There's been little to no news coming out from the two sides in this case for the last week or so. The first step towards a resolution is going to happen today in Indianapolis, where Judge Susan Nelson will be hearing from both sides. At stake is whether or not the owners can continue to lockout the players. Judge Nelson will hear from both sides and then, in a week or so, she'll issue her ruling.
Keep in mind that this hearing will not determine any of the other issues contained in the lawsuit. This hearing is merely to determine if the league is within it's rights to lock the players out. If she rules in favor of the league, expect an appeal. If she rules in favor of the players, expect the owners to ask for a stay (which will keep the lockout in place), until their appeal can be heard by the higher court.
So what determines if an injunction will be granted? The players have to be able to prove that they're going to suffer irreparable harm if the lockout continues. Since they don't start receiving game checks until the season starts that might be hard to prove. However, the players will argue that they're suffering irreparable harm by not being given access to team facilities, playbooks, and working out for their coaches.
Who will win? That depends on whom you ask. Join me after the jump for opinions from people who know much more than I do about anit-trust law.
Jeremi Duru, sports law professor at Temple University:
The players are claiming that if there is no injunction they'll suffer irreparable harm, and it takes a lot to show that you'll suffer irreparable harm. Courts don't run around granting injunctions willy-nilly.'
Gabe Feldmen, director of Sports Law at Tulane University:
Generally speaking, injunctions are a very difficult remedy for plaintiffs to get. It's extraordinary
Matthew Cantor is a law partner at Constantine Cantor. The law firm won one of the largest anti-trust cases in U.S. history when they sued CareCore National on behalf of a group of radiologists. He thinks that the judge will deny the injunction.
I expect the judge to write an opinion that is very careful in its wording and draws upon black and white legal doctrine, and it's because of that that I think ultimately the judge is going to deny the injunction."
Why? Well, Cantor reasons that the players' claims that irreparable harm is being done in the interim won't hold up. The court must find that the plaintiffs - the former union - cannot sustain the financial damages that are being caused by the lockout unless the injunction is granted, and that the NFL's practices to this point have been illegal.
"That's a pretty extraordinary thing to ask for in a report, right?" Cantor said. "And the court has to find that, 'You know what? You're right. If I don't grant you this release, you're really going to be harmed and later on, there's no way you're ever going to be able to get any relief to compensate you for the harm you have (suffered) right now.'
"That's not this case. These players all have stipulated contracts for set monetary amounts. And they are seeking treble damages (in the TV suit). So if Tom Brady is right at the end of the day, that what the NFL is trying to impose on the players represents an antitrust violation, he's going to get (his salary) times how ever many years (are in his contract) times three."
However, Lester Munson disagrees. Munson is a Chicago lawyer who reports on legal issues for ESPN.com. He thinks that the court will grant the injunction.
Q: Will Judge Nelson issue the injunction and end the lockout?
A: Yes. There are two reasons to expect her to issue the injunction even though it is the most drastic remedy that is offered in American jurisprudence. Injunctions are granted only in compelling circumstances, and they are extremely rare in antitrust cases. But, even in a court system that is reluctant to issue injunctions, the players have a powerful and persuasive argument. There is little doubt that the NFL is using its monopoly power to extract concessions from the players. There is little doubt that the decertification is real and will be upheld. And there is little doubt that the loss of an entire season is a serious and irreparable harm to the NFL's 1,700 players.
The specter of a lost season will be a factor in Judge Nelson's decisions, and she will know that the injunction will level the negotiating field and lead to a new agreement between the players and the owners.
Second, although Judge Nelson may be in her rookie year as a federal district judge, she understands the players' situation. As a lawyer, she represented plaintiffs in class actions. The players are plaintiffs in a class action. And, as a lawyer, she stood up to powerful corporate interests, including the tobacco industry. In a battle between players and the powerful corporate interests of the NFL, she is likely to take the side of the players.
Munson seems to be of the opinion that the judge will consider the long term impact of the lockout, while the other lawyers weighing in seem to be of the opinion that an injunction will only be granted if the players cam prove immediate irreparable harm.
There's no denying that whoever wins in this injunction will have enormous leverage in the labor dispute.