Eighth Circuit rules in favor of NFL on Norris-LaGuardia argument

The U.S. Court of Appeals for the Eighth Circuit sided against the players and in favor of the NFL in ruling that the players’ lawsuit seeking an injunction against the lockout was barred by the Norris-LaGuardia Act. Of course, several news outlets erroneously said the Eighth Circuit “rules that lockout is legal” — it did no such thing (sorry Doug), but instead simply said a suit seeking an injunction could not be brought. Indeed, one of the significant aspects of the ruling was that it left open the possibility that the players could potentially sue for actual antitrust damages at some point down the line, just not right now.

This fact helps point in a direction every fan wants: For this ruling to be relatively meaningless because a settlement will soon be in place. I hope so too. But it’s worth revisiting briefly what was at stake in the actual ruling. As I previously summarized the issue (while predicting that the owners would win this case, as they did):

[T]he NFL’s argument is a straightforward textual argument: No injunctions may issue in cases involving “labor disputes,” and … this sure sounds like a labor dispute. The players’, by contrast, say that you have to read the Norris-LaGuardia Act in context; this language did not drop out of the sky and the NFL’s argument is not at all the way that the Act was intended to be used. [T]heir argument is one about the Act’s purpose and history.

The Norris-LaGuardia Act was passed in 1932, at a time of great strife between employers and organized labor. The principal draftsman of the Act was Felix Frankfurter, a Harvard Law professor who would go on to become a Supreme Court Justice. The problem the prohibition on injunctions was intended to remedy was that employees would go on strike and employers would frequently file a lawsuit requesting an injunction and often judges, who were perceived to be “in the pocket” of employers, would often grant them without hearings or without much process. Even if overturned later, these injunctions forced employees back to work and destroyed unions’ negotiating leverage…

Indeed, this is what I find so interesting about the case: Here we are, in 2011, talking about a dispute between — of all things — football players and owners of football teams, and the key legislation was designed to protect union workers back in 1932 who were being routinely jobbed….

[The players' argument is essentially that] words like “involving or growing out of a labor dispute” cannot be read in a vacuum; they must be read in the context in which they are used. Buttressing this fact, Olson and the players argue that … every case to address the issue has dealt with the barring of lawsuits brought by management seeking an injunction against a strike, and that it has never been held to apply to injunctions against lockouts imposed by employers.

This turned out to be the key debate: a supposedly “plain meaning” approach to the words “labor dispute” to a supposedly “contextual approach” to the purpose of the Act itself. The NFL and a majority of the Eighth Circuit agreed with the former and the players’ and a dissenting judge agreed with the latter. The entire opinion is worth reading, but pieces of both will give the flavor. From the majority opinion:

The text of the Norris-LaGuardia Act and the cases interpreting the term “labor dispute” do not require the present existence of a union to establish a labor dispute. Whatever the precise limits of the phrase “involving or growing out of a labor dispute,” this case does not press the outer boundary. The League and the players’ union were parties to a collective bargaining agreement for almost eighteen years prior to March 2011. They were engaged in collective bargaining over terms and conditions of employment for approximately two years through March 11, 2011. At that point, the parties were involved in a classic “labor dispute” by the Players’ own definition. Then, on a single day, just hours before the CBA’s expiration, the union discontinued collective bargaining and disclaimed its status, and the Players filed this action seeking relief concerning industry-wide terms and conditions of employment. Whatever the effect of the union’s disclaimer on the League’s immunity from antitrust liability, the labor dispute did not suddenly disappear just because the Players elected to pursue the dispute through antitrust litigation rather than collective bargaining.


Aside from the text and structure of § 4, the Players argue that the policy of the NLGA and the legislative history support their position that § 4(a) offers no protection to employers. To be sure, the policy stated in § 2 is that the individual unorganized worker should be free from the interference, restraint, or coercion of employers in the designation of representatives, self-organization, or other concerted activities. But it does not follow that a prohibition on injunctions against employer lockouts is contrary to the policy of the Act. The Supreme Court has observed that while the Act was designed to protect workingmen, the broader purpose was “to prevent the injunctions of the federal courts from upsetting the natural interplay of the competing economic forces of labor and capital.” ….

A one-way interpretation of § 4(a) – prohibiting injunctions against strikes but not against lockouts – would be in tension with the purposes of the Norris-LaGuardia Act to allow free play of economic forces and “to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer.”  We are not convinced that the policy of the Act counsels against our textual analysis of § 4(a).

And from Judge Bye in dissent:

In 1914, after twenty years of judicial interference in labor conflicts on the side of the employers, Congress stepped in to protect organized labor by passing sections 6 and 20 of the Clayton Act. Section 20 of the Act generally prohibited the issuance of injunctions in cases involving or growing out of labor disputes. See 29 U.S.C. § 52. It soon became apparent, however, that what was supposed to be the “charter of liberty of labor,” Felix Frankfurter & Nathan Greene, The Labor Injunction 164 (1930) (remarks of William Howard Taft), fell short of the promise. The Lochner-era judges adopted a narrow interpretation of the Act, restricting it to “trade union activities directed against an employer by his own employees.” “[T]o protect the rights of labor in the same manner the Congress intended when it enacted the Clayton Act,” Congress passed the Norris-LaGuardia Act, under which “the allowable area of union activity was not to be restricted . . . to an immediate employer-employee relation.”  Through its holding in this case today, the majority reaffirms the wisdom of the old French saying used by Felix Frankfurter and Nathan Greene when describing judicial reluctance to enforce § 20 of the Clayton Act: “the more things are legislatively changed, the more they remain the same judicially.”  Despite the repeated efforts of the legislative branch to come to the rescue of organized labor, today’s opinion puts the power of the Act in the service of employers, to be used against non-unionized employees who can no longer avail themselves of protections of labor laws. Because I cannot countenance such interpretation of the Act, I must and hereby dissent.

  • JMV

    Nice writeup, but I think you missed a major point. The Court rulled that Nelson could not issue and injunction against the league locking out the players currently under contract. But they also ruled that she could possibly enjoin the lockout with respect to rookies and free agents.

    So, while the players have an incentive to settle, so does the league.

  • Anonymous

    I agree — I was just focused on the pure Norris-LaGuardia arguments. There is looming anti-trust liability for the NFL, this ruling just says the current players can’t get an injunction right now. The incentive for both sides is to settle. I was more interested in this post in the stuff not directly related to this current football dispute at this moment in time.