Judge Nelson denies stay

[SteveBsFan]

I hate this off-season so far And I don't see it getting much better until week 1 or 2 of the regular season when desperation kicks in.

 

[Deus Irae]

I haven't been able to read Nelson's complete ruling on the stay but, from what I have read, it seems to me that the league would be well served to announce the following tomorrow morning:

The draft will go ahead as planned
Draft trades may include players currently under contract
A schedule for offseason activitives will be announced on Monday
A date for the start of free agency will be announced on Monday

That would allow for the draft day trades, which shouldn't really be problematic, and still give time for the league to file its emergency appeal with the 8th. I can't see the players and Nelson both holding that as an unacceptable course to take.

 

[mb6592]

Sure you can. This is going precisely as was generally predicted from the beginning, even though it's not Doty making the rulings.

The league staked its hopes on 2 things. One was the NLRB. That's gone, unless that pro-owner 8th circuit reverses on appeal. The other is the 8th circuit overturning the district court in the courts. In either case, now, it comes down to the 8th as expected, which is what I noted.

Judges aren't ideologically "pro owner" or "pro player" as you keep ramming home. However, they can generally be classified as liberal (living, breathing, blah, blah, blah) or conservative (interpreters, not legislators). It's funny how you state, “This is going precisely as was generally predicted from the beginning, even though it's not Doty making the rulings” without pointing out that both Nelson & Doty are liberals: Heard of Susan Nelson? Judge may decide NFL's future - NFL - CBSSports.com Football - “Nelson was nominated by Sen. Amy Klobuchar, a liberal democrat from Minnesota…before joining the bench Nelson made several political contributions, all to Democrats."

As for Doty (that conservative stalwart appointed by Reagan)? Well, I dug up this interesting tidbit: High-Stakes Moves Over Choice for Judge - "The recommendation of the Republican senators from Minnesota that David Doty be considered as a federal district court judge had languished at the Justice Department for more than 10 months because of fears that he and his wife were too liberal.”

Yet, you are quick to point out that she may be overturned by the "pro owner" (how'd you come up with that? Do they have a reputation for not creating laws, rights, edicts from the bench?) 8th Circuit. If it comes down to a reversal by the 8th, you can be sure it will be based more profoundly on actual legislation. Something along the lines of this:

To keep it as simple as possible, Nelson's opinion is overly formalistic and it reads the words "growing out of" out of Norris Laguardia. The labor statues say that courts need to stand down and Congress has barred them from entering injunctions in labor disputes. These statutes arise from the time when unions tried to bust strikes by getting sympathetic judges to enjoin the strikers and make them go back to work. The law now says that so long as there is a labor dispute, the courts can't enter injunctions. Instead, they have to let the bargaining and negotiation play out, before using the hammer of anti-trust law.

The players argue that the instant the union decertified, there no longer was a "labor dispute" within the meaning of the law. Nelson accepted that, ruling that the only issue one looks at for determining whether there is a "labor dispute" is whether the union took formal steps to disband. The NFL argues that the transition from labor dispute to litigation dispute doesn't happen overnight. It's a process, and the statutes recognize it as such -- barring not just labor disputes but also actions "growing out of" labor disputes.

I think the NFL is right on the language and the legislative intent of the statutes. Under any meaning of the words -- common sense or formal -- this is plainly still a labor dispute. The players don't really even try to say otherwise with a straight face. They just say, "we formally disbanded, that's that."

One of the interesting differences between this case and the 1991 case is that in their legal papers 20 years ago, the NFLPA after decertifying submitted affidavits that they would not reconvene after resolution. The NFL hammers them in their briefs for this -- arguing it's plainly still a labor dispute. The NFLPA doesn't even try to say the same thing again this time, but Nelson said it wasn't necessary.

 

[Deus Irae]

Judges aren't ideologically "pro owner" or "pro player" as you keep ramming home. However, they can generally be classified as liberal (living, breathing, blah, blah, blah) or conservative (interpreters, not legislators). It's funny how you state, “This is going precisely as was generally predicted from the beginning, even though it's not Doty making the rulings” without pointing out that both Nelson & Doty are liberals: Heard of Susan Nelson? Judge may decide NFL's future - NFL - CBSSports.com Football - “Nelson was nominated by Sen. Amy Klobuchar, a liberal democrat from Minnesota…before joining the bench Nelson made several political contributions, all to Democrats).

