners possibly feeling any backlash from the other players who are not as financially secure as them. For the above mentioned players a lost season would not hurt them in the least. Ray Lewis is happy to be sitting at home healing up.
Another topic also if the Judge rules for the owners and sides with the owners that no harm is being done to the players because a majority of veterans do not participate in the OTA's will that change the stance on veteran players attendance in the future. Also won't that cause a rift between the younger players and the veterans. Younger players can be like WTF these veterans just cost us a ruling on our livelihood.
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The part where a $40 MM payroll team needs to compete with a $210 MM one. If you're okay with that then I see why you aren't concerned about this mess.What part of the baseball system are you worried about? Before you answer... the last ten MLB and NFL champs
Ravens, Patriots(3), Tampa Bay, Steelers(2), Colts, Giants, Saints, Packers
People who are worried about the game being ruined should probably be more pro-player than pro-owner, IMO. If the players get what they want, we'll have the same system we had from 2006-2010. They liked things the way they were. It's the owners who want substantial change. The game was good before; the only thing that can ruin it is substantial change.I think some people are mistaking tactical legal positions for actual goals. The players' legal position is that the draft, salary cap, and restrictions on free agency are bogus. But who cares about legal positions? The owners' legal position is that there shouldn't be any more football! Forget legal positions, though, and look at what the parties actually want. They both want football. The players want it to work the same way as it has for the past five years; the owners want a different deal. Neither side wants to ruin the game; but if I had to pick one side to unfairly cast that aspersion against, it would be the owners rather than the players. They're the ones who opted out of the last agreement in order to change things up.
roadkill1292
Footballguy
One can favor the players' side and still not want a MLB type system. And I'm not very worried about that being the end result here, either, because I think the players recognize that a salary cap is in their, and the game's, best interest. But there are other gains they can win/protect as well in these negotiations.
maxwelledison
Footballguy
No, I'm not. I rather the NFL stay the way it has for the past ~20 years. As MT pointed out I don't think the players' true position is that they want a free market/MLB system. I think it's pretty clear they've adopted that legal position because it is the only leverage they have. By threatening to blow up the current model, which has been wildly successful for all involved, they believe they can get the owners to back off certain demands they've made for the new CBA (more $$$ off the top, 18 games, etc.). I don't blame them for using it as a tactic for the same reasons I don't blame the owners for using the lockout as a tactic - tactics often work. The problem right now is really for fans that loved the NFL model (most of us here). The owners have made demands that the players see as unreasonable (i.e. the extra billion off the top) and they don't appear willing to back off those demands unless the 8th Circuit does not stay the injunction pending appeal. Then we may see some movement because I don't think most owners want to move to a free market/MLB model, either. The threat of true free agency may make them come back to the table (and before the eleventh hour).The reason I am pro-players in this situation is because I see a strong undercurrent of bad faith from the owners. I have no objection that they opted out of the last CBA - that was their right. And they may have very good reasons for needing more money off the top; maybe player salaries need to increase at a reduced rate or even remain static for a few years. What isn't OK imo is violating a contractual obligation in order to gain leverage in a lockout you've obviously collectively planned more than three years out. If anything reads like one party had no intention of negotiating a new CBA under anything but their own draconian terms, this is it.ETA - correction re: stay
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daveR
Footballguy
Maybe (I'm just taking a shot here) like this...The CBA was for 8 years (6?). The TV rights covered that period. The CBA was ended a year early. Were they to negotiate a shorter TV contract just in case?
Idiot Boxer
Footballguy
MT - I disagree that the owners want radical changes. They want a little bigger cut of the pie, a rookie wage scale and 2 extra games (which I'm convinced they don't care about so much). I bet they'd agree to the terms of the old CBA with those modifications. Not the drastic changes you reference. The only real threat is really if neither the owners nor players blink during this game of chicken. Thats when radical change might happen.
I happen to be pro owner because I truly believe economic realities are such that the players should concede part of that back, because I think owners and players aren't partners, and because I think the players have chosen the more dangerous route in trying to gain leverage.
I happen to be pro owner because I truly believe economic realities are such that the players should concede part of that back, because I think owners and players aren't partners, and because I think the players have chosen the more dangerous route in trying to gain leverage.
