While the NFL (or any other business, for that matter) has the right, if the league were to do so it would be suicidal, not only from a business perspective, but a political perspective, as well.
The reasoning behind the veiled threat is/was this: in closing up shop, the NFL is basically doing what the NFLPA did when they decertified. The logic being, what’s good for the goose is good for the gander.
The problem, of course, is the NFLPA decertified in an attempt to thwart the lockout. The NFL would be doing so to beat the players in a battle of attrition, thus getting them to bend on concessions around the $9.3 billion in revenues that the NFL pulls in.
But, a quick examination gives one all the reason to understand why it would be a colossal mistake.
More than a few stadiums are funded with public dollars. In shutting down the league, it would place making debt obligations in jeopardy. The network partners would sue for breach of contracts. Season ticket and suite holders would sue the league. Cities that host NFL teams would sue to reclaim lost wages to workers at stadiums, and lost tourism dollars. Sponsors would sue..... Well, you get the picture.
It’s a nice scare tactic. Just one that takes about a split second to realize it’s nothing more. While one might debate whether the NFL and/or the players have done some stupid things over the course of this labor battle, having the NFL shut down the league would rank up there as the pinnacle of dumb moves in sports history.
Our exclusive interview this week is with NFL Players Association spokesman George Atallah.
Topics for the Atallah interview whether the players are being irreparable harmed due to the lockout; how an expedited hearing for the Eighth Circuit factors into the players’ position; comments on a report that surfaced saying a group of as many as 70 players that were dissatisfied that talks broke down on March 11 were seeking representation to have a voice at the negotiating table; whether the players might file contempt of court charges against the NFL; comments on Roger Goodell’s op-ed in the Wall Street Journal and whether the players are looking to upend the “golden goose” by having unlimited free agency, the Draft, and more; and finally, emotional comments regarding Dave Duerson and what the ongoing issue of health and safety for the players in the National Football League.
For questions or comments about the Bizball Radio podcast, send them to PodcastATBusinessofSportsNetworkDOTcom
Click to read the order for the administrative stay, thus putting the lockout back on.
The lockout is back on in the NFL, possibly for a short period, but also for much longer as 2 of 3 judges on a panel for the US Court of Appeals for the Eighth Circuit granted an “administrative stay” of lower court ruling, thus putting the lifted lockout back in play.
The stay is a temporary one designed to allow the NFL and the players to give the court “long filings” – responses as to why there should, or should not, be a stay of Judge Susan Nelson’s ruling striking down the lockout as causing “irreparable harm” to the players. The order reads in part, “The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal.”
The panel, which is comprised of two republican appointees and one democrat, saw Judge Kermit Bye, a George W. Bush appointee, as the lone dissenting vote.
Bye said in his dissenting opinion, “I am unaware of a general practice in this circuit of resolving requests for stays pending appeal in non-emergency situations in a two-step process (entertaining a request for a temporary administrative stay until we can hear from both sides, followed by a grant or denial of the request for a stay itself),” Bye said. “In a criminal case, for example, we do not grant a temporary administrative request for release pending appeal while we wait for the government to respond to the defendant's request for release pending appeal.”
The NFL has claimed that not having the lockout lifted would harm them until the appeal on Judge Nelson’s ruling is fully heard. That implementing trades and free agency, only have to the lockout put back in place by a possible ruling by the Eighth would be so chaotic as trying to “unscramble the eggs.” In his dissenting opinion against the administrative stay, Judge Bye did not agree.
“Finally, to justify the granting of the stay itself, the NFL must show it will suffer some irreparable harm by allowing the district court's order to take effect. By necessary extension, I believe some showing of irreparable harm must also be shown to justify the entry of a temporary stay pending review of the motion for a stay. Based on the materials which have been filed in this case up to this point, the NFL has failed to satisfy me it will suffer any irreparable harm from allowing the district court's order to take effect.”
It is expected that the Eighth will rule on a lengthy stay until the case is fully heard by the court – the second part of what Judge Bye referenced as the “two-step process” – this coming week.