As for Doty (that conservative stalwart appointed by Reagan)? Well, I Dug up this interesting tidbit: High-Stakes Moves Over Choice for Judge - "The recommendation of the Republican senators from Minnesota that David Doty be considered as a federal district court judge had languished at the Justice Department for more than 10 months because of fears that he and his wife were too liberal.”

Yet, you are quick to point out that she may be overturned by the "pro owner" (how'd you come up with that? Do they have a reputation for not creating laws, rights, edicts from the bench?) 8th Circuit. If it comes down to a reversal by the 8th, you can be sure it will be based more profoundly on actual legislation. Something along the lines of this:

Judges can be ideologically pro owner, despite your claim. This isn't some closely guarded secret. Also the whole "nominated by" thing would be more persuasive if simple glances at the Supreme Court decisions didn't show how little that can sometimes mean.

I'm further to the right, politically, than any current member of the Supreme Court, yet I would frequently rule with the lefties on the court when it came to 4th amendment cases if given the opportunity, because it's not about party. It's about perspective. The 8th circuit is pro-owner/anti-union.

If you've got a problem with that characterization, take it up with William Gould:

Sean Jensen of the Chicago Sun-Times interviewed a former chairman of the National Labor Relations Board (NLRB) who described the 8th Circuit as reversing many of their decisions against employers.

Former chairman William Gould said, “[p]hilosophically, they’re hostile to the rights of unions and workers to engage in union activity, and, in this case, not to engage in union activity.”

The Lockout Ruling Still Depends on the Conservative 8th Circuit Court of Appeals | The Big Lead

 

[mac]

I haven't been able to read Nelson's complete ruling on the stay but, from what I have read, it seems to me that the league would be well served to announce the following tomorrow morning:

The draft will go ahead as planned
Draft trades may include players currently under contract
A schedule for offseason activitives will be announced on Monday
A date for the start of free agency will be announced on Monday

That would allow for the draft day trades, which shouldn't really be problematic, and still give time for the league to file its emergency appeal with the 8th. I can't see the players and Nelson both holding that as an unacceptable course to take.

Common sense. Hope it happens. Why muck up the league's showpiece off-season event?
And both players and teams need time to work free agency.

 

[mb6592]

If you've got a problem with that characterization, take it up with William Gould

Please. You must be %$@&ing me. This William Gould?

NLRB Chief Scolded for Prop. 226 Stand - Los Angeles Times

Our maybe you'd prefer it in his own words: How Obama could fix labor law. - By William B. Gould IV - Slate Magazine

You'll excuse me if I don't accept William Gould, the radical unionist, as the authority as to whether or not the 8th circuit is really "pro owner" or just less likely to change law from the bench (choosing instead to follow actual laws written by legislators).

 

[Deus Irae]

Please. You must be %$@&ing me. This William Gould?

NLRB Chief Scolded for Prop. 226 Stand - Los Angeles Times

Our maybe you'd prefer it in his own words: How Obama could fix labor law. - By William B. Gould IV - Slate Magazine

You'll excuse me if I don't accept William Gould, the radical unionist, as the authority as to whether or not the 8th circuit is really "pro owner" or just less likely to change law from the bench (choosing instead to follow actual laws written by legislators).

No, I won't excuse you for that. You're trying to politicize something by party and/or place on the political spectrum. I'm avoiding doing just that. This is about perspective, not political party. As I noted, I'm politically to the right of all 9 current Supreme Court justices and I'd still be ruling with the lefties on a lot of 4th amendment cases.

 

[Deus Irae]

Since I can't sleep, I waited for the judge's ruling to be posted. It really is a scathing ruling, and it's one that really opens the judge up to be absolutely and completely humiliated if she is overruled on appeal. She must be both extremely confident that the 8th circuit will uphold her decision and annoyed at the tactics taken by the owners (and/or owners' lawyers).

