Unappealing Matters … Morning Cup O’Chiefs

The pro football world lands on the eastern edge of the state of Missouri on Friday.

More specifically, it falls in the Thomas F. Eagleton U.S. Courthouse on South 10th Street in downtown St. Louis.

Even more specifically it lands in the En Banc Courtroom on the 28th Floor of the Eagleton Courthouse. The building has 29 floors, so while it’s not quite the Penthouse, but it’s pretty darn close.

At 10 a.m., the U.S. Court of Appeals for the Eighth Circuit will call to order the hearing on Appeal #11-1898 in the case of Tom Brady, et. al vs. the National Football League, et. al.

Lawyers from the NFL and those representing the players will have 30 minutes each for oral arguments in front of Judges Kermit E. Bye, Steven M. Colloton and W. Duane Benton, of Kansas City. Both sides have already filed lengthy briefs in front of the judges, previewing where they are going to take their presentations.  

                           Judge Bye                         Judge Colloton                           Judge Benton

The NFL will go first, since they are the ones that appealed the ruling by U.S. District Court Judge Susan Nelson that basically said the league did not have the standing to impose a lockout in their labor battle with the players.

The players will step up next and have 30 minutes to buttress the decision by Judge Nelson that would end the lockout and bring the NFL back on line for football, rather than having labor bargaining and litigation be the only action in the business of pro football.

The NFL’s opening brief runs 61 pages. Should you be really bored, here’s a link to a copy of the brief. In summary, the owners are saying that the District Court did not have jurisdiction to stop the lockout and that the decision should have been directed to the National Labor Relations Board. .

The players return brief runs 106 pages. Should you be really, really bored, here’s a link to a copy of their brief. In summary, the players say that Judge Nelson knew what she was doing and the lockout should be lifted while the players’ anti-trust suit continues to make its way through court.

And then, the court allowed the NFL to reply to the players brief. That answer went 41 pages – here’s the link – and in summary said the players side misread all the judicial examples they used that stop the league from locking out the players.

Between both parties there are 20 lawyers listed on their documents – seven with the players and 13 with the league. In their briefs, both sides list dozens of past court decisions to back up their opinions, including cases involving the United Mine Workers, the International Association of Bridge, Structural and Ornamental Iron Workers, the Milk Wagon Drivers Union in a case that goes back to 1940 and the National Woodwork Manufacturing Association.

What’s happening now is essentially a necessary part of the labor dance. As aggravating as it is to everyone involved, including the fans that pay the freight each year, there are always going to be major legal issues that must be decided between the league and its players. Since the NFL does not have an exemption to the Sherman Anti-Trust Act like Major League Baseball, there are always fluid situations in their business.

To make things happen, the owners need the players union. That keeps individual players from filing suit after suit against the league, and gives the owners just one large opponent, rather than many smaller foes. What the owners hope for is to have the Appeals Court overrule the lower court ruling and establish the league’s right to lockout its players.

What the players hope is that the Eighth Circuit affirms the lower court decision, which would end the lockout.

Right now, the league beagles give the edge to the NFL, since the Appeals Court granted and upheld a stay of the injunction lifting the lockout. Both of those votes were 2-1 decisions with Judges Colloton and Benson siding with the league and Judge Bye dissenting.

Whether it makes a difference or not, it’s interesting to note that Judges Colloton and Benson were both nominated for the court by a Republican President George W. Bush. Judge Kemp was appointed by Democrat President Bill Clinton.

So when can we expect to see an opinion from the Eighth Circuit? There is no timetable that the judges must follow. They could produce an opinion overnight (no chance) in a week (highly unlikely), two weeks (likely) or three weeks (more likely.)

Will it decide anything? We can only hope.


10 Responses to “Unappealing Matters … Morning Cup O’Chiefs”

  • June 3, 2011  - RW says:

    Nice overview of a tedius topic, Bob. Signing off on all these legal manuevers is both expensive and time consuming while the off season of 2011 continues to circle the drain.

    I wonder what type of league will finally emerge once this matter is finally settled and what precedents will have been realized that will impact future CBA negotiations? Anyway, not a compelling topic to report on but thanks for doing it.


  • June 3, 2011  - chiefwoundedknee says:

    Curious. Can anyone comment re the fact that the NFLPA was decertified by the players, yet it appears that the union continues to negotiate for the players? How does that work?


  • June 3, 2011  - Chuck says:

    One has to just think that if they don’t get this thing settled pretty soon what kind of season will we really have??? Probably lots of injuries (due to being out of shape), and generally a sloppy season of football. Teams like the Patriots will have an advantage (lots of veteran experience) and teams with new Head Coaches will be at a distinct disadvantage.


  • June 3, 2011  - Kent Pulliam says:

    To ChiefWoundedKnee:

    My understanding is that in decertifying, the NFLPA became essentially a “trade association” and remains the bargaining arm of NFL players with only slightly different rules it must operate under. Part of the decertification was to try and avoid a lockout, contending that while the NFL as a business entity could lock out a union, it could not legally lock out individual players because that would be a restraint of trade and a violation of antitrust laws. Thus the decertification. The NFLPA never has been a union in the traditional sense but more like the union that movie stars belong to. The union negotiates working conditions and minimum salaries, but each player can negotiate his own contract.


  • June 3, 2011  - txchief says:

    What is truly most disgusting is that there are so many lawyers and lawsuits in this country that one of the many federal courts buildings needs to be 29 floors high! The whole idea that there is that much legal work to be done and so much “precedent” to be considered is an abomination. The entire concept of legal precedent allows judges and attorneys to create new laws without the oversight of the citizens of this country or their elected representatives. Probably not exactly what the founders of our country intended. This entire NFL labor situation is only a symptom of a far more widespread disease.


  • June 3, 2011  - Tenand6 says:

    This is not meant as a slam to the players. I have defended the owners only as a matter of trying to see things from the side of someone who has owned and operated large businesses. My comment is, the players don’t negotiate their own contracts as a rule. Why aren’t the players’ agents in these meetings? The agents seem to have an outstanding grasp of their clients needs and the legal and financial issues they face. The agents have a huge stake in how much the players make. If I were the players, I would include two or three of the prominent agents in these talks. The agents cut deals for a living and they are as smart, and sometimes smarter, than the owners.

    I don’t care for Smith. But, if he’s the main guy, I would have a few of the NFL’s top agents there to consult with the players and make sure they aren’t being led down a dead end. After all, the agents are the ones who deal with the owners and GM’s, not the players.


  • June 4, 2011  - Kel says:

    This is such a great summary of where things stand – thanks Bob! After reading this and one of the previous posts about Cassel and Baldwin working out together recently, I was wondering if you could do a story on what other players are meeting up and practicing together? Anyone organizing large-scale practices?


  • June 4, 2011  - JB says:

    This is a perfect setting for damn fools and liars. An overwrought study in overruns built by a self-aggrandizing ex senator that used somebody else’s money to continue this farce.


  • June 4, 2011  - JB says:

    As a followup to my previous post..how many times to you think the word “fan experience or fan investment return” has appeared in the filings, briefs, offers, union negotiations documents etc? Make no mistake it’s not there because their pretty sure you’re sheep and will get over it. Hmmm. They do have history on their side


  • June 6, 2011  - Tom says:

    ASK MLB if this is worth it. Were it not for steroids MLB would be circling the drain. Steroids saved baseball, and baseball thanked it’s players by having a witch hunt. How will football recover. I am excited for this to end, but if there is no season I’ll find other interests.




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