Appeals court backs NFL, lockout remains in place

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MINNEAPOLIS -- The NFL's lockout remains in place, a federal appeals court ruled Monday. That means the league likely won't get back to business until at least next month - and maybe much longer than that.

The 8th U.S. Circuit Court of Appeals said the lockout can stay until a full appeal is heard on whether it is legal. That hearing is scheduled for June 3 in St. Louis, before the same panel that issued this 2-1 decision.

The appellate court said it believes the NFL has proven it "likely will suffer some degree of irreparable harm without a stay." The court also cast doubt on the conclusions of U.S. District Judge Susan Richard Nelson, who ruled April 25 that the lockout should be lifted to save the players from irreversible damage. The 8th Circuit panel put her decision on hold four days later.

"The league has made a strong showing that it is likely to succeed on the merits," the appellate court majority wrote.

The decision came as NFL owners and players finished their latest round of court-ordered mediation behind closed doors, a session that lasted more than eight hours. This was the fifth day of talks in front of U.S. Magistrate Judge Arthur Boylan, the first since April 20.

Neither side would elaborate on the discussions, citing the judge's confidentiality order, but they said they planned to resume talks on Tuesday morning. Michael Hausfeld, an attorney for the retired players who joined the antitrust lawsuit against the league, said the players were reviewing a new proposal from the owners.

"It probably is not one that would be acceptable as is, but it clearly opens a dialogue," Hausfeld said.

Beyond that, both sides stuck to their message.

The owners want to stay out of court, blaming the players for preferring litigation. The players claim they're only interested in playing and that the owners are preventing them and fans from enjoying the game.

"We have an opportunity to resolve this matter and get the game back on the field, and that really should be our exclusive focus," NFL lead negotiator Jeff Pash said.

DeMaurice Smith, the head of the NFL Players Association, said the players have prepared for a lockout for two years, suggesting they're not ready to relent in light of Monday's unfavorable ruling.

"Right now our guys are out there working out for free, because they dig the game," Smith said.

Commissioner Roger Goodell, speaking to Buffalo Bills season ticket holders on a conference call, said he thinks there's "still time" to strike a new collective bargaining agreement.

"But time is running short. It's time to get back to the table and get those issues resolved," Goodell said.

NFLPA president Kevin Mawae told The Associated Press he was disappointed with the 8th Circuit's decision.

"The ruling in granting the stay of the injunction means that the NFL owners can continue to not let football be played," he said.

The appellate court said it would make its decision quickly, a "circumstance that should minimize harm to the players during the offseason and allow the case to be resolved well before the scheduled beginning of the 2011 season."

Indeed, with training camps just two months away and the first preseason game set for Aug. 8, there is restlessness around the league to go with all the uncertainty.

"We'd like to make progress, but it'll be hard to do. We have to wait to see what happens June 3," Pittsburgh Steelers president Art Rooney II said earlier on his way into the federal courthouse for Monday's mediation.

The 8th Circuit's decision to keep the lockout in place could be a signal of how the two sides will fare in the full appeal. The majority opinion, from Judges Steven Colloton and Duane Benton, sided with the NFL. Judge Kermit Bye dissented in favor of the players.

"The district court reasoned that this case does not involve or grow out of a labor dispute because the players no longer are represented by a union," the majority wrote. "We have considerable doubt about this interpretation."

The 8th Circuit has been seen as a more conservative, business-friendly venue for the NFL than the federal courts in Minnesota. Colloton and Benton were both appointed by Republican President George W. Bush; Bye was appointed by President Clinton, a Democrat.

Bye dismissed the conclusions of his fellow judges, just as he did on April 29 in dissenting against a temporary stay. He didn't buy the NFL's argument that it would be unable to "unscramble the egg" - a reference to the chaos of handling player transactions with no CBA in place.

"The preliminary injunction does not dictate the NFL's free agency rules, or any other conduct in general, outside of the lockout," Bye said.

The majority, however, said both sides will suffer "some degree of irreparable harm no matter how this court resolves the motion for a stay pending appeal," and then criticized Nelson sharply.

"We do not agree, however, with the district court's apparent view that the balance of the equities tilts heavily in favor of the players," the majority wrote. "The district court gave little or no weight to the harm caused to the league by an injunction issued in the midst of an ongoing dispute over terms and conditions of employment."

Still in the courts is a separate but related matter. U.S. District Judge David Doty is determining the fate of some $4 billion in broadcast revenue he previously ruled was unfairly secured by the NFL in the last round of contract extensions with the networks to use as leverage in the form of lockout insurance. The players have asked Doty to put that money in escrow and for more than $707 million in damages, too.