Here's the link to the PDF:

http://a.espncdn.com/media/pdf/110427/order.pdf

 

[moosekill]

Since I can't sleep, I waited for the judge's ruling to be posted. It really is a scathing ruling, and it's one that really opens the judge up to be absolutely and completely humiliated if she is overruled on appeal. She must be both extremely confident that the 8th circuit will uphold her decision and annoyed at the tactics taken by the owners (and/or owners' lawyers).

Here's the link to the PDF:

http://a.espncdn.com/media/pdf/110427/order.pdf

Or she is so extremely arrogant she doesn't care.

 

[BSR]

I haven't been able to read Nelson's complete ruling on the stay but, from what I have read, it seems to me that the league would be well served to announce the following tomorrow morning:

The draft will go ahead as planned
Draft trades may include players currently under contract
A schedule for offseason activitives will be announced on Monday
A date for the start of free agency will be announced on Monday

That would allow for the draft day trades, which shouldn't really be problematic, and still give time for the league to file its emergency appeal with the 8th. I can't see the players and Nelson both holding that as an unacceptable course to take.

Couldn't the owners say that they will do all the above EXCEPT start free agency. I only read a bit of the stay denial but it seems that she says that she just lifted the lockout and didn't obligate the owners to sign new players.

If that is the case, then I would think the owners could refuse to sign new players until a new CBA is in place which means there has to be a union any union. The league can continue, but only with the players currently under contract under the old CBA.

 

[Triumph]

Since I can't sleep, I waited for the judge's ruling to be posted. It really is a scathing ruling, and it's one that really opens the judge up to be absolutely and completely humiliated if she is overruled on appeal. She must be both extremely confident that the 8th circuit will uphold her decision and annoyed at the tactics taken by the owners (and/or owners' lawyers).

Here's the link to the PDF:

http://a.espncdn.com/media/pdf/110427/order.pdf

Most lawyers are annoying.

Just saying.

 

[Rob0729]

Well, she did clarify that to the issue of contracts, she is not ordering a free market system and that things like franchise tags, salary caps, etc. are still legal. She also stated that free agency must technically start, but no teams have to sign players (so in reality, it can be delayed indefinitely). Since this was a discussion earlier in this thread, this clears it up.

There was no doubt she was going to deny the stay. Her burden to grant a stay is that she felt it was likely that the owners would win on appeal. No judge feels their judgements are going to be reversed on appeal. So of course she was going to deny it. The NFL did win a minor victory that she specifically stated that she is not ordering a free market system, the league could empose rules that already exist, and they are under no obligation to sign a single player to a contract.

As for her being annoyed and sternly worded response, I am no expert of that but glancing at the document I didn't see anything that really stood out. I have seen far more scathing responses from the Supreme Court responses especially from dissenting decisions. Judge Nelson knew this was coming and David Boise is one of the most respected lawyers in the country, I doubt she would embarrass him on a national stage. Florio who read the response didn't see anything that stood out (although he was surprised about the wording of the original decision).

 

[townes]

Judges aren't ideologically "pro owner" or "pro player" as you keep ramming home. However, they can generally be classified as liberal (living, breathing, blah, blah, blah) or conservative (interpreters, not legislators).

This is complete and utter crap. The Roberts Court has been one of the the most activist in history and they are your supposed "strict constructionists"

 

[h0c2000]

A date for the start of free agency will be announced on Monday

With free agency, how do you see the franchise/transitional/ and RFA tenders playing out, based on no stay? I'd think that'd be a path the owners probably don't want to go down if they strike out in the 8th circuit. Of course, money later could solve all that.

 

[Mike in 333]

I was kind of neutral in this fight until I saw the owner's proposed timeline for the Appeals Court process. They are requesting that they produce their written arguments by May 10, the players' would be required to produce their argument by May 24 and then the owners would have until May 31 to file their reply. This is clearly not the response of a group that is in any way interested in settling the dispute in a timely manner.

I think that at this point my sympathies have shifted to the players' side. At least they have an interest in getting back to football. I'm not sure what the league was thinking when proposing such an extended timeline, the arguments won't change from those that have already been presented. This is unlikely to help the owners in the court of public opinion.

