View Full Version : Injunction hearing set (4-6-11) Judge Susan Nelson presiding
03-14-2011, 03:11 PM
New judge assigned to players' antitrust lawsuit vs. league
NFL.com Wire Reports
Published: March 14, 2011 at 10:57 a.m.
Updated: March 14, 2011 at 02:59 p.m.
An April 6 hearing date has been set in the federal antitrust lawsuit filed by players against the NFL.
The players filed a request last week for an injunction that would keep the NFL and the teams from engaging in a lockout, which took effect at midnight Friday. The hearing is scheduled to be in front of U.S. District Judge Susan Richard Nelson in Minnesota.
The case first went to Judge Richard Kyle, who recused himself for unspecified reasons. It was reassigned to Judge Patrick Schiltz. On Monday, Schiltz cited a conflict of interest because he represented the NFL in several cases as a private practice attorney. The case then went to Nelson.
The case will not be reassigned, a players union source told NFL Network insider Jason La Canfora. The players wanted the case heard before Judge David Doty, who has overseen NFL labor matters since the early 1990s.
The case was filed in Doty's district for a reason but assigned randomly. Doty will still oversee the case of the network television revenue dispute between the players union and owners.
Earlier this month, Doty ruled that the NFL violated the collective bargaining agreement by making deals with television networks that involve continued payments during a lockout. Doty has ordered another hearing to determine whether the players will receive financial damages or an injunction preventing the league from collecting the money during a lockout.
Meanwhile, The National Labor Relations Board continues to investigate the NFL's claim that the NFLPA did not negotiate in good faith and "surface bargained" with intent of eventually decertifying, public affairs officer Nancy Cleeland told La Canfora.
The league is contending that the NLRB has the authority to force the union back to the bargaining table despite the NFLPA's decertification and call for an injunction.
The Associated Press contributed to this report.
03-14-2011, 03:34 PM
Interesting no Judge Doty. Wonder if this judge is a pro-union, anti-buisness judge like Doty?
Her background has left wing liberal written all over it
Professional careerNelson's first professional employment was an unpaid internship with the Pennsylvania Department of Environmental Protection and then as a summer associate with the law firm of Reed, Smith, Shaw & McClay in Pittsburgh from 1977 through 1980. From 1980 to 1983 she worked as an associate with the firm of Tyler, Cooper & Alcorn in New Haven, Connecticut. From 1984 to 2000 Nelson worked as an associate (promoted to partner in 1988) with the law firm of Robins, Kaplan, Miller & Ciresi L.L.P. in Minneapolis, Minnesota. As a partner with Robins, Kaplan, Miller & Ciresi her civil trial practice involved complex product liability and mass tort lawsuits in Minnesota and the United States, including the 1998 landmark tobacco trial. Nelson also worked in various positions with Minnesota Women Lawyers since 1996.
 Judicial serviceNelson was appointed as United States United States magistrate judge for the District of Minnesota, and took the oath of office on June 12, 2000. She filled a new position and became the sixth magistrate judge.
 Federal judgeship nominationNelson was recommended to President Barack Obama for a seat on the United States District Court for the District of Minnesota by U.S. Senator Amy Klobuchar on November 3, 2009. On April 21, 2010, Obama nominated Nelson to the court, for the seat vacated by James M. Rosenbaum. Judge Nelson was confirmed by the Senate with unanimous consent on December 17, 2010 at 11:00pm.
03-14-2011, 05:07 PM
April 6 hearing date gives NFL, players time to talk
Posted by Mike Florio on March 14, 2011
Earlier today, Judge Susan Nelson issued an order setting an April 6 hearing date in the players’ motion for preliminary injunction, which requests that the lockout be blocked while the lawsuit proceeds.
Here’s what it means, actually or potentially.
1. Judge Nelson won’t immediately be punting the case.
Unlike the two prior judges to whom the case had been assigned, Judge Nelson didn’t treat the litigation like a proverbial hot potato. By issuing an order setting a hearing date on the motion for preliminary injunction, Judge Nelson has implied that there is no apparent reason for her to recuse herself from handling the case.
It doesn’t foreclose the players from filing a motion to transfer the case from Judge Nelson to Judge David Doty. Though neither we nor NFL general counsel Jeff Pash are currently aware of any precedent that would allow a case to be transferred within the same district based on a given judge’s knowledge of the process, nothing stops the players from trying.