The two sides also met for 16 days earlier this year before talks fell apart March 11 and the lockout began. Boylan presided over four days of mediation last month with no signs of progress.

Goodell, Pash and four team owners - Rooney, Mike Brown of the Cincinnati Bengals, John Mara of the New York Giants and Jerry Richardson of the Carolina Panthers - were on hand with their legal team for Monday's session with Boylan.

Smith and three other lawyers for the players were present for their side. Linebacker Ben Leber, one of the players listed as a plaintiff in the still-pending federal antitrust lawsuit against the league, also attended. Hall of Famer Carl Eller and attorneys were there representing the retired players.

Eller helped organize a meeting of 10 fellow retirees over the weekend and another one is scheduled for next week in Chicago with former Bears coach Mike Ditka, sessions portrayed as an effort to unify their push for better benefits, at the NFL's request.

"That's kind of the first hurdle. Something that they want from us and something that we need to do," Eller said.


Appeals court backs NFL, lockout remains in place - Sacramento Sports - Kings, 49ers, Raiders, High School Sports | Sacramento Bee

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Court decision threatens start of NFL season

Delay of game might turn into delay of season for the NFL.

Not only does the most recent court decision upholding the validity of the owners' lockout of the players mean a likely game of wait-and-see for the next several weeks — more than ever, it puts the opening of training camps in jeopardy. And, beyond that, preseason games.

And, beyond that, perish the thought, even the games that count.

Make no mistake, the 2-1 decision Monday by an 8th Circuit Court appeals panel to maintain the lockout until the league's full appeal is heard beginning June 3 is a huge victory for the owners. The wording in that ruling by the majority strongly favored the NFL's argument; the judges indicated they find a great deal of merit in the NFL's claim that lifting the lockout without a new contract with the players would cause chaos and be harmful to the sport.

"I think this decision says the NFL really controls the game board here," said Robert Boland, professor of sports management at New York University's Tisch Center. "It is a big turn of fortune because the NFL controls the timing, they can control the clock. This allows the owners to put greater pressure on the players. If the injunction had gone into effect, it would have put the players in control of the game of leverage."

Instead, the players are in "uncharted territory," Boland said.

"The players don't have a lot of options now," he added. "Certainly there is enough litigation remaining and they could win. They could have a game changer from their case in front of the NLRB, but there's no indication when a decision might come there.

So their best bet is keep negotiating."

Others will argue that the latest victory for the owners is not a fumble recovery deep in the players' territory. The players still believe they can prove in court that the lockout is illegal. But after several wins for them — and with another expected soon from Judge David Doty on what to do with TV money promised to the league even if no games are played — Monday was a hard hit for the NFLPA.

"The law is on the players' side if they can survive," said agent/attorney Ralph Cindrich, who has been through every labor dispute between players and owners dating back to the 1970s and the NFLPA's infancy. "This is not a game changer for the owners, but it is a serious gain. The TV revenue (decision) in Judge Doty's courtroom is critical now."

If Doty awards the players the $707 million in damages they are seeking, as well as making the rest of the estimated $4 billion from the networks unavailable to the NFL, it would be a setback for the owners. But they could argue that because the NFLPA decertified as a union when CBA talks collapsed in March, it is not entitled to those damages.

Hardly anyone puts much stock in the court-ordered mediation sessions that have been adjourned until next month's appeal is heard. As long as the players are locked out and the NFL appears in control in the courts, serious negotiations are a long shot.

"Essentially the NFL does want and need to play, but there's really no incentive from a financial and technical perspective to rush that," Boland said. "They can allow the players to come back to them."

That could be in the form of a group of dissident players dissatisfied with the lack of progress. Or perhaps even with another group certifying itself as the players' union — with enough players' approval — to negotiate a new CBA.

Plus, as Boland notes, the sides aren't exactly getting more comfortable with each other when it comes to negotiating.

"Both sides I don't think were resolute in their opposition to each other at the outset," Boland said, "but I think they have come to be much further apart. Basically each side is waiting for the other to crack."

"Yes, the season could be very much affected by this," he added. "Games could be lost."

Which hurts the sport more than anything. Even if a deal is struck late this summer, the quality of performance without the proper prep time will be damaged. Injuries could be more prevalent if eventually there's a rush to get back to work.

As Cindrich noted, there's already "irreparable harm" to the rookie free agents "whose talent will never be realized because they will never have that fair shot" of making the NFL.

"For some (veterans), it is likely their last shot," Cindrich added. "Tell me how you put a dollar sign on that. You can't."


Court decision threatens start of NFL season