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Experts: Players' Case Is Stronger, But NFL Could Win Appeal

Publication Date: 
May 12, 2011
Source: 
CBS Sports
Author: 
Clark Judge

Professor William Gould participated in a Q & A with Clark Judge of CBS Sports to discuss the NFL Lockout, and why there has yet to be a ruling by the court for a permanent stay.

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.

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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.

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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.

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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.

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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.

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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."

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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.