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On appeal, first fight will focus on “standard of review”

David Boies

Attorney David Boies speaks during a news conference in San Francisco, Monday, Jan. 11, 2010. Boies is representing same-sex couple Jeff Zarrillo and Paul Katami. The first federal trial to determine if the U.S. Constitution prohibits states from outlawing same-sex marriage gets under way in San Francisco on Monday, and the two same-sex couples on whose behalf the case was brought will be among the first witnesses. (AP Photo/Paul Sakuma)


When the ruling lifting the lockout lands on the desk of the judges of the U.S. Court of Appeals for the 8th Circuit, the first task will be to determine the deference, if any, that Judge Susan Nelson’s decision should receive.

It’s safe to say the two sides won’t agree. Generally speaking, the question of whether a motion for preliminary injunction will be granted or denied can be overturned on appeal if the judge’s ruling amounts to an “abuse of discretion.” In other words, it’s not enough to disagree with the judge. The appeals court must conclude that the judge went beyond the range of reasonable outcomes that the law and the facts would support.

As NFL lead counsel David Boies told PFT Live on Tuesday, the league believes that legal questions regarding the validity of the decertification of the union and the ability of the federal courts to prevent a lockout will be reviewed from scratch, essentially giving the league a fresh bite at the apple. The players will presumably argue that nothing should be reviewed from scratch, given that Judge Nelson has issued no ruling (yet) on the merits. Instead, Judge Nelson decided to block the lockout based on a finding that the players will suffer irreparable harm and on a conclusion that the players have a “fair chance” of winning on the merits of the case.

It’s a topic that sports lawyer David Cornwell and yours truly will discuss on today’s PFT Live. Eventually, it’s an issue for the appeals court to resolve -- and it could go a long way toward determining whether or not the lockout is lifted.