After Judge Susan Nelson late yesterday denied the NFL’s request for a stay on her ruling that the lockout of the players was in violation of antitrust law, the NFL was in the position of being in contempt of her ruling by not letting players use team facilities. Today, the league acquiesced, even though they are working on the Eight Circuit Court of Appeals to rule on a stay being issued. The following is a statement issued by the league regarding rules by which the players can return to the facilities:
The NFL clubs have been notified that we have requested from the Eighth Circuit Court of Appeals a stay of the preliminary injunction issued late Monday afternoon by the Federal District Court. Pending further guidance from the Eighth Circuit, we believe it is appropriate for clubs to take additional steps in response to the preliminary injunction. The clubs were informed of the steps below that will be effective on Friday at 8 am ET following tonight’s first round of the NFL Draft. Clubs are free to contact players immediately to advise them of the hours that the facility will be open for their use, to schedule medical and rehabilitation activity, and to arrange meetings with coaches or related activity, such as film study or classroom work.
1. Players will be permitted to use club facilities for physical examinations, rehabilitation and medical treatment, as scheduled by the club.
2. Clubs will be permitted to distribute playbooks, game film and other similar materials to players.
3. Coaches may meet with players for the purpose of discussing any materials distributed to players under item 2 above, as well as the club’s off-season workout program, its schedule of mini-camps, Organized Team Activities (“OTAs”), and other similar matters.
4. Voluntary off-season workout programs, including OTAs and classroom instruction, may begin subject to the rules in Article XXXV of the 2006 CBA and Appendix L. Participating players will be paid $130 per day, provided the player fulfills the club’s reasonable off-season workout requirements. Such workouts will count toward the requirements of any off-season workout bonus in the player’s contract.
5. On days during which no official off-season workouts or OTAs are scheduled under item 4 above, nothing shall prevent the club from permitting any player to use the club facility to work out on his own on a voluntary, unpaid basis during normal business hours, or such other hours as may be set by the club, provided: (i) there is no participation or supervision by any coach, trainer or other club personnel; and (ii) the club has first verified that the player has an existing medical insurance policy in place. Players without such personal coverage should not be permitted to work out at the club facility on an unsupervised basis under this item 5, but may do so under item 4 above. Unsupervised workouts will not count toward the requirements of any off-season workout bonus in the player’s contract. This item 5 will apply both prior to and after the commencement of the club’s official off-season workout program.
6. Mandatory and voluntary mini-camps may begin subject to the rules in Article XXXVI of the 2006 CBA.
7. The league office will promptly make arrangements to resume counseling, rehabilitation and treatment activities in connection with the substances of abuse and steroid programs. We will advise clubs as to when and on what basis testing will commence.
8. Players may participate in club-sponsored charitable and community relations events.
With respect to player transactions (such as signings, trades of player contracts, terminations, tryouts, etc.), we plan to distribute to all clubs, likely tomorrow, a comprehensive set of procedures governing such transactions. This will include the timing for the commencement of the 2011 League Year, free agent signings and other customary player transactions. Source: National Football League
The legal drama around the NFL continues as Judge Susan Nelson has denied a motion by the league to stay her ruling regarding the lifting of the lockout in the NFL saying "the NFL has not met it burden for obtaining a stay pending appeal, expedited or otherwise." In doing so, the NFL quickly shifts to the Eighth Circuit of Appeals in St. Louis to see if they will issue a stay, thus keeping the lockout in place.
According to Albert Breer of NFL.com (via Twitter), basically, Nelson agreed that players suffer irreparable harm as lockout goes on, and said that league didn't meet burden for granting stay. According to ESPN NFL Insider Adam Schefter, the “Judge ordered NFL to start its league year immediately, but said no team is obligated to sign free agents. Trades in question…. Judge's 20 page order takes her 89 page order from Monday and hits the major points even harder. Makes NFL's attempt to get overturned harder.”
Nelson cited case law in denying the motion saying, "Because a stay is not a matter of right, but rather 'an exercise of judicial discretion,’” the applicant “bears the burden of showing that the circumstances justify an exercise of that discretion.”... “Because the burden of meeting this standard is a heavy one, more commonly stay requests will not meet this standard and will be denied.”
Nelson rejected claims argued by the NFL, addressing the league's attempt to get a stay while waiting to have the Eighth Circuit hear the appeal.
