Players Brief filed with the 8th Circuit

[theogt]

Does anyone have a pdf of this? I can get it off the court's website, but not in pdf from. Here's the summary of the players' arguments against Norris-Laguardia for the legal junkies:

First, the NFL elides the widely accepted meaning in the NLGA of “labor dispute,” which confines that term to cases involving collectively organized employees. Section 13(c), which the Court cited in the stay order, does not expand the definition of “labor dispute” beyond that settled meaning, but rather confirms that the NLGA applies to secondary boycotts—precisely the reason the NLGA was enacted. Similarly, the phrase “grows out of a labor dispute” does not mean that the NLGA applies when a labor dispute no longer exists. Instead, it describes the reach of the NLGA when there is a “labor dispute,” extending the statute’s coverage to cases involving parties other than the immediate participants in the dispute.

Second, if there were any ambiguity about the scope of Section 13, it would be resolved by Section 2. Section 2 prescribes how courts are to “interpre[t]” the NLGA, 29 U.S.C. § 102, and emphasizes that the statute was designed to “protect working men in the exercise of organized, economic power, which is vital to collective bargaining,” Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. Co., 353 U.S. 30, 40 (1957). Courts must take Section 2 “into consideration in interpreting the [NLGA]’s language and in determining the jurisdiction and authority of federal courts.” Order of R.R. Telegraphers v. Chi. & Nw. Ry. Co., 362 U.S. 330, 335–36 (1960). Yet the NFL fails to consider the import and significance of this congressionally enacted mandate. Interpreting the NLGA as stretching beyond the context of organized labor would amount to a sweeping expansion of the statute that cannot be reconciled with Section 2’s interpretive command.

Third, the NFL’s analysis of Section 4(a) is novel, unprecedented, and contrary to both the text and purpose of that provision. In the 80 years since the NLGA was enacted, Appellees are aware of no appellate decision ever holding that lockouts fall within the “no injunction zone” of Section 4. To the contrary, the First, Seventh, and Ninth Circuits have concluded that Section 4(a) does not apply to employer conduct at all. Adherence to the stay order’s preliminary analysis is incorrect as a matter of statutory construction and would bring this Court into direct conflict with the decisions of those circuits.

Fourth, the NFL ignores the controlling decision in Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976). Mackey is the only decision of this Court that squarely resolved an NLGA challenge in professional football, and it did so against the position advanced by the NFL in this case. In Mackey, this Court rejected the NFL’s argument that the NLGA barred an injunction against restraints in the player market. This Court expressed considerable doubt about whether the case involved a “labor dispute” at all, but then held that the district court made the findings necessary to satisfy Section 7. See id. at 623. Because the findings in Mackey are materially indistinguishable from the district court’s findings here, see Op. 71–81, Mackey forecloses the NFL’s cursory argument that the court violated Section 7. Remarkably, and revealingly, the NFL’s brief does not discuss—or even cite—Mackey.

Fifth, the stay order suggested that the district court might have erred in failing to hold an evidentiary hearing under Section 7. But this Court has joined numerous other courts of appeals in concluding that an evidentiary hearing is unnecessary where the facts are undisputed, as is the case here. See Kan. City S. Transp. Co. v. Teamsters, 126 F.3d 1059, 1067–68 (8th Cir. 1997). Indeed, the NFL never even made such a request except in passing references in response to questions at oral argument. See, e.g., App. 521:4–7.

 

[theogt]

Money quote:

In the 80 years since the NLGA was enacted, Appellees are aware of no appellate decision ever holding that lockouts fall within the “no injunction zone” of Section 4. To the contrary, the First, Seventh, and Ninth Circuits have concluded that Section 4(a) does not apply to employer conduct at all.

The 8th Circuit panel is going to have to do some serious tapdancing starting June 3.

 

[adbutcher]

Money quote:

The 8th Circuit panel is going to have to do some serious tapdancing starting June 3.

Indeed. The people are watching but only a few care.

 

[firehawk350]

Indeed. The people are watching but only a few care.

I'm cheering for an injunction but only because I want a season. I don't like either side but if a court can order football to be played, I'd be all about that.

