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On football

No dispute: Today is key to labor fight

By Greg A. Bedard
Globe Staff / April 6, 2011

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MINNEAPOLIS — To use a metaphor both sides are familiar with, up until this point the labor dispute between the National Football League and its players was taking place on a playing field with no boundaries, yard lines, or end zones.

For all the back and forth about which side did this or didn’t do that, legally no one had any advantage. As a result, the ball barely moved.

Today, in the St. Paul courtroom of US District Judge Susan Richard Nelson, the boundaries will get painted on the field. With Nelson, we finally have a referee in this game of billions.

When Nelson, who was confirmed less than four months ago, gives her ruling, we’ll know who has the ball and the field position. And we’ll know whether the 2011 NFL season will be business as usual, or whether gates in stadiums all over the country could be locked come September when football is usually in the air.

“We’ll know who has the leverage after this,’’ said Gabe Feldman, an associate professor in the Tulane Sports Law Program. “And then the process can begin.’’

The sides arrived at this point after the NFL owners opted out of the 2006 collective bargaining agreement early, claiming the current model would not continue to work for the league. And after 17 days of failed federal mediation last month, the NFL Players Association decertified and filed an antitrust lawsuit against the league. Absent a new CBA, the owners locked the players out.

The first hearing of Tom Brady et al vs. National Football League et al, which yesterday was combined with a suit brought by former players, will be heard today.

Brady, the reigning NFL MVP from the Patriots, Indianapolis Colts quarterback Peyton Manning, and New Orleans Saints quarterback Drew Brees are among the 10 lead plaintiffs but are not expected to be in the courtroom. The NFLPA would not confirm which players would be in attendance, including Patriots guard Logan Mankins or ex-Patriots linebacker Mike Vrabel.

The most pressing issue before Nelson will be the players’ request for a preliminary injunction to block the lockout. If she grants it, the NFL will be forced — pending appeal — to resume business with rules (salary cap, free agency) it deems fair. They likely will be the same that were used during the 2010 season.

If Nelson does not grant the injunction, the owners would be free to continue locking out the players until they agreed to a new CBA.

Legal experts agree it will be a tough battle for the players.

“The standards for the granting of a preliminary injunction are pretty darn steep,’’ said Peter Carfagna, a visiting sports law professor at Harvard Law School. “The standards for a preliminary injunction are very straightforward; the art is in the applying of them.’’

To have the injunction granted, the players’ lawyers must meet a four-part test: 1) that the plaintiff is likely to win the case on merits; 2) they are likely to suffer irreparable harm in the absence of preliminary relief; 3) considering the balance of hardships of the two sides, a remedy to equalize the situation is warranted; and 4) that granting the injunction is in the public interest.

The third part is likely an easy win for the players, but the other three could prove problematic.

While by strict definition the players obviously could win their antitrust case — which alleges mechanisms such as the draft, free agency, and the salary cap hinder their free market rights — for years the players negotiated away those rights in previous CBAs.

“First they have to show they’ll probably win when there’s a full trial. That’s a leap of faith,’’ said Carfagna, who for more than 10 years was the lead counsel for agency giant IMG. “That’s tough because they agreed to all these things. We’ve been over this before. There’s been litigation that’s been resolved with everyone’s concurrence in the last CBA.

“I don’t even think the first prong is a dead-bang winner when you’ve got guys like Tom Brady sitting up there, multimillionaire, the system has certainly worked for him. It hasn’t proven to be anticompetitive for a sixth-round pick who is now set for three generations of Bradys. Same with the Peyton Mannings. How anticompetitive was it that there was a franchise tag and right of first refusal? The union agreed to all that stuff. Oh, now they’re not the union and we the individual players don’t like that?’’

An argument certainly could be made that having the NFL in business is good for the general public, since so many rely on the game to make a living.

But the real battleground will be the second prong of the test: that absent the injunction the players will suffer irreparable harm. In the absence of the injunction, the players could win treble damages down the line — triple the amount of the actual/compensatory damages.

“I think the NFL’s strongest point is that the union has not made a good claim for irreparable harm here,’’ said Boston University School of Law professor Michael Harper. “The antitrust action provides for treble damages. And although it’s hard to calculate how much a player loses by having his short career interrupted for a period of a lockout, it’s not impossible to get an idea of what he would have made and how much earnings he loses. And given the treble damages, it’s probably going to be covered.’’

Nelson, a 58-year-old former federal magistrate who earlier in private practice helped win a $6.1 billion antitrust case against the tobacco industry for the state of Minnesota, could go another route.

She could decide that the public is better served by ending the lockout to push both sides closer to a new CBA.

“If you have a judge who wants to reach that result, then she could interrupt the four standards that way to get to that result,’’ Carfagna said.

That’s why many legal experts expect Nelson, in a ruling that could take a day or, most likely, two weeks, to find for the players.

“I’m just guessing like everybody else — I think she’ll find a way to grant the injunction,’’ Carfagna said. “I think it’s more likely than not she’ll grant the injunction to bring leverage to bear on the NFL to bring this thing to a settlement ASAP.’’

Harper saw it a differently. “Under the normal standards of injunction, you’re not supposed to get preliminary injunctive relief unless the legal relief is inadequate,’’ he said. “I think the bottom line is one way or another the union is not going to get the preliminary injunction. I don’t know where that’s going to lead because they still have an antitrust case and they can still ask for damages.’’

The side that loses will seek a stay of the ruling until the three-person panel in the 8th Circuit Court can hear the appeal. That could take until the middle of the summer.

But at least we’ll know who has the leverage in the interim, and that could get football closer to a real field.

Greg A. Bedard can be reached at gbedard@globe.com. Follow him on Twitter @greg_a_bedard.

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