"[T]his Court need not address this matter further because even under the lenient standard that the NFL proposes, the League still is not entitled to a stay pending appeal. Even if a lesser showing on the merits is permissible, the NFL would have to compensate for that lower showing with a strong showing of irreparable harm to it pending the appeal (and, more precisely, a strong showing of its harm compared to what a stay would inflict on the Players)."
Pounding further on the league, Nelson adds, "The NFL has shown no such injury resulting from or in any way related to this Court’s Order, which, importantly, only enjoins the lockout. The NFL argues that it will suffer irreversible injury and irreparable harm–not because the lockout has been lifted–but by the potential signing of contracts between owners and players in a freeagency market."
Nelson added that while she has ordered the lockout to be lifted, it does not mean the players can leverage the league into certain actions. She also added that until the matter is fully resolved in the Eighth, the case is not fully set in stone.
"The NFL is only in the position of any defendant who has been accused of illegal action, but not (yet) found liable. The League can choose either to continue its allegedly-illegal behavior until judgment, or to modify its behavior. But nothing legally compels either choice between April 25 and any future th Eighth Circuit decision," Nelson wrote. "In such an environment, the Players cannot force any onerous contract terms on the NFL. In fact, nothing in this Court’s Order obligates the NFL to even enter into any contract with the Players. In short, the world of 'chaos' the NFL claims it has been thrust into–essentially the “free-market” system this nation otherwise willfully operates under–is not compelled by this Court’s Order."
Inflicting more pointed words, Nelson said, "With respect to the NFL’s alleged injuries, this Court finds the League’s claim of irreparable harm, absent a stay, misplaced."
Adding to the confusion, according to Schefter, the league will tell the teams to hold their current position of not letting players into club training facilitates pending 8th Circuit Ruling on the stay. That could mean that unless the Eighth hears the case exceptionally fast, the NFL and its clubs could be held in contempt of Judge Nelson’s ruling.
Nelson pointed out that the season could be in jeapordy based on the appeal to the Eighth Circuit saying, "The NFL’s argument assumes the Eighth Circuit will rule before the season begins. In the absence of a motion seeking an expedited appeal, that seems unlikely."
Looking to keep the players from going back to work, the NFL requested a stay on Judge Susan Nelson’s ruling that the players were being “irreparably harmed” by the current lockout on Monday. But in a response today by the players in the antitrust case, they said that Nelson “should deny the NFL Defendants’ motion for a stay of preliminary injunction pending appeal.” The players added that if Nelson did issue a stay keeping the lockout in place that the NFL should be made “to post a bond in the amount of $1 billion, which represents roughly 25% of the amount that the players were compensated last year and is an appropriate amount given the uncertainty of the timing or outcome of the Eighth Circuit’s ruling on the NFL Defendants’ appeal, the ongoing irreparable harm to the players, and the amount of treble damages that the NFL Defendants may be liable for at the conclusion of this litigation.”
With the amount being substantial, the league asked, and Nelson granted, time for the NFL to respond to the $1 billion bond request. Nelson gave the NFL till 4pm CT today reply.
The response by the players pounded on the NFL saying repeatedly that they had put themselves in the current situation.
“The NFL Defendants argue that a stay should issue because the Court’s grant of a preliminary injunction has forced them into a dilemma: either risk violating the antitrust laws (by imposing last year’s system or some other system that players may challenge) or suffer the alleged injuries arising from “unrestricted free agency,” the filing read, adding, “That, however, is not the case. If the NFL Defendants are faced with a dilemma, they put themselves in that position by repeatedly imposing rules and restrictions that violate the antitrust laws…. Any alleged predicament is of their own making.”
Lawyers for the players offered a solution to the owners, albeit one they will likely not peruse. “There is no dilemma because the NFL Defendants have a viable third choice: implement a new player system that does not violate the antitrust laws,” the filing reads. “There is no reason why the NFL Defendants cannot devise a lawful player system, and their complaints about potential antitrust scrutiny are not well-founded where such scrutiny is a reality of doing business.”
When Judge Susan Nelson ruled in favor of the players in the NFL at close of business of Monday, a host of questions began to swirl. Nelson’s ruling is a key step, but by no means the final one. In a nutshell, she ruled that since the NFLPA had dissolved, the league was “irreparably harming” the players by imposing what was technically a boycott of the players. With 32 clubs and the league working in concert, that action broke with antitrust law. Without Judge Nelson staying her own ruling, the lockout was to be lifted.
