FOOCH'S UPDATE: Judge Susan Nelson has denied the NFL's motion for a stay of the injunction pending their appeal. I'm still trying to sort this out but I believe the NFL will now ask the 8th Circuit Court of Appeals for an emergency stay. It is my understanding that it could take upwards of a week for the Appellate Court to decide on this emergency stay. In the meantime, I have no idea what this means for the start of a league year, and particularly player trades and free agency in advance of tomorrow's NFL Draft.
There's been a flurry of legal requests since Judge Nelson's ruling on the injunction. The NFL immediately filed papers asking for a stay. The players responded to that request and filed further papers requesting the judge open up the league year immediately. They also requested a $1 billion dollar bond be posted by the NFL in case the stay is granted. I'll try to make some sort of heads and tails out of the various filings.
The first filing was the league's request for a stay on the injunction. A stay simply requests that the judge not force the NFL to open up to business right away, pending the results of the appeal.
NFL's Argument for requesting a stay:
1. Starting league year right away would lead to unfettered free agency.
2. The league is not ready to begin the league year right away.
3. Proceeding without a clear set of rules agreed to by both sides would open the NFL to further anti-trust exemptions.
4. Greater harm would come from opening the league for business and then possibly shutting it down later (on appeal from the Circuit Court) than would result in keeping the league closed to further business.
The player's response:
1. The NFL is not likely to win their case on appeal
2. The NFL has not shown that they will suffer irreparable harm if a stay is not granted.
3. A stay is not in the interests of the public.
4. Granting of the preliminary injunction did not involve 'substantial and novel legal questions
In their response the players asked for a legal ruling to have the NFL put up a bond of $1 billion as a guarantee should the league be granted a stay and then lose their appeal. The league's response to the request for $1 billion was that if the league loses it's appeal it could face triple damages through the courts, and that according to the players lawsuit the time they are missing right now "is not compensable".
The NFL is arguing that opening the league year now would lead to either an unbridled free agency, or risk further violation of anti-trust laws. In this they're correct, since the way that the league currently does business involves many infractions of anti-trust law. One of the biggest of those infractions will be taking place tomorrow evening at Radio City Music Hall. My concern is that if the league starts business tomorrow as the players are requesting, by holding the draft they'll be subject to huge amounts of liability via the court, which might lead to consideration of cancelling at the last moment.
That would be devastating.
The NFLPA's lead council siad There is no dilemma because the NFL Defendants have a viable third choice:
So what will happen?
I think that the judge will deny the stay. She spent enough time defending her position in her brief that there's not going to be much of a likelihood of it being overturned on appeal (though the NFL hired David Boies for his expertise in the appeals process). Since the case will most likely not be overturned at the District Court, and she's already said that the players are suffering irreparable harm, I can't see her granting a stay to the NFL.
The real question comes from the "clarification" that the players asked for regarding the league year. Judge Nelson could order the NFL to open for business and implement the 2010 rules. She could order the NFL to open for business without any anti-competitive practices at all (which might put tomorrow's draft in jeopardy). She could order the league to open for business and give a deadline by which the two sides need to figure out league rules.
I think that the best option would be to open the league for business under the 2010 rules, which would allow for the resumption of business pending a new deal between the two sides. No rules in place could lead to all sorts of sticky situations, and trying to get the two sides together to agree on new rules right before the draft is not a good idea.
What do you think?