Breaking--Judge in Lockout case: Defendants’ motion for a stay pending apeal: DENIED

[Kai]

Judge denies league request for stay of lockout lift


MINNEAPOLIS -- The federal judge who lifted the NFL lockout has denied the league's request to put her ruling on hold.

U.S. District Judge Susan Richard Nelson wrote late Wednesday that the NFL "has not met its burden for a stay pending appeal, expedited or otherwise."

The league wanted Nelson to keep the lockout in place while it appeals her ruling, arguing that starting free agency and other football activities before there's clarity on the status of this case could be damaging to the league's compe ive balance and general operations.

Players wrote to the judge earlier Wednesday to argue against the league's request for a stay, contending that a continuation of the lockout harms the NFL as much as it does the players.

Copyright 2011 by The Associated Press

http://www.nfl.com/news/story/09000d...=breaking_news

As discussed above, the Supreme Court’s clearly reiterated ruling that a stay applicant must make “‘a strong showing that he is likely to succeed on the merits,’” casts a substantial doubt on the applicability of the more lenient standard that the NFL advocates, namely, that this case raises several "substantial and novel legal questions” regarding jurisdiction and “the contours of the nonstatutory labor exemption,” and that it is “not wholly without doubt” that the Eighth Circuit will disagree with this Court’s Order. The NFL has not met its burden of proof.

The NFL’s failure in this regard is premised in large part on its mis-understanding or mis-characterization of what this Court decided. Or perhaps more accurately, what this Court did not decide. This is evident in the NFL’s framing of the purported issues on appeal, particularly its claim that this Court misapplied the Supreme Court’s decision in Brown v. Pro-Football, Inc., 518 U.S. 231 (1996). But the Eighth Circuit will not be addressing whether this court erred in finding that the lockout was sufficiently distant in time and in cir stances from the collective bargaining process, or in making that finding without any input from the NLRB, as was held in Brown, 518 U.S. at 250 (ruling that the nonstatutory labor exemption prevents actions of the NFL from being subjected to an rust scrutiny unless such actions are “sufficiently distant in time and in cir stances” from the collective bargaining process, a test that should not be deemed satisfied without the “detailed views” of the NLRB).

The Eighth Circuit will not be addressing that issue because this Court did not decide that issue. As this Court explained at length, in Brown the Supreme Court addressed the issue of a negotiating impasse, the situation where a union and the employer reach a pause, that usually proves temporary, during the collective bargaining negotiations. This Court carefully explained that no such question was at issue here because the NFLPA disclaimed its status as the Players’ negotiating agent just prior to the expiration of the CBA and ceased all union functions on behalf of the Players. This Court thus decided the issue that was in fact before it – whether the NFLPA’s disclaimer was valid and effective, an issue that was neither novel nor difficult in light of the NLRB’s clear and consistent standard governing such disclaimers, and to which the NLRB has adhered for decades.

The NFL also contends that this Court decided “substantial and novel legal questions” related to “the outer boundaries of the nonstatutory labor exemption to the an rust laws.” This Court does not disagree that the exemption issue is “substantial,” but this Court did not reach the question of whether the exemption protects mandatory terms of collective bargaining outside of the collective bargaining framework. Rather, the Court found that the lockout (1) is not a mandatory term, and therefore not subject to the exemption; and (2) has no role outside of collective bargaining.

The NFL has, in this Court’s considered judgment, little chance of success on the merits on this appeal on that issue because this Court did not decide that issue – namely, whether the nonstatutory labor exemption continues to insulate the League, under the factual cir stances in effect since March 11, 2011, with respect to negotiations or agreements regarding the mandatory terms of collective bargaining, that is, the substantive terms and conditions of employment.

Although the Brady Plaintiffs could have sought more expansive preliminary injunctive relief beyond Count I, they did not. This Court limited its ruling to the issue before it – whether the Brady Plaintiff’s were en led to preliminary relief enjoining the lockout. Thus, the NFL’s suggestion that the Eighth Circuit apply a de novo standard of review to the issue of “the applicability of the nonstatutory labor exemption”, is not so much wrong as it is presently irrelevant. There is little point in debating the appropriate standard of review of a “ruling” that did not occur, does not exist, and, therefore, will not be reviewed on appeal.

http://www.scribd.com/doc/54100387/B...FL-Stay-Denied

Nelson laying the smackdown on the NFL.