 

[Hostile]

The 8th Circuit panel is going to have to do some serious tapdancing starting June 3.

No they won't. Holy cow man, you of all people should know that they have not actually ruled on the owners appeal yet. What a bunch of sensationalist crap you are selling, and worse, people buy it.

They ruled in favor of a stay on the injunction to end the lockout citing sufficient proof had been presented by the owners to have a full ruling on the subject.

That does NOT mean the 8th Circuit Court of Appeals will automatically rule in favor of the owners on June 3rd. They might. That possibility does exist because they already feel that the NFL made a compelling case.

Tell me about how the NFL is suing the players. You might as well buy into every line of crap being spewed.

 

[theogt]

No they won't. Holy cow man, you of all people should know that they have not actually ruled on the owners appeal yet. What a bunch of sensationalist crap you are selling, and worse, people buy it.

They ruled in favor of a stay on the injunction to end the lockout citing sufficient proof had been presented by the owners to have a full ruling on the subject.

A full ruling was going to be made on the injunction, regardless of whether the stay was issued or not. They're separate issues.

That does NOT mean the 8th Circuit Court of Appeals will automatically rule in favor of the owners on June 3rd. They might. That possibility does exist because they already feel that the NFL made a compelling case.

My reference to the panel needing to do some tapdancing relates to this statement from the opinion:

In sum, we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits.

If the panel is willing to express that it has "serious doubts" about the jurisdiction and is "likely to succeed on the merits", it certainly lends credence to the idea that they're leaning towards ruling for the owners in the injunction appeal. If that is the case, they will need to do some "tapdancing" around the law.

It's possible they weren't tipping their hand, but rather were nudging the players to fully brief out the issue (they did NOT brief the issue thoroughly for the stay ruling).

 

[Hostile]

A full ruling was going to be made on the injunction, regardless of whether the stay was issued or not. They're separate issues.

Duh, at least you got that right.

My reference to the panel needing to do some tapdancing relates to this statement from the opinion:

Yeah, I read that. I assume you realize that is their hope for the judges and does not make it fact? I hope.

If the panel is willing to express that it has "serious doubts" about the jurisdiction, it certainly lends credence to the idea that they're leaning towards ruling for the owners in the injunction appeal. If that is the case, they will need to do some "tapdancing" around the law.

Again, no they won't. This is sensationalist crappola. They will rule based upon the evidence presented and their ruling will support the weightier matters as it pertains to law. I should also note that their ruling may or may not be upheld if this goes to higher courts. Their ruling is critical, but there is no "tap dancing around laws."

It's possible, they weren't tipping their hand, but rather were nudging the players to fully brief out the issue (they did NOT brief the issue thoroughly for the stay ruling).

Oh, so you are capable of admitting to what is actually in play. Good to know.

Tell me about the use of the word "cartel" as it pertains to the owners and don't forget, I want to hear about how the NFL is suing the NFPLA*.

 

[SkinsFan28]

Here is a link to the pdf.
http://www.ca8.uscourts.gov/nfl/ca8_live.11.cv.1898.3790055.0.pdf

and the addendum:
http://www.ca8.uscourts.gov/nfl/ca8_live.11.cv.1898.3790056.0.pdf

 

[theogt]

Yeah, I read that. I assume you realize that is their hope for the judges and does not make it fact? I hope.

Not sure what you're referencing here. That was a quote directly from the judges expressing in their opinion that the owners were "likely" to prevail.

Again, no they won't. This is sensationalist crappola. They will rule based upon the evidence presented and their ruling will support the weightier matters as it pertains to law. I should also note that their ruling may or may not be upheld if this goes to higher courts. Their ruling is critical, but there is no "tap dancing around laws."

No evidence is presented. They rule based on the law. The facts are not disputed. They will have to justify their ruling based on the application of the law to the facts. In order to do so, they'll need to do some tap dancing.

Tell me about the use of the word "cartel" as it pertains to the owners

What do you want to know? Do you want me to tell you what the definition of a cartel is?

and don't forget, I want to hear about how the NFL is suing the NFPLA*.

The NFL is not suing the NFLPA. The NFLPA is not even a party to the lawsuit. I'm not sure why you keep referencing this.