But, as mentioned, the ruling went down at 5pm ET, close of business. With the NFL saying, would “promptly seek a stay from Judge Nelson pending an expedited appeal to the Eighth Circuit Court of Appeals,” the question is, what happens next? Here’s a primer that runs the gamut:
A Stay From Judge Nelson
As outlined, the NFL quickly requested Judge Nelson issue a stay on her ruling. The reasoning is playing itself out as you’re reading: with the lockout lifted (for now), players are reporting to league facilities. Knowing that the NFL plans on appealing, the request from the league for the stay last night outlined what would happen if the NFL went back to “business as usual” only to have the Eighth rule in the NFL’s favor and the lockout, once again, in play. As the NFL claimed, going back to business would be like trying to “unscramble the eggs” should the Eighth rule in the league’s favor.
What’s the Soonest Judge Nelson Could Respond on Stay Request?
Settle in. It won’t be today. Nelson has given the players until 9am on Weds. to respond to the NFL’s request. That means she would likely not rule on the stay request until Thurs at the very earliest, possibly next week.
Why Would Judge Nelson Agree to a Stay if She Didn’t Do One Herself?
According to Stanford law professor, and former National Labor Relations Board chairman William Gould, the basis for the NFL’s emergency request is tied to time. “Nelson would likely only issue a stay if she felt the NFL could get the Eighth Circuit to hear the appeal in a short period of time,” Gould said. The reasoning would be based on Nelson seeing the players being irreparably harmed.
What If Nelson Refuses to Grant the Stay?
According to Gould, the NFL would then immediately have a request for a stay be heard by the Eighth Circuit.
Is there Recourse after the Eighth for a Stay?
There is the possibility that a higher court could come into play. “The NFL could request a stay to a justice of the Supreme Court,” said Gould.
What Happens When the Case Goes to the Eighth Circuit?
When the case finally makes it to the Eighth Circuit, a panel of three judges will hear the appeal. The judges are selected on a lottery basis from a pool of all the judges in the Eighth. Gould noted that the Eighth is the most conservative court in US, with many judges being republican appointees that are more business friendly.
Will the Ruling From the Panel of Three Judges Be the End of It?
Not necessarily. The losing side in the case could actually request that the case be reheard by the entire Eighth Circuit. There are currently 11 “active judges” and 5 “senior judges”.
Is that the End of The Lockout Story?
Not necessarily. If, let’s say, the NFL were to lose in the Eighth Circuit, they could potentially petition the US Supreme Court to hear the case.
What Would Happen if There were no Stay Issued, and the Lockout is Lifted? Is there “Doomsday”?
Just after Judge Nelson’s ruling last night, Commissioner Goodell was featured in an op-ed published in the Wall St. Journal. In it, Goodell painted a “doomsday scenario” in which, “Under the union lawyers' plan, reflected in the complaint that they filed in federal court, the NFL would be forced to operate in a dramatically different way.” Goodell goes on to say how the NFL’s model that has made it a revenue-making juggernaut would be broken. That there would be no draft, no minimum salary, etc. Ostensibly resulting in anarchy. While anything is possible, Goodell is likely working to incite fear with fans. Here’s what’s more likely. If stay is not granted through each request, the league would have to try and implement a series of rules to govern matters such as free agency, minimum salary, etc. Each rule could then be subjected antitrust scrutiny by lawyers for the former union. In other words, the players would go along with aspects that they see beneficial to them.
What’s the Read End Game?
That depends on which side you’re on. For the players, the hope is that all stays are denied and that they win any appeals. In that sense, they gain all the leverage and get to a point where they agree to establish themselves as a union again after all antitrust leveraging has been exhausted. For the owners, it would be to get the lockout back in play, and then use time as a weapon of attrition – the longer the lockout drags out, the more likely the players will begin to fragment and cave to demands.
When Does it All End?
