Court arguments paint bleak lockout picture

ST. LOUIS – The venue was standing-room only and the performances were brilliant, quick and skillful on both sides.

But if you're a fan of football as opposed to the law, a lot of what was said Friday was disheartening. If the arguments between attorney Paul Clement, who represented the NFL owners, and Ted Olson, who represented the players, were any indication, there is still a long way to go before football gets played.

Particularly if Clement and the owners are correct.

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In front of a three-judge panel at the Eighth Circuit Court of Appeals, Clement and Olson exchanged their widely differing views on how the varying labor laws and the NFL's expired collective bargaining agreement should be interpreted. From Olson's view, what the players have done by decertifying as a union and filing an antitrust case should be allowed to proceed.

From the owners' standpoint, they still need time to figure it out. Lots of time. Specifically, perhaps a full year of time as Clement suggested at one point. Ultimately, the NFL is trying to make it clear that it can shut down the game for at least a year if that's what it takes to get the deal it wants from the players.

If both sides are wise, there will be more "secret" meetings like the one held earlier this week in Chicago. In fact, plenty of people on both sides should be motivated by what they heard, particularly the admonishment from Judge Kermit Bye at the end.

"We will take this case and render a decision in due course," Bye said before making a pointed push for the sides to work out the problem. "We won't, I might also say, be all that hurt that you're leaving us out if you should go out and settle the case. But that's up to you. But we will keep with our business and if that ends up with a decision, it's probably something both sides are not going to like but at least it will be a decision."


In other words, both sides could be hating life if they don't start talking.

"You heard what the judge said at the end, we need to work this out ourselves," former NFL tight end Ernie Conwell. "Hopefully, we can do that. But the owners are pushing the lockout and you can see how hard they're fighting to protect that."

The important exchange between Clement, Bye and fellow judges Steven Colloton and Duane Benson came early in the proceeding, which lasted a little more than an hour. Colloton and Benson were in the midst of asking Clement how long the league would be able to maintain its protection from an antitrust lawsuit by the players. Under the terms of the previous CBA, the union was prohibited from decertifying and filing a lawsuit for six months once the agreement expired – which coincides with the scheduled start of the opening Sunday on Sept. 11. However, the players have attempted to get around that by decertifying before the end of the old CBA.

Whether the court allows that technicality to work is in question, but the thought by many people is that even if the players lost at this point, they could simply wait until September to decertify and file an antitrust lawsuit against the owners.


On Friday, Clement attempted to head off that strategy. He was specifically asked by the judges how long the exemption should last.

"If what you're talking about is a lockout, in particular, that's something where there may not be a need for a court to find the endpoint of a lockout," Clement said. "The reason I say that is two-fold. The first is that economic self-interest will take care of this, which is to say that a lockout, by its nature, doesn't make any economic sense, unless it's designed as a labor law tool designed to reach a collective bargaining agreement."

Benton then followed up by asking: "So you think it lasts a year?"

"I think it lasts at least a year," Clement said. He then went even further to explain his logic.


"I think six months, as was in the contractual agreement here, all that suggests is the absolute bare minimum. Both sides agreed in that very different context to assume the labor agreement would run its course. Upon expiration, no suit could be brought for at least six months. By my way of reckoning, that's not the outer limit. That's the absolute minimum because even the union was willing to agree to that time period. I would think if you're looking for a time period, the least that you would have is one business cycle. In the context of this league, that would be at least a year," Clement said.

Ultimately, Clement is not only saying that the league can continue to lock out the players beyond the six-month period, but the league is also protected from significant antitrust damages.

Olson (left) speaks after Friday's hearing.
(AP Photo)


While Colloton and Benson didn't seem to be moved to change their votes to allow the owners to keep locking out the players, they both seemed uncomfortable with the idea of giving the league carte blanche to lock out the players for as long as it wants. In other words, it's easy to anticipate that the owners will win the right to lock out the players, but once they get past the six-month period, they could be in trouble.

Certainly, at some point, the owners can't get protected by the law if the players decertify and prove that the decertification is legitimate.

Or as Olson put it, bluntly: "The period of protection under the labor laws is over. The antitrust either kicks in or we have some no man's land."

Perhaps that's what Bye meant when he said it could be a decision neither side likes.


"Sitting there, it was hard to follow. You're thinking, 'Why did we have to get here?' " St. Louis Rams offensive lineman Adam Goldberg(notes) said. "We're all just hoping it gets resolved sooner than later, but this is really slow."

Even more reason for the two sides to resume talking.