 

[Hostile]

What do you want to know? Do you want me to tell you what the definition of a cartel is?

Oh I know what a cartel is. You might want to let the attorneys for the NFLPA* know what it is.

The NFL is not suing the NFLPA. The NFLPA is not even a party to the lawsuit. I'm not sure why you keep referencing this.

Because DeMaurice Smith keeps lying to people and saying the NFL is suing, you buy every other load of crap he and his cohorts spew so I assume you buy that too.

Progress finally.

 

[AdamJT13]

The NFL is not suing the NFLPA. The NFLPA is not even a party to the lawsuit. I'm not sure why you keep referencing this.

He's probably referencing DeMaurice Smith's claims that the NFL is suing to not play football. I'm not sure whom Smith is claiming that the NFL has sued.

By the way, if anyone wants to keep up with all of the garbage in this case, every document gets uploaded here --

http://www.ca8.uscourts.gov/nflUpdates.html

 

[theogt]

Oh I know what a cartel is. You might want to let the attorneys for the NFLPA* know what it is.

The NFL is a cartel, by definition.

Because DeMaurice Smith keeps lying to people and saying the NFL is suing, you buy every other load of crap he and his cohorts spew so I assume you buy that too.

Progress finally.

Why would I care what he says or listen to him?

 

[theogt]

He's probably referencing DeMaurice Smith's claims that the NFL is suing to not play football. I'm not sure whom Smith is claiming that the NFL has sued.

By the way, if anyone wants to keep up with all of the garbage in this case, every document gets uploaded here --

http://www.ca8.uscourts.gov/nflUpdates.html

I know what he's referencing, I just don't know why.

Thanks, I didn't realize the court was making the documents public (outside of PACER). I had been running up the PACER charges getting the docs (and couldn't get them in PDF).

 

[DCDave]

Money quote:

The 8th Circuit panel is going to have to do some serious tapdancing starting June 3.

I thought that Theodore Olson absolutely brought his A-game with this brief. Thoroughly and persuasively destroyed the panel's analysis on the temporary stay. Analysis was just overwhelming. Of course, Paul Clement is representing the league so the reply should be strong, but I genuinely think the players have a chance to turn the panel to their side, which I thought was extremely unlikely after reading the ruling on the temporary stay.

 

[theogt]

I thought that Theodore Olson absolutely brought his A-game with this brief. Thoroughly and persuasively destroyed the panel's analysis on the temporary stay. Analysis was just overwhelming. Of course, Paul Clement is representing the league so the reply should be strong, but I genuinely think the players have a chance to turn the panel to their side, which I thought was extremely unlikely after reading the ruling on the temporary stay.

Didn't even realize Olson had his name on it. Both sides are bringing out the heavy hitters on this one (not that they weren't at trial level too).

 

[burmafrd]

It all comes down to whether the panel thinks the anti trust laws should apply in this case or not; that any federal laws really apply here. I believe that is what the League should have been arguing from Day One. The laws were not written nor intended to be used in situations like this in sports or entertainment.

 

[dirtycallahan]

snippet from article with one guys interpretation on the effects of the upcoming ruling:

http://eye-on-football.blogs.cbssports.com/mcc/blogs/entry/22475988/29466293

Here's the biggest problem, for those hoping the lockout will end: if the Appeals Court rules that the NFLPA broke up in good faith and is truly no longer a union (versus simply disbanding for legal leverage), they will establish a nightmarish precedent for themselves.

Here's an example that may or may not simply be for the purpose of referencing The Wire, which is all the rage these days: If the Baltimore Union of the International Brotherhood of Stevedores decides it's being treated unfairly and wants to pursue litigation against its employer, Hypothetical Widget Shipping, Inc., it cannot dissolve the union, file a lawsuit and re-unionize later. At least not right now.

But it could -- potentially anyway -- do such a thing should the Appeals Court rule in favor of the players. (Edit: There is a difference between the status of sports leagues and other places of employ re: anti-trust status. But the point remains that the court would open itself up to a different interpretation of the law. Also, a better example could be: the NBA.)

This is problematic for the courts because it completely flips the jurisdiction of all labor disputes, if a union is willing to disband.

