MINNEAPOLIS - Handed a setback by one judge this week, the NFL is preparing to call on another court for help in this fight with the players over the present and future of the $9 billion business.
U.S. District Judge Susan Richard Nelson sided with the players and lifted the lockout, and she said Tuesday she'll hear from them Wednesday morning before considering the league's request to put her ruling on hold.
If Nelson denies the NFL's request for a stay, the owners will ask the 8th U.S. Circuit Court of Appeals in St. Louis for the same thing. They're also asking the appeals court to overturn Nelson's decision; the 8th Circuit would have "de novo'' jurisdiction, meaning it can consider the case anew.
"We believe that our legal position is meritorious,'' NFL lead negotiator Jeff Pash said. "We believe it will be upheld on appeal.''
The 8th Circuit has tended to lean to the right with its rulings, but it's not certain that would actually help the NFL. After all, the NFLPA shed its union status, and ordering the players back to organized labor doesn't fit with a pro-business, employer-friendly trend.
The league expressed optimism and confidence about the case, regardless of any particular judicial views.
"On these issues in particular, the history of appeals court rulings has been quite different from how trial courts have looked at this,'' Pash said. He added: "We feel we have very credible legal arguments to assert, and we'll know in a short period of time whether we're right or not.''
Pash pointed to the NFL's prompt filing Monday night of an expedited request for the stay as proof the owners aren't dragging their feet to keep from starting the league year before they're ready.
John Hancock Jr., a labor lawyer in Detroit for the firm Butzel Long, said he believes Nelson's order was thorough enough to be stay-proof.
"Once you find that there's immediate and irreparable harm, which is the basis for the injunction, it's hard to say you're going to wait a while to put that into effect,'' Hancock said.
That the players gave up union status, he said, also might make it difficult for the league to win the appeal.
"Once you agree to that ... the law is pretty well settled,'' Hancock said.
Seth Borden, a labor law expert at McKenna, Long and Aldridge in New York, said he believes Tuesday's chaos around the NFL could actually help the NFL's argument for a stay.
"The confusion - about trades, free agency, signings, workouts - possibly provides the league with an argument that until the appeals can be heard, it doesn't make sense to go forward with a new league year,'' Borden said. "The NFL could try to argue that doing so would cause irreparable harm to the league, if the lockout is reinstated on appeal and there have been signings and trades made under the old agreement.''
Borden also said although he saw Nelson's ruling as "very thorough and well-reasoned'' he felt she "gave the players a pass'' on the irreparable harm issue by essentially placing the blame for the work stoppage solely on the owners.
