ST. LOUIS — 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.”
Players attorney Theodore Olson told reporters afterward that he wouldn’t speculate about how the court might rule.
“We hope the arguments we presented in the briefs and in court will be persuasive,” he said.
Some 200 people were in the jammed courtroom, taking advantage of folding chairs set up in the attorneys’ seating area. Among them were some two dozen players, including Green Bay’s Cullen Jenkins, the Jets’ Tony Richardson and Giants standout Osi Umenyiora.
Players leader DeMaurice Smith was there. NFL Commissioner Roger Goodell was in Fort Bragg, N.C., a league spokesman tweeting that Goodell isn’t a lawyer and “wouldn’t have added much to the legal proceedings.”
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.”
Indianapolis Colts owner Jim Irsay has said he believed some decisions on opening training camps late next month needed to be made by July 4 and one sports labor expert believes the ruling will be expedited.
“They know that they have to move fast. We all know that training camps open in mid-July,” said Jay Krupin of the Washington-based law firm EpsteinBeckerGreen. “I wouldn’t be surprised if some of their clerks are already starting writing their opinion.”
Both sides spent three straight days talking in private near Chicago before the making their way to St. Louis. All parties declined comment, citing a court-ordered confidentiality agreement, and a federal magistrate canceled next week’s scheduled mediation sessions, citing the “confidential settlement negotiations.”
A person with knowledge of the talks told The Associated Press that the term doesn’t necessarily mean an agreement is near. The person, speaking on condition of anonymity because of the confidentiality order, said canceling next week’s sessions was simply a way to keep the process private.
More likely than another round of mediated talks would be a similar secret meeting between the league and players. Such meetings between former union executive director Gene Upshaw and former Commissioner Paul Tagliabue often led to progress on a new CBA.
“At the front of the stage is the mediation, where they can walk out and smile for the TV cameras, but the back channel is really what makes the deal happen,” Krupin said.
Any progress would be welcome.
“We can’t just go from where we are now and jump into games,” said free agent offensive tackle Damien Woody, who last played for the New York Jets. “There has to at least be an abbreviated training camp to get us somewhat prepared for the season. If not, there are going to be a lot of injuries. … Training camp usually starts in late July, and time is running out because it’s already June. I think we have to get a deal done by late July at the latest.”
Free-agent linebacker Ben Leber, one of 10 plaintiffs on the still-pending antitrust lawsuit against the league, said the players haven’t discussed a specific drop-dead date for reaching an agreement.
“Both sides have a day, whether they want to make it public or not,” Leber said. “The biggest challenge is going to lie with whose day is going to come up first.”
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