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