In the aftermath of Judge Susan Richard Nelson's not-so-shocking decision to end the NFL lockout for at least the time being, I have this image in my head of the what the NFL lawyers, executives and owners looked like when they gathered to consider their next move.
Think "Animal House" and the scene after the Deltas go on double-secret probation. Think of NFL Commissioner Roger Goodell channeling his inner-John Belushi and saying defiantly, "It's not over until we say it's over!"
The only difference is that the Deltas had a better plan.
Well, sort of.
For all of you who think free agency is magically going to start Tuesday morning, think again. The NFL has already filed an appeal questioning whether the district court exceeded its jurisdiction, seeking relief from the Eighth U.S. Circuit Court of Appeals in St. Louis.
"We believe that federal law bars injunctions in labor disputes," the NFL wrote in a statement that was released Monday. "We are confident that the Eighth Circuit will agree. But we also believe that this dispute will inevitably end with a collective bargaining agreement, which would be in the best interests of players, clubs and fans. We can reach a fair agreement only if we continue negotiations toward that goal."
That's all well and good and the league is likely going to get its stay. However, here's the problem with the approach by the league: it's not going to work in the long run. The owners can hire all the big-time lawyers that they want and pay all the hourly fees necessary, but it's not going to work. That's because there's a very simple issue on the side of the players.
It's called the law. The law allows the NFL Players Association to decertify. The law allows any union in this country to decertify. This is not a sham, it's a legal tactic complete with all sorts of risks for the players. The league wants the world to believe the players should be forced to negotiate on terms that favor the league, but that's just not true.
Furthermore, the league will now have to convince a three-member panel of judges at the Eighth Circuit that what Nelson ruled is somehow wrong. Some people on the league's side have attempted to reason that such an argument will be easier at the Eighth Circuit because nine of the 11 active judges (the case will randomly be assigned to three of them) were appointed by Republican presidents. Nice theory for those of you who think everything is about politics, but that's not reality.
Want proof? The last time the league went to the Eighth Circuit was in 2009 to appeal Federal Judge David Doty's decision allowing Michael Vick(notes) to keep approximately $20 million in bonus money that was paid to him by the Atlanta Falcons before he went to prison on dogfighting charges. Doty, who was appointed to the court by President Ronald Reagan, ruled that the CBA allowed Vick to keep the money, even though public sentiment was as against Vick as Dean Wormer was against the Deltas.
Doty's decision was then upheld by the Eighth Circuit by three judges (Steven Colloton, William J. Riley and Roger Leland Wollman) who were appointed by George W. Bush (Colloton and Riley) or Reagan (Wollman).
In short, the league's lawyers are going to have to convince three judges why they should overturn a pretty sound decision by another federal judge, even if she happens to have been appointed by President Obama. The league will also have to convince the three judges that they have less power to make decisions in this matter than the National Labor Relations Board. The league will have to convince the judges that the power of the owners to lock out the players supersedes the rights of those players to decertify and face the consequences. The league will have to convince the judges that collective bargaining didn't break down even though the sides made little progress in the nearly three years since the owners opted out of the old collective bargaining agreement.
Good luck with all of that. There's a better chance of owner Mike Brown leading the Cincinnati Bengals to a Super Bowl title than there is of the owners winning that series of arguments.
This is not about politics. This is about the law.
- Eighth Circuit