The U.S. Court of Appeals for the Eighth Circuit has now dedicated a page to all of the filings in Brady v NFL, et al, so I’ve caught up on the reading. The gist of the case, legally at least, is as follows. The NFL owners and the NFL Players Union fought and negotiated as part of the labor process, until negotiations broke down. In response, the NFL “locked out” players, meaning that they weren’t allowed in the building to use facilities and would not be paid, and the players, in a unique move, “decertified” their union, professing to become not a union but simply a collection of individual players, represented as a “class” in this lawsuit (i.e. you have plaintiffs who are similar to other potential plaintiffs in order to limit everyone needing to file their own lawsuit) and by a “players association” rather than a true-blue union. The obvious and stated purpose of decertifying was that it lets the players sue, and with a decent argument: Although, in the intersection between the labor laws and the anti-trust laws, there is an exemption for certain acts in the labor context that would be illegal if labor law didn’t apply, the NFLPA felt that by decertifying they could essentially force antitrust scrutiny of the owners’ behavior. Exhibit A of a case where otherwise illegal anti-trust conduct was exempted because of the intersection between labor law and antitrust was Maurice Clarett v. NFL, decided by the U.S. Court of Appeals for the Second Circuit (New York) and written by then-Judge (now Supreme Court Justice) Sotomayor. Clarett sued the NFL, arguing that the NFL’s rule that you had to be out of college for three years before you could declare for the draft was an unlawful restraint of trade. The district court agreed, but the Second Circuit reversed holding, among other things, that the fact that the NFL had a collective bargaining relationship with a union (even if Clarett wasn’t part of it) shielded the NFL from anti-trust scrutiny even if it could not impose such a rule in the non-union context.
Felix Frankfurter, who drafted the Norris-LaGuardia Act, left us with a final enigma: When will we get some football?
Hence the decertifiation of the NFLPA and the players’ core argument of this case: you can’t lock out non-union employees. There is stuff in the NFL’s response about a “sham decertification” (really a separate issue, though it is important background for the judges), the NFL’s primary response is different, and more technical. The argument is that, whatever the merits of this case — whoever is right or wrong — the Norris-LaGuardia Act says that federal courts simply cannot issue an injunction in this case. In other words, the NFL’s argument is that even if the players were right, a federal court cannot order the remedy they want. This sounds technical and boring, but it’s surprisingly interesting and there is an awful lot of history packed into the few words.
The key language in the Norris-LaGuardia Act prohibits federal courts from issuing injunctions “in a case involving or growing out of a labor dispute.” The Act defines a “labor dispute” to include “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.” That is broad language, and that is essentially the NFL’s argument: This case certainly “involves” or “grows out of” a “controversy concerning” the “negotiat[ion]” or “arrang[ment]” of “terms or conditions of employment”; the two sides were fighting about wages, salaries, and benefits — the way that giant economic pie called the NFL is divided — and so no injunction can issue. End of case.
There is slightly more nuance to that to be found in the NFL’s brief (written, in chief, by the excellent former Solicitor General Paul Clement), but that is the upshot and it was, essentially, accepted by a majority of the Eighth Circuit:
“The district court reasoned that this case does not involve or grow out of a labor dispute because the Players no longer are represented by a union. We have considerable doubt about this interpretation of the Act. . . . The Act does not specify that the employees must be members of a union for the case to involve or grow out of a labor dispute.”
The Eighth Circuit only had to determine a “likelihood of success on the merits,” and will not render a final judgment until after oral arguments in June, but everyone — including the players in their brief — recognize that a majority of the Eighth Circuit is inclined to read the language of the Act broadly and in the NFL’s favor.
But the player’s contrary argument, whether or not ultimately successful, is fascinating, and highlights the unique role and changing nature that laws play in society.
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