FYI: SI primer on what to expect in Wednesday hearing - New England Patriots Forums

***MoLewisrocks*** · 04-05-2011, 08:21 AM

SI's legal eagle offers insight into what will likely go into Judge Nelson's decision making process, what the players have to prove in order to prevail and how/what the league will counter those arguments with in order to prevail, and what will happen when whichever side that loses appeals (although he doubts the Eight Circuit would overturn on appeal).

He opines that it will be an uphill battle for the players to prevail in securing a preliminary injunction and explains the very sound (far reaching) reasons why that is (other unions adopting the tactic). He opines that a players win on the larger case while more likely could take years and absent a preliminary injunction against the lockout the players will be more likely to bend toward terms more favorable to the league in order to get back to work (or back to a situation where they can begin to collect various payments and benefits again).

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There are four basic factors that players need to convince Judge Nelson of for her to grant the motion. No single element will prove determinative; Judge Nelson will instead balance them and determine whether to grant the players a preliminary injunction or preserve the lockout's status quo until the merits of the players' arguments can be heard in a full trial.

It should be noted that judges are often reluctant to order preliminary injunctions because while preliminary injunctions are modestly labeled "preliminary", they pose a substantial impact on the final outcome of a case. Courts have sometimes described a preliminary injunction as an "extraordinary" remedy that should only be awarded upon a clear showing. Bottom line: the players will have an uphill battle in obtaining a preliminary injunction.

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First, the players will have to show that they would probably win on their legal claims in a full trial.

The players can probably show that they would win in antitrust litigation against certain aspects of the NFL's business model, most notably the salary cap and the college draft.

The players may enjoy less success arguing that the lockout itself is illegal. Employers generally preserve the right to lockout employees to safeguard against financial losses, such as those from an impending labor strike. Employers cannot use a lockout, however, to avoid bargaining or to merely improve their bargaining position.

Given that the NFLPA decertified before the league commenced its lockout, the league can argue that it was the NFLPA that sought to avoid bargaining. The league can also maintain that it ordered a lockout only to avoid the financial losses that teams would suffer from the decertification.

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Second, the players will have to show a threat of irreparable harm, which refers to a harm that cannot be adequately remedied by money damages, which the NFL would be ordered to pay if it loses the antitrust trial.

The NFL will respond with a persuasive point: assuming for the sake of argument that these are cognizable harms, money damages could, in fact, remedy the players, as courts are usually capable of determining a payment schedule for hard-to-quantify harms.

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Third, the players will have to convince Judge Nelson that a preliminary injunction would not harm the NFL more than it helps the NFLPA.

The NFL, in turn, will insist that a preliminary injunction would place NFL players in unfairly advantageous position, and would harm the economic interests of NFL owners... Along those lines, the NFL will insist that a preliminary injunction would be premature until the NLRB decides on the NFL's labor charge. The league will also cite the Norris-LaGuardia Act, which discourages the use of injunctions while labor and management are at impasse, as evidence of the harm it would suffer from a preliminary injunction.

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Fourth, the players will have to show that a preliminary injunction would advance the public's interest. Given the popularity of NFL football, the players may have their best argument here.

On the other hand, Judge Nelson will consider the public's interest in how granting the players' motion in this case could impact the granting of similar motions in other types of labor disputes, including those that have nothing to do with sports. She may be concerned that granting an injunction here would encourage other unions to pursue the decertification path.

Read more: What to expect in Tom Brady vs. NFL injunction hearing - Michael McCann - SI.com

PrairiePat · 04-05-2011, 08:35 AM

I've been looking for something of this nature for a while now; very informative. Thanks for the link.

DW Toys · 04-05-2011, 08:59 AM

[QUOTE=MoLewisrocks;2513290]SI's legal eagle offers insight into what will likely go into Judge Nelson's decision making process, what the players have to prove in order to prevail and how/what the league will counter those arguments with in order to prevail, and what will happen when whichever side that loses appeals (although he doubts the Eight Circuit would overturn on appeal).

He opines that it will be an uphill battle for the players to prevail in securing a preliminary injunction and explains the very sound (far reaching) reasons why that is (other unions adopting the tactic). He opines that a players win on the larger case while more likely could take years and absent a preliminary injunction against the lockout the players will be more likely to bend toward terms more favorable to the league in order to get back to work (or back to a situation where they can begin to collect various payments and benefits again).

Agreed Cousin, Thank you. Interesting.
DW Toys

lostjumper · 04-05-2011, 01:38 PM

[QUOTE=DW Toys;2513302]

Quote:

Originally Posted by MoLewisrocks

SI's legal eagle offers insight into what will likely go into Judge Nelson's decision making process, what the players have to prove in order to prevail and how/what the league will counter those arguments with in order to prevail, and what will happen when whichever side that loses appeals (although he doubts the Eight Circuit would overturn on appeal).

He opines that it will be an uphill battle for the players to prevail in securing a preliminary injunction and explains the very sound (far reaching) reasons why that is (other unions adopting the tactic). He opines that a players win on the larger case while more likely could take years and absent a preliminary injunction against the lockout the players will be more likely to bend toward terms more favorable to the league in order to get back to work (or back to a situation where they can begin to collect various payments and benefits again).

Agreed Cousin, Thank you. Interesting.
DW Toys

And thats the problem for the union. Even though its likely they win in the long term, there is no way their players could survive locked out for that period of time. Half of them would either be in jail or in serious debt. Heck, a player rep who most of us think is a pretty smart guy just got busted at a casino at 5:30 in the morning. If he's the smart one...

***MoLewisrocks*** · 04-06-2011, 08:32 AM

Breer has tweeted that the schedule for the court today calls for 20 minute arguments for the Brady team, the Eller team (merged suit), followed by two 20 minute rebuttal periods for the NFL lawyers. No cameras or tweeting from the courtroom. Starts at 10:30 our time so there should be a decision of some sort (most likely to not announce a decision while judge takes it all under advisement) shortly after noontime. Some are speculating that the judge may have some things to say designed to instill a little doubt in both sides as a means to nudging them back to into negotiations and some kind of settlement pending any decision.

If she ultimately rules for the players and grants an injunction, the league will immediately request a stay pending it's appeal to the 8th Circuit Court in Denver. That would likely be granted since the alternative would be a small window of potential chaos subject to being wiped out if the injunction were later overturned and the lockout upheld. The injunction is the key ruling, since even if she agrees to advance the anti trust case in the absence of it that will be a defeat for the players whom we all know cannot remain unified long enough to get that case to trial.

So bottom line is we will likely not know or see anything different after noon today than the status quo and a lot more media speculation and biased spinning based on anything Judge Nelson utters.