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Ten things to know about the Wednesday court hearing


Tomorrow, the first major skirmish in the antitrust lawsuit filed by the players against the NFL occurs in Minnesota. We’ve said plenty about it over the past 24 days, and we’ve decided to cobble together a 10-item summary of the most important things to know about one of the most important court dates in the history of the league.

1. What’s it all about?

The players, faced with the threat of a lockout, opted to shut down the union and sue the NFL for violation of the antitrust laws. The primary argument is that any effort by the league to behave collectively after the union disbanded violates the antitrust laws, because the league is made up of 32 separate businesses that can’t agree to act in concert.

The primary goal of the lawsuit is block the lockout. Toward that end, the players filed a motion for what the legal process calls a “preliminary injunction,” a fairly common device that seeks a fairly extraordinary remedy. The players basically want to obtain now one of the things they would get if they win -- an order preventing the league from preventing the players from working.

The arguments are simple. The players believe that the union properly shut down, requiring the 32 teams to deal with a non-union workforce, and subjecting the league to antitrust liability for collective actions or rules. The NFL believes that the union decertification was a sham aimed at acquiring leverage via the antitrust lawsuit and the attempt to end the lockout.

To get an injunction while the case continues, the players must persuade the court that they will suffer “irreparable harm” absent a lifting of the lockout. A legal term of art, “irreparable harm” refers to injuries that can’t be remedied by an award of money damages entered at the end of the case.

The league believes that, if the players win, they can be compensated financially for all lost wages and bonuses and other forms of compensation. The players believe that the disruption to already short NFL careers cannot be fixed with an award of cash later.

2. Why is it in Minnesota?

Federal court in the Twin Cities has long been the forum of choice for the NFL’s players in labor cases, due in part to the development of a stream of past precedents in that court that can be applied to all future cases. (Courts are guided by interpretations of the law made by other courts. When the other court is the same court that is handling the current case, the precedents apply with greater force.)

The players likewise surely hoped that the case would land on the docket of Judge David Doty, who handled the Reggie White antitrust case two decades ago and the settlement agreement that became a Collective Bargaining Agreement, which applied for 18 years before expiring last month.

3. Who will make the decision?

After getting the hot potato treatment from two other judges, who recused themselves due to conflicts of interest, the case was assigned to Judge Susan Nelson.

Previously a U.S. magistrate judge (which is sort of a “junior judge” in the federal system, handling many of the procedural disputes and related issues that the district judge would otherwise have to resolve), Judge Nelson was promoted in December 2010 via nomination from President Obama and confirmation by the Senate.

The fact that she was nominated by a Democratic President and confirmed by a Democratic Senate will cause many to assume that she’ll be inclined to apply a liberal/progressive ideology, which in theory would favor the players. Federal judges, however, have lifetime appointments. Once on the job, they are free to step away from any of the partisan maneuverings that helped them get the position in the first place. That said, plenty of federal judges remain true to the philosophical leanings that drew them in the first place to the party whose President provided the nomination.

4. When will a decision be made?

No one knows. Judges tend to take motions of this nature very seriously, given that one side is arguing that serious harm that can be fixed through a cash award will happen without immediate intervention.

It’s possible, but very unlikely, that Judge Nelson will issue a ruling from the bench at the end of the hearing. The more likely outcome is that the judge will take the issue “under advisement,” with a ruling emerging suddenly and without warning at some point in the not-too-distant future.

In our view, there’s no reason why a ruling can’t be issued within a week.

5. Will the decision be appealed?

Absolutely. But the decision issued by Judge Nelson will have plenty of influence over the final outcome, since the U.S. Court of Appeals for the Eighth Circuit reviews decisions of this nature under the “abuse of discretion” standard.

In other words, the appellate court won’t review the decision on a de novo basis (which is Latin for, essentially, “from scratch”). Instead, the Eighth Circuit must uphold the decision -- whatever it may be -- unless it is determined that Judge Nelson acted unreasonably.

It’s somewhat similar to the standard that applies when a referee reviews a call on the field via replay. The referee needs to refrain from substituting the judgment of the official who made the call with the judgment of the referee and instead search for an obvious mistake. When the Eighth Circuit considers Judge Nelson’s ruling, deference of that general nature must be applied.

6. Will the lockout end before or after the appeal?

It depends on whether Judge Nelson issues an order “staying” the injunction. If she does, the lockout will remain in place until the appeal ends. If she doesn’t, the doors to the 32 team facilities would swing open, allowing free agents to be signed and trades to be made. Then, if the appellate court decides that Judge Nelson was wrong, the doors would close again.

Most observers expect Judge Nelson to stay the injunction pending appeal.

7. Will the case end up in the United State Supreme Court?

If the Eighth Circuit determines that the lockout should be lifted, it’s unlikely that the injunction would be delayed pending further appeal to the U.S. Supreme Court. The Supreme Court agrees to consider only a small percentage of the cases presented to it, and the process could take months.

Thus, it’s far more likely that the injunction would take effect, and that it would be subject to an unlikely reversal by the Supreme Court, which would take the case only to resolve a clear difference of opinion among the federal circuits or to rectify a very clear and obvious error of law.

8. What happens if the players win?

The lockout would end, free agency would begin, trades would be made, offseason workouts would start, OTAs and minicamps would happen, training camp would begin on time, and the full season would be played.

Also, the Brady antitrust lawsuit would continue to proceed, with the next target likely being the rules put in place by the NFL after the lockout. Any limitations on free agency would, for example, be subject to the antitrust laws. The league calls it a “head I win, tails you lose” tactic by the union, but our take is and has been that the league isn’t required to violate the antitrust laws, and that any limitations on full and complete competition among the 32 teams would be subject to potential antitrust scrutiny.

Along the way, the players would be playing football and getting paid, giving them much more leverage in any eventual settlement talks that occur.

9. What happens if the owners win?

The lockout would continue. And it would end only if an agreement is reached by the parties on a new labor deal.

The owners would have considerable leverage, especially if once the players start missing game checks.

10. Can this be settled?

Yes, but first the parties have to talk to each other. Since March 11, they haven’t.

The league refuses to engage in discussions aimed at settling the lawsuit, and the NFLPA* won’t engage in collective bargaining, since the NFLPA* believes it no longer is a union. Though the positions simply may be cover to allow the parties to hunker down in the hopes of winning the motion to lift the lockout, Judge Nelson can order them to return to mediation, at any time.

The best approach would be to order mediation to resume immediately, and for Judge Nelson to explain that, if the situation isn’t resolved in, say, two weeks, she will issue a ruling. Both sides then should take advantage of the uncertainty to justify doing the best possible deal.

And that’s the best long-term outcome -- a negotiated labor deal that both sides view as acceptable.

That said, we’re not holding our breath. Or any other bodily function.