That said, the players don’t seem to be concerned about Judge Nelson’s handling of the case. “That’s not an issue,” Saints quarterback Drew Brees said during a Monday conference call arranged by the NFLPA*. “That’s something that the owners seem to be very focused on. For us it's about the facts and the law.”
The fact that Judge Nelson was nominated by President Obama and appointed by a Congress controlled by Democrats is another reason for the players to not be complaining.
2. It’s possible that the players wanted a later date.
When a case is filed along with a motion for preliminary injunction, the judge to whom the case is assigned promptly attempts to determine the length of the proverbial fuse. It happens when the judge, or more often one of the judge’s assistants, calls the plaintiffs’ lawyer and asks, “When do you want this to be heard?” And then the plaintiffs’ lawyer says, “Right away” or “In a few weeks” or whatever the plaintiffs’ lawyer says. The ultimate decision regarding the date of the hearing is based on the plaintiffs’ urgency, the availability of the lawyers, and the docket of the judge.
For a case of this magnitude, a judge would be more likely to move quickly, if the plaintiffs want to move quickly. It’s possible that the players (and this meshes with some things we’ve heard and senses elsewhere) wanted a three-to-four-week window before the ruling, so that negotiations could continue during the dead period between the end of mediation and the hearing on the motion for preliminary injunction.
The players possibly would want to buy time due to fears that the players would lose the motion for preliminary injunction, allowing the lockout to continue until the litigation ends successfully for the players. Such an outcome would give the league ample leverage going forward; the possibility that the lockout will be lifted as soon as April 6 gives the players leverage.
That leverage can be converted into a deal. After April 6, the leverage could get stronger — or it could evaporate.
3. Negotiations may continue.
Even though the NFLPA* has decertified and no longer has the ability to negotiate on behalf of the players, talks may continue within the confines of the antitrust case filed in Minnesota. And those talks would be handled by the lawyers who are handling the case.
Indeed, NFLPA* spokesman George Atallah said during the Monday conference call with the media that “any negotiations are up to the class counsel.”
The problem? Someone has to make the first move. And lawyers routinely obsess over the perception of weakness that comes from being the first one to place the call.
Here’s our advice. Judge Nelson should refer the case to mediation. Now.
Though it remains an inherently voluntary process, the parties would be more inclined to obey the mediator and behave reasonably if the mediator has teeth, if the mediator was picked by the judge presiding over the case. For mediation conducted within the confines of litigation, where the mediator has the ability to call the judge and express concern about the question of whether one side or the other misbehaved, the chances of broken vows of silence and perceptions of intransigence would diminish.
Likewise, Judge Doty could order mediation, given that he still has jurisdiction over the “lockout insurance” case and the collusion claim filed under the now-expired settlement agreement in the Reggie White antitrust litigation.
If either Judge Nelson or Judge Doty were to order mediation, a deal most likely would be done by April 6. If both were to do it simultaneously, the chances of a deal would be even greater.
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03-20-2011, 11:36 PM
Motion to lift lockout comes down to two factors
Posted by Mike Florio on March 20, 2011
We promised on Saturday to translate the legalese regarding the motion to lift the lockout in the Brady lawsuit into plain English.
It probably would be easier to translate the Dead Sea Scrolls into Pig Latin.
The players hope to force the NFL to end the lockout while the antitrust lawsuit against the league proceeds. All of the players’ arguments in the case arise from the fact that, because the union has decertified, 32 separate businesses can’t come together and agree to impose common rules. It’s sort of like McDonald’s, Wendy’s, Hardee’s, Arby’s, and Taco Bell all agreeing that no entry-level employees will receive more than the minimum wage. Separately businesses can’t engage in such practices.
Remember the American Needle case from 2010? The NFL was trying to persuade the U.S. Supreme Court that the league is a “single entity” in an antitrust case filed by an apparel company that objected to the league’s exclusive deal with Reebok. If the NFL had won that case, the same argument would have been used here. But the NFL lost, badly, and so the players have the ability to disband as a union and file an antitrust lawsuit.
The motion that will be presented to Judge Susan Nelson on Wednesday, April 6, focuses on only one thing — forcing the league to end the lockout while the lawsuit proceeds. It’s no different than the motion filed by Vikings defensive tackles Kevin and Pat Williams after the league tried to impose four-game suspensions in the StarCaps case. The court system prevented the NFL from imposing the suspensions while the case unfolded, even though the players have lost every step of the way. (Indeed, Kevin Williams has decided not to appeal the latest ruling permitting the suspensions to the Minnesota Supreme Court. So even though he lost the case, he was able to duck the suspension for more than two seasons.)
