Arguments Heard in Brady v. NFL on Lockout Injunction

Arguments Heard in Brady v. NFL on Lockout Injunction


After negotiations on a new collective bargaining agreement with the National Football League broke down in March, the National Football League Players Association (NFLPA) made an unusual decision — it voted to decertify itself as a union.

Though risky, this move allowed players to sidestep the Leagues antitrust exemption, thus allowing the union to sue the NFL on antitrust grounds in federal court and attempt to enjoin the league from locking the players out.

I worked in the legal department for the NFLPA during the late Gene Upshaw’s tenure as executive director. Gene was a strong and gutsy man, who would likely be pretty impressed with how the players have taken off their gloves.

The players won the first round in April, when U.S. District Judge Susan Richard Nelson ruled in their favor and ordered an end to the NLF lockout.  In May, however, the Court of Appeals for the Eighth Circuit in St. Louis stayed the lower court’s ruling, allowing the lockout to continue until a decision could be made on the NFL’s appeal.

Many read the 2-1 decision of the George W. Bush appointees to suggest the panel was leaning toward ultimately siding with the NFL.

A different impression resulted from the questions posed by the judicial panel to the attorneys who convened in the Thomas F. Eagleton Courthouse for oral arguments in the NFL’s appeal.  The League was represented by Paul Clement, the players by Theodore Olson.

Like the strategies used in many legal cases, what’s being argued isn’t really what the case is about.  Here, the NFL is relying on the Norris-LaGuardia Act (29 U.S.C.A. § 101 et seq.), one of the initial federal labor laws in favor of organized labor. Norris-LaGuardia provides that contracts that limit an employee’s right to join a labor union are unlawful. The law is sometimes referred to as the anti-injunction act because of its provisions restricting the ability of federal courts to issue injunctions to end labor disputes (which historically involved striking workers bargaining for better benefits).

The NFL is arguing that the NFLPA hasn’t truly disbanded and that the lockout is merely a part of the ongoing labor dispute, so the courts shouldn’t interfere.

Olson, representing the players, contended that the players had voted to legally decertify themselves as a union.  This leaves them with no union protections, so they then should be provided rights under antitrust laws.

Judges Steven Colloton and Duane Benton, both Republican appointees, have voted with the owners on the temporary and full stay decisions, and they did most of the talking; however, Judge Kermit Bye, a Clinton appointee, offered that the parties would do better to solve their dispute by settlement, suggesting that neither side would be likely be happy with the court’s decision.

The parties resumed negotiations last week.  Those talks will likely continue.