ST. PAUL, Minn. – If there was one winner in the latest round of cat-fighting between the NFL and its players, that person belonged to neither side.
It was federal judge Susan Richard Nelson, who came into these proceedings as something of a rookie in the grand scheme and left with the respect of almost everyone involved. In just her fourth month on the job after being promoted from federal magistrate by the Obama administration, Nelson showed a deep grasp of the issues and history that have defined the past 30 years of NFL labor decisions as the sides argued in the initial round of the Brady et all vs. the NFL antitrust case on Wednesday in U.S. District Court.
While Nelson indicated she expects to take a couple of weeks before making a decision on whether to grant the players their request for an injunction against the lockout by the owners, she also made an appeal in her closing remarks that came as music to those who sat through nearly five hours of legal rhetoric.
After giving the two-week timetable, Nelson looked at both sides in a courtroom filled with more than 130 people (excluding those occupying overflow rooms) and said: "In the meantime, it seems to me both sides are hurting. It seems to be a good time to get back to the table. Not the players' table or the NFL's table, but the federal court table."
The problem is that the owners don't like that table. After Nelson offered to have the sides sit down under the protection of her federal supervision, a lawyer from the NFL scoffed at the idea.
"That's not acceptable to me," the lawyer said.
In essence, the NFL doesn't want anything to do with the courts and that message became very clear as league outside attorney David Boies argued for hours in hopes of convincing Nelson that she had neither the jurisdictional power nor the legal right to grant the players the injunction they have sought since the NFL Players Association decertified as a union on March 11.
Of course, that begs the question: Why are the owners so afraid of the courts? Why, despite the fact that perceived nemesis David S. Doty is no longer hearing their case, are the owners so hell-bent on avoiding a judge?
It is especially perplexing from this perspective: When the NFL and the players settled the last big case in federal court – the famous Reggie White case – it led to more than 20 years of unprecedented labor peace, not to mention unreal profits. In fact, the history of collective bargaining is more like a history of collective misery. The 1987 strike was preceded by another strike and lockout in 1982. Before that, the owners and players regularly battled to the point of breaking down.
In other words, the NFL desperately wants the players to stay as a union because it knows full well that it can beat the players regularly without the help of court supervision. The very nature of football, with all of its injuries and talent-eroding issues, makes it nearly impossible for players to survive long periods without playing.
Which is why Boies spent hours trying to convince Nelson it is better that the National Labor Relations Board decides if the NFLPA's decision to decertify is legal. He also argued that the league should be allowed to invoke the 1932 Norris-La Guardia Act as a protection for its lockout … even though the Norris-LaGuardia Act was originally designed to protect employees and not employers.
While it's difficult to interpret the questions and comments of any judge, Nelson's queries seemed to have most people believing that the players were winning this round. At one point, she called it "ironic that a wealthy, multi-employer group would choose to invoke" the Norris-LaGuardia Act in this fashion.
She also continually pushed Boies to explain how it is that the NFL could argue it's legal to lock out players if the union successfully decertified. On at least three occasions, Nelson went so far as to say she had "trouble" understanding the league's interpretation. She also referred to Doty's decisions in other NFL-related cases in a positive fashion at least six times.
At another point, Nelson, speaking in a polite-yet-assertive Minnesota drawl, pointed at the players and said to Boies, "These folks, they can decertify if they want to."
Indeed, the matter is pretty simple. Lockouts and strikes are tools that are allowed for management and labor, respectively, when there is a collective bargaining setting, complete with the union. In this case, however, the NFLPA has given up its union status, taking the risks that go with that in order to argue that the NFL is essentially a suitcase full of antitrust violations used to keep players from attaining their true value.
Nelson's pointed-yet-open-ended questions, coupled with her deep understanding of previous NFL cases (such as the White, McNeil, Mackey, Powell and Brown decisions), made for a much longer hearing than most expected. In addition, Nelson let the lawyers speak at length to make sure all relevant points were covered.
The reaction from the players was measured confidence.
"I don't know much about a lot of this stuff, but I feel pretty good about how this went," said Kansas City Chiefs linebacker Mike Vrabel(notes), one of the 10 named plaintiffs in the case along with Brady, Peyton Manning(notes) and Drew Brees(notes). Vrabel, Brian Robison(notes), Von Miller, Ben Leber(notes) and Vincent Jackson(notes) were the only plaintiffs who showed up, but there were approximately 15 current or former players on hand.
"I'm pretty pleased with how things went, the judge really seemed to know her stuff and took her time listening," said Pittsburgh Steelers backup quarterback Charlie Batch(notes), who is a member of the NFLPA executive committee.
Boies and others in the NFL group cautioned not to read too much into Nelson's questions or comments.
"I've many times left a court thinking the judge was leaning one way and came away surprised," said Boies, who added that Nelson was very well prepared. In fact, Nelson opened the proceeding by saying, "You can be assured that the court has done virtually nothing else the past few weeks" other than get prepared for this case.
Then again, regardless of what Nelson decides, this case is more than likely headed to the appeals process no matter who wins.
Or as Boies put it, "We're just in the first quarter."
- Susan Richard Nelson
- David Boies