NFL and players argue in the 8th Circuit over the legality of the lockout

Listen to the oral argument here. I highly recommend doing this and not simply reading the summaries, if for no other reason than to hear two excellent advocates — Paul Clement for the NFL and Ted Olson for the players.

Update: I just finished listening to the oral argument, and I think, if there is no settlement, the NFL definitely wins this appeal.

The Associated Press summed up the argument thusly:

The NFL and its players went back to court Friday for a pivotal hearing before a federal appeals court on the legality of the lockout, now nearly three months old with no sign of a new collective bargaining agreement that would save the 2011 season.

The two sides each got roughly 30 minutes before a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis, swapping sometimes-dense arguments over the lockout imposed by owners after labor talks fell apart in March.

The panel has twice decided to keep the lockout in place pending the full appeal. It did not issue an immediate decision and Judge Kermit Bye smiled as he told the attorneys before they left the courtroom: “We wouldn’t be all that hurt if you go out and settle that case.” . . .

At the heart of the hearing was U.S. District Judge Susan Richard Nelson’s decision on April 25 to lift the lockout, saying it was illegal and agreeing with the players that they were suffering harm.

In a case Bye called complex, given its collision of antitrust and labor law, attorneys for both sides spent most of the 68-minute hearing arguing case law and legal precedent, at times pressed to elaborate by two judges – Steven Colloton and Duane Benton – whose earlier rulings sided with the league.

Paul Clement, a former U.S. solicitor general representing the NFL, insisted the Norris-LaGuardia Act bars injunctions in cases arising from a labor dispute, which he maintained was in play here. He said Nelson’s decision ran afoul of that statute.

“When you look at this case, the first and clearest obstacle is the Norris-LaGuardia Act,” Clement said, pitching that the effort to resolve the dispute would be better outside a courtroom. “Ultimately, collective bargaining is a much better way to resolve these disputes than antitrust litigation.”

Olson countered that the Norris-LaGuardia Act didn’t apply without organized labor activity, noting that the players’ union legally dissolved March 11 before the court fight.

“The players are perfectly happy to be protected by antitrust laws,” he argued, insisting the NFL is “recidivist” in violating such laws.

Olson said players continue to be harmed financially by the lockout, saying “there is damage being done every single day to the players.”

Clement, when asked by Bye about his view on that issue, refused to concede Olson’s claim, saying “any evidentiary hearing before the court would bear that out,” though he didn’t think it necessary.

The 8th Circuit has been seen as a more conservative, business-friendly venue for the NFL than the federal courts in Minnesota and the league quickly appealed Nelson’s order. The owners were rewarded with a pair of 2-1 rulings in their favor from the same panel that heard Friday’s hearing.

When the appeals court will rule is an open question, with Bye saying it will come in “due course.
[. . .]

My earlier discussion of the Norris-LaGuardia Act can be found here.

  • Ballboy

    The judges seemed asleep at the wheel. First lawyer was better than the second, but I didn’t think the court was very engaged. I agree that the NFL wins.

  • Jwallace0317

    I think Clement was terrific.  He clearly explained how this is the kind of dispute that is best resolved through the (eventual) negotiation of a new CBA, and lockouts and strikes are the tools the parties have to conclude that process.  He also did a good job of focusing on the difference between decertification and disclaiming a union, and that unlike most other labor-management disputes this is clearly a case where the union will “pop back up” when it’s beneficial to the players.

    I don’t think Olson succeeded in persuading the court on his interpretation of the Norris-Laguardia Act.  A lockout doesn’t involve a “labor dispute” under the Act, but a strike would?  I recognize the background of the Act, but the plain text is what it is.  As a canon of contruction, you’re not supposed to construe a statute beyond its plain text, unless the phrasing of the plain text produces an absurd result, which would not happen here.  

  • Anonymous

    I agree that Clement was better. Clement’s argument was clever that, although the specific issue Congress was worried about was that workers were being screwed over because of injunctions against their strikes, what they did was use neutral language that had been used in prior Acts. I agree that Olson couldn’t really connect. I also expected Judge Bye to ask more questions that would be friendly for Olson or that were adverse to Clement. It was overall a fairly cold to medium bench, but Bye was pretty absent (which is why I take his whole “Neither side will like our result” at the end with a grain of salt).

  • JMV

    I took it differently. I thought he might be alluding to a splitting of the baby type ruling. I could definitely see the court deciding that Nelson cannot rule on an injunction until September, after which the league is barred from invoking labor law. 

    That would keep the lockout in place, but leave the threat of having to reappear in front of Nelson in 3 months.