If you’re asking whether it’s a matter of the sides not caving and going through the court system, we could see the appeal to the Eighth being active late May or early June. But, based upon any appeal, it could be the end of summer. If the Supreme Court were in play, it could be longer. The reality is, depending on where leverage resides, it could be resolved by the sides more quickly. That isn’t going to happen until the case plays out further in the Eighth Circuit. We could have the lockout lifted, and then imposed again. We could have a stay until the Eighth hears the case and the lockout would remain. In other words, we’re a ways off from seeing the light at the end of the tunnel in the NFL labor dispute. You, the fans, are still in limbo.
Judge Susan Nelson has rule in favor of the players in their antitrust lawsuit and approved their request for an injunction to lift the owners’ imposed lockout. The NFL has said prior that they will appeal the ruling to the Eighth Circuit where a final determination would be rendered. That appeal may not be heard until the summer.
The nation’s labor laws have always applied only where an action involves or grows out of a labor dispute. Such a labor relationship exists only where a union exists to bargain on behalf of its members. Where those employees effectively renounce the union as their collective bargaining agent–and accept the consequences of doing so–and elect to proceed in negotiating contracts individually, any disputes between the employees and their employers are no longer governed by federal labor law. Likewise, the Norris- LaGuardia Act, which applies only to preclude some injunctions in the context of “labor disputes,” also no longer applies here to preclude injunctive relief. The NFL urges this Court to expand the law beyond these traditional dictates and argues that the protections of labor law should apply for some indefinite period beyond the collapse and termination of the collective bargaining relationship. In the absence of either persuasive policy or authority, this Court takes a more conservative approach, and declines to do so.
This Court, having found that the Union’s unequivocal disclaimer is valid and effective, concludes there is no need to defer any issue to the NLRB. Because that disclaimer is valid and effective, the Norris-LaGuardia Act’s prohibition against injunctive relief does not preclude granting the Player’s motion for a preliminary injunction against what the League characterizes as a “lockout.”
The NFL released a statement saying:
We will promptly seek a stay from Judge Nelson pending an expedited appeal to the Eighth Circuit Court of Appeals. We believe that federal law bars injunctions in labor disputes. We are confident that the Eighth Circuit will agree. But we also believe that this dispute will inevitably end with a collective bargaining agreement, which would be in the best interests of players, clubs and fans. We can reach a fair agreement only if we continue negotiations toward that goal.
Judge Nelson had the ability to stay her own ruling to allow the lockout to the appeal process to move forward with the lockout in tact.
Tim Sexton is the founder partner of the Sexton Company a Los Angeles-based business that has benefited from close working relationships with leading figures in business, finance, entertainment, government, and non-profits. Tim has served as an executive and/or producer to film studios, television networks, recorded music companies, and large-scale live events. He has also acted as an advisor and/or consultant to technology concerns, Nobel Laureates, government officials, investor groups, pro sports franchises, Fortune 500 corporations, and non-profits. Additionally, he served as Executive Producer of Live 8 - the largest music event in history that aggregated a global broadcast audience of 3Bn and as a Producer of television’s defining charity event, American Idol Gives Back, which raised $80Mn in a single night and received a special Emmy Governor’s Award. I reached out to Tim for his company’s recent work on the greenovations at Lincoln Financial Field. In the spirit of Earth Day, Tim answered some questions for the Business of Sports Network.
Tell me about the Sexton Company…
The Sexton Company (www.sextonco.com) offers strategy, content, and action programs to brands interested in doing well by doing good®. The Sexton Company helps reposition and expand brands into a better version of themselves. That could be developing programs that address pressing societal needs, internal morale issues, taking a company green, or external interfaces like conceptualizing and launching Idol Gives Back.
The Sexton Company operates much like an executive producer often subcontracting out in areas like broadcast television production, digital, brand identity, grassroots, philanthropy and so forth. The Sexton Company has achieved worldwide recognition and award winning results for its clients (past and present) including Philadelphia Eagles, National Grid, PG&E, UCLA, NY Jets, NRDC, North Shore LIJ Health System, Tenet Healthcare, stop global warming.org, Durst Organization, Earth Day, PA Dept of Natural Resources, Ogilvy, Universal Music, Intermedia, Disney and others.
