On Wednesday the NFL and the NFLPA appeared before Judge Susan Nelson to defend their respective positions on the lockout. As we all know by now, the NFLPA's position is that the judge should grant an injunction to stop the lockout due to the irreparable harm caused by the lockout to the players. The NFL's position is that the decertification by the NFLPA is a sham and that the NFLPA as a "trade association" is the exact same organization acting in the exact same way as the NFLPA as the union.
Judge Nelson said that it would take a "couple of weeks" to get a decision and then gave her opinion that mediation is the best solution for both sides.
"It seems to me both sides are at risk, and now is a good time to come back to the table," Nelson said.
Immediately following the hearings both sides sent a flurry of letters to each other stating their willingness to go back to the table, under certain circumstances. The NFL wants George Cohen to oversee the mediations, while the NFLPA wants Judge Nelson to oversee the negotiations, so basically the letters mean nothing at all.
The NFL's argument rested on jurisdiction. Their contention is that this is still a labor dispute between a union and the employer, and not a dispute between workers and management. As such, Judge Nelson has no authority to hear the case based on the fact that the dispute came out of a labor situation. Boies quoted the Norris-LaGuardia Act (which is the basis for this), which says "No court shall have the jurisdiction to issue a restraining or temporary or permanent junction, in any case involving or growing out of a labor dispute."
So the NFL's argument is that Judge Nelson can't rule on the issue until the National Labor Relations Board comes down with it's decision on the complaint the NFL brought against the NFLPA regarding the decertification. According to the reporters there most of the time was spent with Judge Nelson questioning Boise on this issue, with very little time being actually spent on the issue of "irreparable harm".
The best coverage of the actual courtroom battle has come from Greg A. Bedard (Boston.com NFL Reporter), and Jarrett Bell (USA Today's NFL writer). Here are some excerpts from both reporters:
The hearing had NFL lead counsel David Boies in the crosshairs for most of the day. He was at the lectern for a combined 2 hours and 22 minutes, and fielded approximately 64 questions or comments from Nelson.
Jim Quinn, lead counsel for the NFL Players Association, and Michael Hausfeld, who represented the retired players in the case that was joined with Brady, combined to speak for 1 hour, 37 minutes and took only 14 questions/comments.
One of the big blows Boies received from Nelson - "You can assure that the court has done nothing else in the last few weeks,'' she said - was about the Norris-LaGuardia Act of 1932, which the NFL insists precludes the court from stopping a lockout.
"Isn't there some bit of irony that the Norris-LaGuardia Act is designed to protect employees from strike-breaking federal judges, should now be used to prevent an injunction of a wealthy, multi-employer unit seeking to break players who are no longer in a union?'' Nelson asked.
It was one of the only times during the hearing that Boies, a legendary antitrust litigator, didn't have a swift response.
"No lawyer," Boies declared before U.S. District Judge Susan Richard Nelson, "wants to stand before a judge and say they have no jurisdiction."
Yet for a significant portion of a hearing that lasted nearly six hours, Boies argued just that as he lay out the league's defense
Perhaps Nelson allowed a clue, when she questioned the indefinite nature of the lockout.
"What it means is that you could lock them out forever more," she said. "They're always going to be talking to you about terms of employment. There doesn't seem to be any ending for when you could lock them out."
So what possible outcomes do we have here?
- Judge Nelson could agree with David Boies that she has no jurisdiction and refer the matter back to the NLRB. This would indefinitely drag out the process, since the NLRB is known as being glacially slow in responding to complaints.
- Nelson could side with the the NFL and rule that the lockout can continue. This would be the death knell for the players who would be forced back to the table with no leverage at all.
- Nelson could grant the players their injunction, at which point the NFL season would resume (probably under the 2010 rules)
- Judge Nelson could order the two sides to settlement talks before she makes her decision.