The NFL and NFLPA have put forth their arguments in the Brady v. NFL antitrust lawsuit, and Judge Susan Nelson has decided to take the case under advisement, saying that she will need "a couple of weeks" to decide whether she has jurisdiction over the case (as opposed to the Labor Relations Board, which is where the NFL would like the case to land), and whether the NFL has the legal right to lock the players out under current American law. Judge Nelson also strongly encouraged more negotiations, and left open the possibility of the two sides doing so in a court-situated setting. No ruling regarding the current lockout was made, which means that it stays in place for the time being.
Key among the issues is the fact that since the union has decertified and thus is immune from antitrust exemptions in the abstract, the league may be in violation of anti-competitive practices by preventing a trade organization from the ability to work. Nelson asked NFL outside counsel David Boies about this, wondering aloud how it was possible that the league could prevent the players from working under these circumstances. And when the concept of irreparable financial harm was brought up, Nelson was quoted as saying that the players seemed to have a pretty good case.
"Their preferred approach has always been litigation," Boies told the media after the day in court was done. "Our approach has always been mediation and litigation. I don't think it's surprising that as we walk out of this courthouse, neither one of us has changed our basic approach. Whether or not we can work something out over the next couple of weeks … maybe we can. But I wouldn't read too much into the fact that we're still saying, 'We'd like to see a football season and we want to solve this problem,' and they're saying, 'We'd like to litigate."
Clearly, the NFL has not moved off its platform of propaganda. The players want football back in a hurry just as much as the owners do — if not more, because it's the players whose careers have limited lifespans, not the owners. But the players have serious reasons to consider litigation — it evens the playing field, the law has generally been on their side, and when NFLPA chief DeMaurice Smith goes into a courtroom in his current capacity, he generally walks out with a few NFL pelts. The league doesn't want litigation in the cases where its standings cannot be supported by the law, and more and more, that appears to be the case in Brady v. NFL.
Boies was asked questions by Nelson for approximately three-and-one-half hours, and Nelson asked the counsel for the players questions for just one hour. Neither side would read anything into that.
"The judge suggested mediation and negotiation, and that's certainly something we could consider," NFLPA outside counsel Jim Quinn said after Boies was done speaking. "Any way to get the players back on the field makes sense. It would more likely be here in federal court, here with a federal mediator, having to do with the settlement of litigation — not collective bargaining."
Asked how the players have suffered irreparable harm (the magic words in antitrust cases), Quinn was concise. "We have almost 900 players that are without contracts, and they need to find jobs. They need to try and get on rosters. And every day they can't do that, they're suffering irreparable harm."
So, after one day in court, we seem to be about where we were before. The NFL is taking the litigation complaint too far, and the NFLPA is not moving off its podium one bit. Time will tell if new negotiations take place — there have been none since March 11, and the owners refused the players' requests for few talks later this week — but the simple fact that this is still in a judge's hands, and thus subject to further impartial review, should leave football fans with at least a slight sense of relief.
Because if there's one thing both sides have proven so far, it's that expecting them to work it out on their own is a near-impossibility.
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