Like most courts, the Minnesota federal court handling the Brady case will consider four factors when deciding whether to issue an injunction lifting the lockout while the case proceeds. First, will the plaintiffs be irreparably harmed without the injunction? (“Irreparably” means damage that can’t fairly be compensated by a cash award later.) Second, can the plaintiffs show that they are likely to win the case on the issue of the lockout being illegal? Third, will the defendants suffer more harm with an injunction than the plaintiffs will suffer without one? Fourth, does the public interest favor an injunction?
There’s no rock-scissors-paper formula that applies when comparing the four factors, and no one factor drives the process.
In other words, the judge can decide what he or she thinks is fair, and then work backward to justify it.
In this case, the focal point of the battle will be the first two factors — irreparable harm and likelihood of success. The players know it; more than 12 pages of the players’ legal brief is devoted to the first two issues, while barely one page is spent on the last two.
As to the issue of irreparable harm, the players focus broadly on the potential damage arising from a lost year of their careers. This argument overlooks the realities of the sport. In March, April, May, and June, the players aren’t having their careers impacted in a way that only an injunction can fix. They’re losing the ability to work out in team facilities, and they’re risking injuries that could result in a decision by their teams to place them on the non-football injury list and not pay them if/when football resumes in 2011. These injuries arguably can be addressed with a verdict compensating the players for the costs of working out on their own, the per diem payments they would have received while working out with the team, and the expenses relating to any disability insurance premiums aimed at protecting them against injury. To the extent that impending free agents argue that they will experience a much softer market for their services if the lockout ends in August or September, that injury can be addressed via an award of money damages, with the players receiving for 2011 what they would have gotten if they had hit the open market in March.
Some league insiders think that the judge will be inclined to rule that the lockout may continue until the opening of training camps, and that the doors will open as of July 31, at which time the damage begins to become irreparable. We think that Judge Nelson could be inclined to simply deny the motion without prejudice, inviting the players to re-file the motion at a date closer to the start of the season.
Of course, any possibility of an injunction presumes that Judge Nelson believes the players have sufficiently proven that they are likely to win the case on the lockout issue. In the StarCaps case, the judge expressed concern about the players’ ultimate ability to win the case, but the court was sufficiently compelled by the irreparable harm arising from the loss to Kevin and Pat Williams of 25 percent of a football season. Here, the players have a strong likelihood of proving that the lockout violates the antitrust laws — if the players can also show a strong likelihood that the “sham” defense to decertification won’t apply. The league intends to argue that the players shut down the union too soon, and that the players should have waited until after the agreement expired to do so.
In the brief in support of the motion to lift the lockout, the players focus solely on the fact that the NFL agreed to waive the “sham” defense as part of the settlement of the White antritust case. The brief doesn’t address the timing of the decertification.
Look for the league’s brief, due on Monday, to hammer that issue. The league’s brief also will surely attach documentation of quotes from members of the NFLPA* that tend to support the argument that the union is still calling the shots, such as the recent remarks from Executive Committee members like Mike Vrabel and Domonique Foxworth.
The players then will have a chance to respond in their March 28 reply brief, and Judge Larson surely will have plenty of questions for both sides at the April 6 hearing.
In the end, the “sham” issue may not matter. If the judge believes the harm will be sufficiently significant once the regular season approaches, the potential cloud over the players’ ability to show that they’re likely to win on the merits may not matter. With the antitrust violation being fairly clear and the shelf-life of an NFL player’s career fairly short, Judge Nelson easily could find that, once training camps are due to open, the harm will become irreparable and the lockout will be lifted.
Then again, Judge Nelson also could find that anything lost by the players during a lockout can be given back to them in the form of money, if they win the case. At a time when the players are complaining so loudly about playing more games, the prospect of eventually getting paid to play no games in 2011 could be reasonable, and for some players attractive.
In the end, no one knows how this will come out. The ruling won’t resolve the case, but it will give the side that prevails plenty of leverage when the time comes to negotiate a potential settlement. Each side will surely claim that they are confident of victory; deep down, however, there is plenty of reason for the players and the league to be nervous.
For that reason they should be . . . well, you know by now what we’re going to say they should be doing.
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