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Eighth Circuit rules that lockout may continue


Five weeks ago, the U.S. Court of Appeals for the Eighth Circuit heard oral arguments on whether Judge Susan Nelson’s decision to end the lockout should be upheld or overturned. At the end of the hearing, Judge Kermit Bye urged the parties to work out a resolution, hinting that neither side would like the ruling.

Throughout the past five weeks, it appeared that the Eighth Circuit was holding the ruling unless and until the negotiations fizzled out. Given that the Eighth Circuit had agreed to expedite all aspects of the appeal, the ongoing delay seemed to confirm that suspicion.

But the clock finally has run out. The Eighth Circuit has posted at its website a 34-page decision that strikes down Judge Nelson’s decision and allows the lockout to continue.

Specifically, the Eighth Circuit ruled that the Norris-LaGuardia Act prevents courts from issuing orders that end strikes or lockouts. Judge Bye, to no surprise, disagreed with the ruling.

While it appears to be a big win for the NFL, it wasn’t unexpected. And it’s far from the complete win the NFL wanted at this stage. As to the critically important question of whether the nonstatutory labor exemption survives the decertification of the NFLPA, the Eighth Circuit made no ruling -- which means that even though the lockout can continue, a chance remains that the lockout later will be found to be illegal, exposing the NFL to a potential verdict of $12 billion or more if the 2011 season is lost.

We feared all along that the Eighth Circuit would issue a ruling that dramatically changes the dynamics of the situation as the parties were close to resolving the situation. And there’s a chance that the parties will need to tap the brakes and evaluate the ruling before continuing to talk.

In the end, they should agree that the ruling changes nothing. As expected, the lockout may continue. As expected, the players have the ability to pursue a gargantuan verdict if the lockout wipes out regular-season games.