Sexton executive produced Live 8 – the largest music entertainment event in history attracting a broadcast audience of 3 billion, plus 2 million spectators in 9 concerts on 4 continents in a single day! It was also the biggest Internet event in history aggregating millions more online garnering a special Webby Award as one of the top 10 events that shaped the Internet by giving rise to streaming media. Also, Live 8 was the biggest mobile event ever generating 26 million text messages. Sexton was awarded an Emmy for this effort. Most importantly, Live 8 compelled the leaders of the G8 nations to change policy on debt relief for the world’s poorest countries and provided universal healthcare for all HIV-AIDS affected children in the developing world.
Sexton also was a producer of American Idol Gives Back, which is the most successful charity event in the history of television. Idol Gives Back was awarded an Emmy. The program raised $80 million (USD) in a single night to alleviate the effects of extreme poverty in Africa and America.
The company’s senior partners have held senior leadership positions in motion pictures, television, music, marketing, government, and technology. Past or present, they have advised California’s Attorney General and Governor, Nobel laureates, professional sports owners, motion picture studios, and rock stars. In the realm of not-for-profit endeavors; Sexton partners have founded and/or held Board of Director positions in “Feel the Power” and “Rock The Vote”, Environmental Entrepreneurs (E2), Environmental Media Assn (EMA), NY MTA Blue Ribbon Commission on Sustainability, NY Municipal Arts Society, Medical Aid to El Salvador, Liberty Hill Foundation.
Describe Sexton Company’s role in the green-ovations of Lincoln Financial Field.
TSC authored the Eagles sustainability program and helped the Eagles staff implement sustainable programs and practices across every department in the Eagles organization. This includes the development of environmental and financial metrics, internal education and external outreach, brand messaging (including all the creative materials), “green” procurement policy, waste and energy management plans, composting, biofuel program, renewable energy sourcing, reforestation initiatives, public-private and NGO environmental partnerships, and so on.
How did the Eagles-Sexton Company partnership come about?
In advance of the opening of LFF, the Eagles ownership retained TSC to develop and implement a strategic plan to help differentiate the Eagles off-the-field brand in an effort to enhance brand equity, build a stronger community leadership position, and grow value in their enterprise.
What challenges do you for see for others teams to follow the Eagles lead?
The Eagles owners, Jeffrey and Christina Lurie, are committed visionaries. Not only have they have significantly enhanced the financial value of the Eagles franchise over the term of their ownership, they have managed to build a business and social responsibility model to be emulated. Their humanity, high performance standards, attention to every detail of their business, and genuine commitment to their fans and community combine to form a picture of excellence and success that is unusual in any business sector. In sports, they have created the gold-standard in sports and entertainment both on and off the field.
What small steps can other teams & leagues take to reduce the environmental impact?
There are no small steps when it comes to protecting our planet. Every action - be it recycling, reducing natural resource consumption, or reusing items before disposal – makes a difference and sets an example for others that doing the right thing is rewarding in and of itself, rewarding to others, and rewarding to one’s business.
David Simmons is a graduate of the University of Central Florida who worked in the front office of the Los Angeles Dodgers over 4 seasons and has a decade of ticketing experience.. He serves as CFO for Players For The Planet and currently resides in Baltimore. You can follow David on Twitter @davidesimmons
A law firm that was seeking to represent players during labor negotiations in the NFL but had to seek a waiver from the NFL to do so has been denied by the league. NFL spokesman Greg Aiello said Thursday the league notified the firm of the denial. The AP reports that the firm is Barnes & Thornburg of Indianapolis.
The request for a waiver was due to a conflict of interest as one of Barnes & Thornburg’s partners represents the league in music licensing for shows on NFL Network and NFL Films.
The AP reports that a second firm, Philadelphia-based firm Cafferty Faucher, has approached players and it had "discussions about representing some additional players who want to have a voice," according Bryan Clobes, an attorney for the firm.
The story that a group of up to 70 players were looking to “splinter” from representation from the now dissolved NFLPA due to dissatisfaction with talks breaking down on March 11 created considerable buzz when Daniel Kaplan of the SportsBusiness Journal first reported the story late Weds. Clobes told The Associated Press that the number is "nowhere near 70" and the discussions didn't indicate dissatisfaction with the representation for the 10 players listed as plaintiffs on the Tom Brady lawsuit filed March 11.