 

[MoLewisrocks]

I was kind of neutral in this fight until I saw the owner's proposed timeline for the Appeals Court process. They are requesting that they produce their written arguments by May 10, the players' would be required to produce their argument by May 24 and then the owners would have until May 31 to file their reply. This is clearly not the response of a group that is in any way interested in settling the dispute in a timely manner. I think that at this point my sympathies have shifted to the players' side. At least they have an interest in getting back to football. I'm not sure what the league was thinking when proposing such an extended timeline, the arguments won't change from those that have already been presented. This is unlikely to help the owners in the court of public opinion.

In the court of appeals process, that timeline is expidited. Normally the process would take three times as long.

 

[PatsFaninAZ]

Deleted.

Looking at the other thread and what happened to it, I've changed my mind and think I'm going to sit this one out.

 

[mb6592]

No, I won't excuse you for that. You're trying to politicize something by party and/or place on the political spectrum. I'm avoiding doing just that. This is about perspective, not political party. As I noted, I'm politically to the right of all 9 current Supreme Court justices and I'd still be ruling with the lefties on a lot of 4th amendment cases.

FYI, conservative/liberal is not, at least in the US, a political party. My parents are as conservative (social) as they come but vote Democratic because of the toys (they're over 70). You're excused for accusing me of making this about political parties. What it's become about (which PatsFaninAZ has already pointed out' - "the law states "and the statutes recognize it as such -- barring not just labor disputes but also actions "growing out of" labor disputes"), at least as it now stands within the courts, is how a particular judge rules from the bench (liberally - living, breathing.... or conservatively - what does the law actually say).

 

[Mike in 333]

I think Nelson's opinion is not great. She starts off with the wrong standard.

She cites general law for a stay, which is not the issue. It was Nelson who altered the status quo by entering an injunction. Pendente lite relief (an injunction) is an extraordinary remedy. The standard for staying an injunction is different from the standard for a stay of a final order. The standard for a stay of an injunction pending appeal is even lower. Her attempt to distinguish cases from her own district is weak. The main case on which she relies -- Nken v. Holder -- was an immigration case in which a court reached a final decision on the merits (to deport an alien) and the question was whether he should be deported pending appeal. The Supreme Court actually ruled that a lower standard is required than the one requested by the government. Yet, she thinks this is relevant authority for a stay of an injunction pending an expedited appeal. Sigh. She's an amature. I wish this case had gone to someone who actually had been a district court judge for a while.

I don't necessarily think the core of her analysis will be reversed, although I think her discussion of NLA is shaky. But she has gone so far out of her way to be obviously results-oriented that it pisses me off. And I actually favor the players' side of this.


And for those asking, a 3 week schedule for an 8th Circuit appeal is extremely expedited.

Thanks for the assessment of the timeline. It would still very likely be mid-June before before the appeals court would hear arguments so best case scenario would be mid to late June before their decision. What should we expect in the meantime as far as a stay of Judge Nelson's ruling? Is that something that would be hours / days / weeks away?
I'm not a lawyer but have been involved in enough litigation to know that speed is a very relative term in legal proceedings.

 

[PatsFaninAZ]

I know some of you are lawyers -- if you have access to Pacer, check out the exchange of letters in the 8th Circuit last night. Pretty good stuff.

I know that ESPN claims to have "legal experts," but these guys should really just subscribe to pacer and forget about their "sources," who don't even apparently know how to read. They are missing some juicy stuff.

Looks as though counsel taking the lead will be Paul Clement for the league and Ted Olson for the players. This is the legal equivlant of Ali/Fraser. Both are former U.S. Solicitor Generals (the nation's top lawyer), and are probably two of top appellate lawyers in the U.S. if not the top 2. Good stuff. Getcher popcorn ready, to quote T.O.

Per the above, I won't comments on the merits of this stuff, because y'all are clearly insane. (I say this with love.) Procedurally, what's happening is this: League filed its application for a stay last night. I think it's great. It really rips Nelson a new one. They gave the league a lot to work with. NLFPA has committed to filing an opposition today by noon, although it's not on line yet. In the meantime, the parties have exchanged nasty letters regarding whether the court should enter a temporary stay (of a day or two) while it considers the motion for stay proper.