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The Lockout Ruling Still Depends on the Conservative 8th Circuit Court of Appeals

For fans who are rooting for the NFL season to begin on time, Judge Susan Nelson’s ruling yesterday granting the player’s injunction against the owner lockout was a key one, but it may all be for naught if the 8th Circuit Court of Appeals reverses her ruling on appeal. Sean Jensen of the Chicago Sun-Times interviewed a former chairman of the National Labor Relations Board (NLRB) who described the 8th Circuit as reversing many of their decisions against employers.

Former chairman William Gould said, “[p]hilosophically, they’re hostile to the rights of unions and workers to engage in union activity, and, in this case, not to engage in union activity.” Gould held the position until 1998, and the current composition of the 8th Circuit is 9 Republican appointees to 2 Democrats, with many of the appointees coming during George W. Bush’s presidency.

Now, I’ll point out that Gould’s experience was with the NLRB, and reviews of that agency’s decision are a little different than reviewing this trial court decision that determined the NLRB did not have to review an issue. I went through the lengthy 89-page decision (so you wouldn’t have to) to break down the key factors in the decision.

The primary issue regarding the injunction was whether the circuit court was required to stay its proceeding and defer to the NLRB on the issue of whether the player’s disclaimer of being represented by a union was valid. Then NFL’s position was that the NLRB was required to rule on whether that disclaimer was valid. Once Nelson ruled that the NLRB did not have exclusive jurisdiction to hear this issue, and that it could properly be decided by the court, the rest of the ruling regarding the injunction fell into place.

In doing so, Nelson crafted an opinion that directly relied the 8th Circuit’s prior conservative opinions limiting the scope of what needed to be heard by the NLRB. She found that the various factors did not require her to stay her proceeding for a separate NLRB ruling on that issue, and that the prior NLRB ruling the first time the NFLPA members disclaimed the union, and the delay that would result by waiting on the NLRB, were factors in her being able to rule.

The key issue on the appeal will be whether the 8th circuit agrees that Judge Nelson could properly rule on the disclaimer issue. It was interesting to see that the NFL owners, and not the players, were the ones that insisted the players re-form as a union as part of the previous stipulation and settlement agreement, and the owners had said they would not challenge a future disclaimer of union status as a result. This was not a factor in the decision (Nelson said she was not ruling on the waiver issue of the NFL’s position against the disclaimer now), but it helps explain how we got here, and why the players all along felt like their best option was to be non-unionized and in the realm of anti-trust law, while ownership desperately wants this to be a labor law issue.

I think it’s pretty clear that IF this is an anti-trust issue, that the NFL loses and they can not lockout, because it involves a concerted action to restrain trade. I also think that the NFL would ultimately lose on the merits in a ruling from the NLRB on the disclaimer issue. The NFL, then, is looking for a delay of these rulings, by going through the process of the NLRB, which could allow them to get into the season with a lockout before any ruling comes down. Delay equals victory for the owners.

What is the practical implication of this ruling? Well, even though Judge Nelson’s decision enjoined the lockout and she did not issue a stay of her ruling, the NFL will appeal. If the 8th Circuit does not immediately grant a stay of that ruling, then free agency and the other things that happen in an offseason. If the 8th Circuit grants a stay while they consider the merits of the appeal, it may not mean they will immediately overrule the trial court, but it will maintain the status quo (lockout) until they do decide. While the 8th Circuit has been a conservative circuit, I don’t think this is a clear cut case. The Circuit has also narrowed the scope of the NLRB, something Judge Nelson followed by not deferring to the NLRB on this issue, so they may find her ruling consistent with their prior views toward the NLRB.

And when it comes to football, or politicians and judges in football, I’m never going to predict what someone will do based on their prior perceived ideology in non-football related ventures. After all, it was Richard Nixon, staunch Republican, who pushed through the federal legislation that eliminated the blackout policy because he couldn’t watch his Redskins when they played home games.

[photo via Getty]

 

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