With Judge Susan Nelson lifting the lockout via court order on Monday, plenty of you have plenty of questions.
We’ve tried to anticipate 10 of them.
And then we tried to answer them.
1. What does it mean?
In short, it means that the players’ strategy has worked, so far. When the union decertified, the objective was to place the players in position to block a lockout. Now, football can continue — with the players getting paid — while the two sides potentially move toward working out an agreement, at some point.
Of course, if the NFL prevails on appeal, the lockout will continue until the players agree to terms. With the lockout lifted, the players will be able to dig in, since their ability to work and be paid won’t be riding on their willingness to strike a deal.
2. What happens next?
The league wants to “stay” (i.e., delay) the lifting of the lockout pending an appeal to the U.S. Court of Appeals for the 8th Circuit. The argument will be that opening the doors temporarily and then closing them after winning the case on appeal will create an undue hardship for the league.
If the league gets a stay, the lockout will remain in effect until the appeal is resolved.
If the league doesn’t get a stay, the lockout ends — and the new “league year” starts, with free agency and trades and players being cut and offseason workouts and, basically, business as usual. Unless and until the league wins on appeal.
3. What will happen on appeal?
The league is confident that it will win the appeal. The confidence comes in part from the fact that 13 of the 16 judges (active and senior status) assigned to the U.S. Court of Appeals for the Eighth Circuit were nominated by Republican presidents. Though judges sometimes stray from their pre-bench political ideologies once they land lifetime appointments, the league surely likes its chances of getting a conservative, pro-business panel.
Initially, three judges (from the active and senior status) randomly will be assigned to the case. Persuading two of them will deliver a win.
The losing party then can file a petition for the case to be heard again before all of the active judges, and any senior status judges that served on the original three-judge panel. Those requests aren’t granted routinely, but this isn’t a routine case.
While the loose red state/blue state, pro-business/pro-labor composition of the 8th Circuit superficially favors the NFL, the standard that applies on appeal favors the players. The appeals court won’t be reviewing Judge Nelson’s work from scratch. Instead, the decision will be upheld unless the appeals court determines that Judge Nelson abused her discretion.
The 89-page written ruling seems was expertly crafted to avoid a finding that Judge Nelson acted unreasonably. Even if at least two of the three judges assigned to the case are inclined to conclude that the decertification of the union was a sham or that the courts must defer to the NLRB or that the Norris-LaGuardia Act prevents a court from enjoining a lockout, Judge Nelson’s reliance on past cases from the 8th Circuit supporting the idea that a so-called “preliminary injunction” can be obtained even if the likelihood of winning the case is lower than 50 percent, the question of whether the appellate judges believe the decertification of the union is valid doesn’t matter. All that matters for now is whether the players have shown that they have a “fair chance of prevailing” at trial, a standard used most recently by the 8th Circuit in a case decided in 2008. For the purposes of the appeal, the judges would be required to find that Judge Nelson abused her discretion in concluding that the players have a “fair chance of prevailing” at trial.
As we explained earlier in the month, it’s similar to the deference that a referee must give to the call on the field during replay review. Instead of substituting the referee’s judgment for the judgment of the official who made the call, the referee must look for evidence demonstrating that the call was clearly wrong. While Judge Nelson’s decision doesn’t have quite as much leeway, it’s simply not enough for the appeals court to disagree with her interpretation of the law. To overturn the decision to lift the lockout while the litigation proceeds, the appeals court must believe that the decision amounts to an abuse of the discretion inherent to trial courts.
4. When will free agency start?
That depends on several factors. If the NFL fails to finagle a stay, free agency could begin by the end of the week.
With a stay, free agency won’t happen unless and until the appeals court upholds Judge Nelson’s ruling.
Even if the league can’t delay the lifting of the lockout pending appeal, veteran players scheduled for free agency shouldn’t want the process to be rushed. Truly big money won’t be spent unless teams have had a chance to digest the rules for 2011, to set their budgets, to assess their needs, and to develops specific plans for the players who will be targeted.
As to rookie free agents who aren’t drafted, the players should push for the immediate signing of contracts, so that teams will be able to engage in their annual post-draft land rush for 15-20 undrafted rookies.
5. Can players be traded?
In theory, yes. But the league will ignore that issue until it learns whether a stay will be granted. If the ruling isn’t stayed, however, the league will have to allow trades.
And the union will push for that to happen immediately, since it will promote the movement of players during the draft, given that draft picks and players would be available as trade compensation.
6. Will the 2010 rules be used in 2011?
It’s unclear at this point. Many have assumed that the NFL will simply repeat the 2010 rules, which entailed no salary cap, no salary floor, and six years to unrestricted free agency.
With the players poised to challenge any rules implemented by the teams as a violation of the antitrust laws, the NFL needs to select the rules for 2011 carefully. If the league goes too far, the league will lose the antitrust lawsuit. If the league crafts rules narrowly aimed at ensuring competitive balance, the league could win the antitrust lawsuit — and the players would be stuck with a system that entails none of the protections that a union provides.
7. Will there be a rookie wage scale?
It depends. The league can impose one, and then the players would challenge it as an antitrust violation.
8. Will the parties continue to negotiate?
Yes. Mediation is scheduled to resume on May 16. The fact that the players won their motion to lift the lockout doesn’t end the case. The antitrust lawsuit continues, and a settlement of the case would become the next labor deal between the NFL and the players.
Though players like Domonique Foxworth have said that the players never intend to re-form the union, the problem with that approach is that any settlement between the current players and the league wouldn’t be binding on the annual influx of new players, who could challenge any of the rules to which the current players agree as violations of the antitrust laws.
Thus, the only way to reach a long-term labor accord will be to negotiate a new CBA, or to see the litigation to completion, with the league learning via trial and error (and the expenditure of millions in legal fees) what can and can’t be done from an antitrust standpoint.
9. How long could this take to resolve?
Years. But once the ruling lifting the lockout is finalized via the appeals process, football would continue until the antitrust case ends, as it did in the 1990s after the union decertified.
10. What happens to the “lockout insurance” case?
It still moves forward, even if there is no lockout (and thus no reason to use “lockout insurance”). Judge David Doty found last month that the league violated the CBA but failing to maximize the television revenue. At a minimum, the players are entitled to any money that the league “left on the table” when negotiating ongoing payments during a lockout instead of getting more money during the years of the deal not affected by a work stoppage.