Saturday, June 4, 2011

Lawyers for NFL, players make their arguments

An hour of legal arguments, complete with references to obscure court cases and wrangling over terminology, gave way to the defining moment of Friday's showdown between the NFL and players in the U.S. Court of Appeals for the 8th Circuit.

The three-judge panel could make a ruling that will help decide when, and if, the 2011 season begins.

But before the session ended, presiding judge Kermit Bye made clear that doesn't have to be the case.

"We will take this case and render a decision in due course,'' he said. "We won't, I might also say, be all that hurt if you're leaving us out and if you should go out and settle the case.''

For now, however, the issue of the lockout's legality is left in the hands of Bye and fellow judges Steven Colloton and Duane Benton, who heard arguments by attorneys for the two sides at the Thomas F. Eagleton Courthouse.

More than 20 players attended the hearing along with NFLPA executive director DeMaurice Smith and New York Jets owner Woody Johnson. Commissioner Roger Goodell did not make an appearance.

By adding seats, the court also was able to accommodate a national media contingent and squeeze in more than 30 members of the public. Judge Bye acknowledged the rarity of a 'standing-room only" crowd.

They listened to NFL attorney Paul Clement and players attorney Ted Olson spend a good deal of their allotted 30 minutes grappling with the issue of antitrust law vs. labor law in light of the NFLPA's decision to decertify in March.

The league was appealing a decision rendered by the district court, which sided with the players to end the lockout. However, the 8th Circuit granted the NFL two stays to extend the lockout until it can issue a ruling on its legality.

The NFL continued to argue that the Norris-LaGuardia Act prohibits the injunction that was delivered by district judge Susan Richard Nelson.

"What we hope the rest of the world takes home is that the fastest way to get football back on the field is to get extraneous antitrust law considerations out of this and get back to the bargaining table," Clement said on the steps of the courthouse.

Clement argued repeatedly that the league would not have instituted a lockout if it didn't think an agreement was on the horizon, calling it "a self-inflicted wound" and 'suicide." He emphasized the belief that this is a labor dispute.

Olson contended that because the players' union took steps to decertify, they now fall under antitrust laws. He said he knows of 15 cases in which the league has been found in violation of those laws. Clement said the league should be protected from antitrust lawsuits for a year.

"The league desperately wants these employees to be part of a union so they can violate the antitrust laws," Olson said during his argument. He added, "The players are perfectly happy to be protected by the antitrust laws, which the laws of the United States give them that choice.''

Meanwhile, Clement said that his claim that a lockout is a tool used to gain a settlement is based on law.

"A lockout, by its nature, doesn't make any economic sense unless it's designed to be a labor-law tool to get people to reach a collective bargaining agreement,'' he said.

Colloton, who is from Des Moines, Iowa, and Benton (Kansas City) spent considerable time asking questions of the two attorneys while Bye (Fargo, N.D.) remained mostly quiet. Bye cast the lone dissenting vote on the two stays that extended the lockout.

He did inquire of Clement in the final minutes if he would concede that the players are suffering irreparable harm as a result of the lockout. Clement disagreed and added an anecdote.

"We have reports that come in virtually on a daily basis," he said, "where players say 'This is the best thing that ever happened to me. I'm enjoying my summer. I have more time with my family than ever before.'"

Olson said the day before the hearing that he wouldn't predict victory and indicated that he was willing to take the case to the U.S. Supreme Court if necessary.

After being on the losing side of the two stay decisions, he remained confident.

"We believe the arguments we presented in the briefs and in the oral arguments will be persuasive," he said as he left the courthouse.

Among the players on hand were Rams offensive tackle and player representative Adam Goldberg, Minnesota defensive end Brian Robison, New York Giants defensive end Osi Umenyiora and Kansas City guard Brian Waters.

Nobody was willing to comment on the meetings that took place between the league and players this week in Chicago. They were seen as a sign that some movement might take place before the judges can rule on the appeal, a decision that is expected to take at least two weeks.

"We're here today to try to lift the lockout so players can play football," NFLPA spokesman George Atallah said. "That doesn't mean that settlement negotiations can't continue. You've seen that over the last couple of days."

By Stu Durando,, 314-340-8232


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