Wednesday, May 4, 2011

Breakdown: NFL Stay, What's Next & Copy of Decision

For those looking for musical accompaniment for this column, please feel free to click here and listen to Lisa Loeb's song, Stay (I Missed You). I miss Lisa. I enjoyed her show, Number 1 Single. From what I understand, I was the only one. Well, me and Ethan.

Here's a breakdown of recent events, and what's next on the NFL front - Q&A style. Feel free to leave further questions in the comments section or send me questions via Twitter (@EricOnSportsLaw.

Remind me Eric - what happened last week

So by now you've heard that the 8th Circuit Court of Appeals granted the NFL a temporary stay of the decision to end the lockout. So the result is that the lockout is restored on a temporary basis until the Appeals Court decides whether to put a longer stay in place.

What's Stay?

In a case like this, it's just another term for the suspension or temporary postponement of a Court's decision ordering someone to do something. For example, if the Court ordered one party to pay another party $50,000.00, the party that has to pay it can seek a stay of that Order pending appeal (or reconsideration) of the Order.

Fine - that makes sense. How does the stay apply to this case?

In the case of the NFL, Judge Nelson in the lower court made a decision that the lockout should be lifted. The NFL wasn't pleased so they asked Judge Nelson to stay (or suspend) her own decision pending an appeal of her ruling addressing the legality of the lockout.

Judge Nelson turned down the NFL's request for a temporary suspension of the Order. So the NFL went to the Court of Appeal and asked for the same temporary stay - and they got it. That means that the NFL lockout has been restored on a temporary basis. That's where we are now.

What's next - are we in for more stay talk?

Lisa Loeb will be happy because yes we are in for more stay talk. The NFL has requested an even longer stay until the Appeals Court rules on the bigger issue - is the lockout legal at this early stage? If the NFL gets that longer stay, it could be in place until at least early June, and probably longer.

When will the Appeals Court rule on the longer stay?

I expect a decision this week, and probably today or tomorrow.

Why do you say the stay could be in place "until at least early June"?

The hearing to determine the legality of the lockout is set for June 3. That could change but that's the earliest date. So if a longer stay is granted this week, and the lockout remains in place, nothing will change until June. And remember, the oral hearing is set for June 3. After that, though, the Appeals Court will have to consider the issues and render its decision. So that will cause a further delay. So the lockout could remain in place for some time. On top of that, if the Appeals Court rules in favor of the NFL, the lockout will remain firmly in place.

Do you think a longer stay will be granted?

Good question. Before the temporary stay was granted, everything was going as scripted and momentum was firmly with the players'. They won the big $4 billion TV revenue lawsuit, they decertified and were successful in getting the lockout lifted.

However, everything changed when the Appeals Court restored the lockout. Generally, a stay in these circumstances is reserved for emergencies, like a stay of execution. So this result was a bit of a surprise.

This doesn't mean a longer stay will be granted. However, I would not be surprised if the NFL got the longer stay.  If they do, momentum is back with the NFL. This could be big.

How many Judges on the Appeals Court granted the short stay?

The Appeals Court has a Panel of 3 Judges. majority rules (2 of 3). In this case, two Judges sided with the NFL and one Judge didn't agree and sided with the players. The one judge who didn't agree "dissented", which means he didn't agree with the majority.

Why did the majority of the Judges say in the Decision?

The majority wrote as follows: "The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal."

So they didn't rule on whether they would ultimately find for the NFL and grant a longer stay. They just basically said they need time to review the matter more carefully, and pending that review, they decided to restore the lockout.

Why did the "dissenting" Judge disagree?

That Judge thought stays should be reserved for "emergency situations", and this was not one. The Judge wrote as follows:
In my tenure as an appellate judge, the only circumstances I can recall in which the power to grant a temporary stay has been invoked by a party, and exercised by our court, have been circumstances which truly qualify as emergencies. 
The Judge cited examples of emergencies, like the pending execution of a prisoner or deportation of an individual.

Here's what the Judge wrote specifically:
...I have granted such a request on behalf of an immigrant who has filed a petition with our court to review a removal order entered by the Bureau of Immigration Appeals (BIA), when the immigrant's removal date was imminent and the government had not yet responded to the immigrant's request for a stay of removal pending our review of the petition. Another situation in which a temporary stay, pending review of a motion for a stay itself, may be appropriate is in a death penalty case where an execution date has been set and is imminent.
Such circumstances qualify as true emergencies because of the impossible or nearly impossible task of reversing the consequences of allowing a district court's order to take effect.
The Judge went on to write that the NFL did not convince him hat this is a similar emergency, and that if the lockout stayed in place, the outcome was not "irreversible".

I'm in a keeper pool and I picked up Peyton Hillis for $1. I want to build around him and I'm really excited about my fantasy team. Do you think there will be football in 2011?

If the temporary stay becomes permanent, and the lockout stays in place, then the NFL will regain its leverage. A permanent stay would be very significant. This once again becomes an issue of who has staying power. The answer to that may be the owners since the players have limited careers and limited income.

Don't forget that of the 1900 or so NFL players, half that population makes $500,000 or less. They won't like uncertainty and may start to voice their concerns.

So if the NFL gets the permanent stay, it is possible that football could be delayed. Goodell said yesterday that he was concerned that the season may not start on time: "We do not have a drop-dead date right now. My concern is so much has to happen to get ready for the regular season".

However, a longer stay may encourage the sides to sit down and hammer out a deal. I remain optimistic that we will have football in 2011 as we are not looking at a fundamental overhaul of the NFL business model like we had with the NHL in 2004-05, which resulted in a lost season. The issue here is how to divide the rather enormous revenue pie.

So a lot will hinge on whether the NFL gets a longer stay this week. Stay tuned.

Eric I'm bored - can I see the short 4 page decision of the Appeals Court where they granted the temporary stay?

Sure - click here to read it. Here's a snapshot of the first page:

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