[Kai]

The NFL has told its teams and players to get back to football, at least for now.

In a memo released Thursday, just hours before the draft, the NFL said players could resume voluntary workouts at team facilities, meet with coaches and go over playbooks beginning at 8 a.m. ET on Friday. It also promised to distribute detailed procedures for signing free agents or making trades and other roster moves.

That memo, the league says, will spell out the timing for the start of the league year. Based on the league's statement, players will not be allowed to be traded during the first round.

The NFL still hopes the 8th U.S. Circuit Court of Appeals in St. Louis restores the lockout. The court says players must respond to the league's request for a stay by 1 p.m. ET Friday. Then the league has until 10 a.m. ET Monday to respond to that filing.

The NFL's request for a temporary stay is still pending before the court.

Clerk Michael E. Gans told ESPN's Sal Paolantonio that a ruling on the NFL's request for a temporary stay of the lower court's ruling could come as early as Thursday afternoon.

"They could rule on the temporary stay at any time between now and Monday," Gans said.

A three-judge panel, which was formed Thursday, will consider the evidence already filed with the appeals court -- a temporary stay request from the league and a reply letter from a lawyer representing NFL players -- and issue a ruling from the bench.

If the temporary stay is granted, the lockout will be back in place.

For now, there are some guidelines for NFL teams to follow.

"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," the NFL said.

The memo was released even as the court fight over how to run the $9 billion business escalated, and attorneys told players that a judge's decision lifting the lockout "is in full, immediate force."

Player attorneys Jeffrey Kessler and James Quinn wrote that the league year "now has to begin," that players must be allowed to lift weights at team facilities, meet with coaches "and otherwise perform their jobs."

"It is our view that the NFL and the clubs will be in contempt of court if they do not comply with the order," the memo said.

On Thursday morning, NFL players asked the 8th Circuit to ignore the league's request to temporarily put the lockout back in place. A letter sent to the appeals court by players' attorneys said there was no risk of harm to the league and promised a full rebuttal by midday Friday. Until then, the players asked the appeals court to keep things status quo.

The NFLPA said in its memo that U.S. District Judge Susan Richard Nelson's ruling Wednesday night, which denied the league's request to stay her decision to lift the lockout, leaves little to interpretation.

"We believe the 2011 League Year now has to begin; the Clubs must open their facilities to allow players to work out, meet with coaches and otherwise perform their jobs; and the NFL and the Clubs cannot collectively continue to refuse to deal with players," Kessler and Quinn wrote.

In their motion for a stay of Nelson's order filed Wednesday night with the 8th Circuit, the league said her decision "blinks reality" and is "deeply flawed."

The NFL complained that the order has forced teams to "produce their collective product" and expose themselves to an rust claims by the players -- claims that if held true can result in treble, or triple, damages. An an rust lawsuit filed by Tom Brady, Drew Brees and other players is still pending before Nelson, but has not been heard.

The NFL argued that a stay is necessary to avoid irreparable harm to league operations, even quoting an unidentified NFLPA executive: "If the lockout is lifted and a stay isn't granted, it could be utter chaos."

Without a stay, the NFL said, it would be impossible to "unscramble the egg in terms of player transactions that would occur in the interim" before a ruling from the appeals court.

In the 23-page motion, the league reiterated three main arguments it unsuccessfully made to Nelson: that she had no jurisdiction while a bad-faith negotiation charge against the players is pending with the National Labor Relations Board; that federal law prevents the court from overseeing cases stemming from labor disputes; and that it shouldn't be subject to an rust claims with the collective bargaining deal barely expired.

The league said Nelson "brushed aside all three legal obstacles with the simple rationale that the NFLPA's unilateral disclaimer changes everything and renders the labor laws irrelevant."

The NFL, citing comments by players Mike Vrabel and Derrick Mason, argued again that the union's breakup was only temporary and tactical and not permanent.

League rules have effectively been shelved since the collective bargaining agreement ended March 11 and the NFL's first work stoppage since 1987 began.

Information from ESPN's Sal Paolantonio and The Associated Press was used in this report.

http://sports.espn.go.com/nfl/news/story?id=6442393

Here is the message from the NFL:

NFL STATEMENT ON POST-INJUNCTION OPERATIONS


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.

http://www.whosay.com/ChrisMortensen...38?code=sRmhNP

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