Remember, the Court of Appeals is pro-business; they're not "pro Roger Goodell." They don't care about this case in the sense of "How can we keep the players from winning?" They care about this case in the sense of "How does this effect future legal proceedings?"

Which is why it seems quite unlikely that the 8th Circuit will favor the players, regardless of how strong their arguments are.

 

[DallasEast]

http://dictionary.law.com/Default.aspx?selected=146

cartel noun

1) an arrangement among supposedly independent corporations or national monopolies in the same industrial or resource development field organized to control distribution, set prices, reduce competition, and sometimes share technical expertise. Often the participants are multinational corporations which operate across numerous borders and have little or no loyalty to any home country, and great loyalty to profits. The most prominent cartel is OPEC (Organization of Petroleum Exporting Countries), which represents all of the oil producing countries in the Middle East, North Africa and Venezuela. Many cartels operate behind a veil of secrecy, particularly since under American antitrust laws (the Sherman and Clayton Acts) they are illegal.
2) a criminal syndicate like the international drug cartel headquartered in Colombia.

***

So, basically, the trade association has decided to legally and blanketly align the super-secret National Football League with Arabian oil sheiks and Colombian drug lords. Nice. Then again, it does seem like someone we all know and love adopts the aura of a pusher man from time-to-time ...

http://i356.***BLOCKED***/albums/oo4/DallasEast1701/d634f1ca.jpg
Oh Superfly!​

You're gonna make your fortune by and by
BUT IF YOU LOSE, don't ask no questions why
The ONLY game you know is do or die​

Superfly
Superfly
Superfly
Superfly

Trying to get over
Trying to get over
Trying to get over ...​

This court crap keeps getting better and better.

 

[theogt]

snippet from article with one guys interpretation on the effects of the upcoming ruling:

http://eye-on-football.blogs.cbssports.com/mcc/blogs/entry/22475988/29466293

Here's the biggest problem, for those hoping the lockout will end: if the Appeals Court rules that the NFLPA broke up in good faith and is truly no longer a union (versus simply disbanding for legal leverage), they will establish a nightmarish precedent for themselves.

Here's an example that may or may not simply be for the purpose of referencing The Wire, which is all the rage these days: If the Baltimore Union of the International Brotherhood of Stevedores decides it's being treated unfairly and wants to pursue litigation against its employer, Hypothetical Widget Shipping, Inc., it cannot dissolve the union, file a lawsuit and re-unionize later. At least not right now.

But it could -- potentially anyway -- do such a thing should the Appeals Court rule in favor of the players. (Edit: There is a difference between the status of sports leagues and other places of employ re: anti-trust status. But the point remains that the court would open itself up to a different interpretation of the law. Also, a better example could be: the NBA.)

This is problematic for the courts because it completely flips the jurisdiction of all labor disputes, if a union is willing to disband.

Remember, the Court of Appeals is pro-business; they're not "pro Roger Goodell." They don't care about this case in the sense of "How can we keep the players from winning?" They care about this case in the sense of "How does this effect future legal proceedings?"

Which is why it seems quite unlikely that the 8th Circuit will favor the players, regardless of how strong their arguments are.

This assume the union that decertifies is able to seek the protection of antitrust law. That may not be the case. It should also be noted that the union that decertifies not only shoud lose the restraints of Norris-Laguardia, but it also loses the protections of labor law. So it isn't a decision made lightly, particularly if antitrust violations aren't so clear. So, the slippery slope argument isn't very compelling here. What's funny is, the players aren't asking for a change in the law -- they're only asking to have the law applied as it has for the last 80 years. It's the owners asking for the law to be changed (or applied in a new scenario).

 

[theogt]

So, basically, the trade association has decided to legally and blanketly align the super-secret National Football League with Arabian oil sheiks and Colombian drug lords. Nice. Then again, it does seem like someone we all know and love adopts the aura of a pusher man from time-to-time

The word "cartel" is used most often in the case of drug lords, yes. The term, however, has a broader application than that, of course. The association by the public of the term with drug lords does seem inevitable, but I think the judges are bright enough to understand how they're using the term.