Judge: Lockout ruling to take ‘couple of weeks’

Published 9:48 pm Wednesday, April 6, 2011

ST. PAUL — As she wrapped up the five-hour hearing on the legality of the NFL lockout, the federal judge overseeing the case said she’d take “a couple of weeks” to rule on the players’ request to return to work.

U.S. District Judge Susan Richard Nelson, however, urged the two sides not to wait that long.

“It seems to me both sides are at risk, and now is a good time to come back to the table,” Nelson said, noting her willingness to facilitate the resumption of talks toward a new collective bargaining agreement that would put pro football back on track.

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Owners and players failed to reach that goal last month, leading to the decertification of the union, the lockout of the players and the antitrust lawsuit against the owners filed here by the players.

But the two sides don’t agree on much these days.

James Quinn, an attorney for the players, said they’d “listen carefully” to Nelson’s recommendation. But David Boies, a lawyer for the league, hedged when asked about Nelson’s offer to supervise talks.

“We don’t need a settlement of this lawsuit,” Boies said. “What we need is a collective bargaining agreement so that players can go on playing and the league can put on games. Until we have that, we’re not going to make any progress.”

The injunction request — a plea to the judge that the lockout be immediately lifted on the grounds that their careers are being irreparably harmed — was the sole purpose of Wednesday’s hearing.

The court appearance was the first round — call it the first quarter — between the NFL and the players in their legal fight over the future of the $9 billion business and the 2011 season.

Teams of attorneys from both sides, officials from the now-dissolved union, several NFL players and dozens of reporters crowded the courtroom, but little was accomplished other than the formal launch of the legal process.

Boies argued that the court shouldn’t have jurisdiction while the National Labor Relations Board is considering an unfair labor charge filed by the league that players didn’t negotiate in good faith. The NFL’s contention is that the union’s decertification was a tactical maneuver and that it has the legal right to keep players from working.

Boies claimed players are still acting like a union, that the NFL Players’ Association is funding the litigation and has set up other services for the players as if it were a fully formed labor entity. DeMaurice Smith, the head of the NFLPA, attended the hearing, and the players, lawyers and union officials arrived and departed together in a bus.

“They’re financing this lawsuit,” Boies said. “They’re saying, ‘We’re no longer a collective bargaining agent, but we’re going to continue to do all these things.'”

Quinn dismissed the accusation that the decertification was a sham, pointing to unanimous participation in a player vote to approve the move.

“It’s not some kind of tactic. It’s the law,” Quinn said. “It’s what we’re allowed to do.”

Plaintiffs Mike Vrabel, Ben Leber, Vincent Jackson, Brian Robison and Von Miller were joined in court by veterans Tony Richardson and Charlie Batch, members of the union’s executive committee prior to dissolution. Tom Brady, Peyton Manning and Drew Brees, the three highest profile players named on the lawsuit, did not attend.

Hall of Famer Carl Eller, the lead plaintiff in a separate, similar case filed by retirees, former players and rookies, was also present. Nelson approved a motion to consolidate those cases, and attorney Michael Hausfeld — on behalf of the Eller group — took turns with Quinn arguing against and rebutting Boies.

Nelson listened to arguments from lawyers for the players and the league Wednesday, asking questions often and speaking politely but directly while acknowledging her difficulty discerning which components of the laws apply to this complicated case.

She expressed some frustration trying to understand some of the arguments, mostly those made by Boies, but oversaw a cordial process, telling the two sides they did an “outstanding job.” Both sides praised Nelson afterward for her thorough approach and intelligent questions.

As she began the hearing, she urged both sides to stick to the issue of the injunction and not delve into the evidence presented previously in their briefs since all parties are up to speed on the information.

“You can assure that the court has done nothing else in the last few weeks,” Nelson said.

When she reveals her decision, the winner would have leverage whenever talks resume on a new CBA. However, that ruling will all but likely be appealed. She could also defer a decision until after the NLRB rules, which could take months, or declare the need to schedule another hearing to consider the evidence in the case before she rules.

That would be a loss for the players.

“All of this is delay so they want to put pressure on us,” Quinn said.

Boies said factual disagreements — regarding the existence of the union, for one — prove the necessity of another hearing. Boies took roughly double the amount of time to talk than the lawyers for the players did, in part because he was pressed so much by Nelson as she tried to grasp the argument that she has no jurisdiction.

The NFL says a union can’t just “flick a light switch” and decertify to their liking. The two sides spent a long time arguing over the Norris-LaGuardia Act, Depression-era legislation meant to protect workers from a federal judge’s ability to stop a strike.

Quinn pointed to the irony of owners using that to defend a lockout, and Nelson agreed. She sounded firm in her belief that the decertification is legal, pointing to court precedent in the last antitrust suit filed by players in the early 1990s.

“It’s a big risk on their part and they lose a lot by doing it,” she said.

But Boies cautioned afterward against reading too far into the scrutiny.

“I’ve been doing this for 45 years, and I’ve never been able to figure out from a judge’s questions exactly where they’re coming from,” he said.