Kallas Remarks: NFL Lockout Negotiations More Important Than Appeal

By Steve Kallas
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Today, the Eighth Circuit Court of Appeals will hear the owners' appeal of a lower court judge's decision to stop the NFL lockout.  As you probably know by now, Judge Susan Nelson in Minnesota ended the lockout but, on two separate occasions, a three-judge appellate panel voted 2-1 to first, temporarily stay the order ending the lockout and then, to stay the order ending the lockout pending the present appeal.

That means, barring a settlement of the bigger picture issues (i.e., reaching a new agreement between the players and the owners), the lockout will continue until (at least) a decision on the appeal is reached by this Eighth Circuit panel.

WHO WILL WIN THE APPEAL?

It seems pretty clear that the "conservative, pro-business" Eighth Circuit is going to rule 2-1 for the owners.  How do we know?  Well, there have already been two stay decisions written and, in each, both judges who were George W. Bush appointees made it clear that essentially (and inexplicably) the NFL owners would suffer irreparable harm if the lockout had been lifted pursuant to Judge Nelson's order (it's interesting that the lockout was ended for a couple of days pursuant to Judge Nelson's order and the NFL had no problem functioning).

Since there is no irreparable harm if money damages could settle the issue, it's hard to believe that one, let alone two, federal appellate judges could hold that way.  But they already have, so it's irrelevant what any commentator thinks about the issue at this stage.  Conversely, Judge Nelson in the district court and one of the three Eighth Circuit judges held (correctly, in this writer's opinion) that it is the players, with a very limited career time (average of 3.3 years), who are watching their careers being irreparably harmed; that is, money can't give them back the time and preparation they are missing every day the lockout remains in effect.

IS THE APPEAL IMPORTANT?

Well, it is, to some degree.  Right now, this is all about leverage.  If the players were to win (unlikely, given the already-written stay decisions), they would have the leverage as the lockout would be lifted and the players could report for work.  If the owners win (as one would have to expect at this point), they have the leverage as the lockout will continue.

But the appeal is not as important as it once might have been.

WHAT ABOUT THE PRESENT, ON-GOING NEGOTIATIONS?

This is what is most important right now.  According to numerous reports, for the last couple of days, representatives of the NFL teams, including the Commissioner and a number of prominent owners, on the one side, and DeMaurice Smith and representatives of the players, on the other side, have been meeting outside of Chicago.  It is here, and not in court, where the billionaires and millionaires must resolve their differences.

ALTHOUGH THE OWNERS PRESUMABLY HAVE THE LEVERAGE, THE PLAYERS (AND THEIR INTESTINAL FORTITUDE) MAY VERY WELL CALL THE SHOTS

This argument is all about the staying power of the players.  If they are willing to go the distance, even with the expected loss in the Eighth Circuit Court of Appeals, the NFL could actually miss some games this year.  The NFL owners have to recognize that; why else would they attempt to negotiate now when things are (finally) going their way?

We will be told that it's "for the fans."  But only the dumbest of fans will believe that.  When Goodell and Smith review their behavior over the last year or so in this fiasco (and make no mistake, that's what it is), they will both discover that their respective efforts to win the fans over to their respective side only made them both look foolish.

In a battle of millionaires against billionaires, no intelligent fan thinks either side really cares about the fans.

If either side really did care about the fans, this would have been settled long ago.

Despite all of this, if no agreement is reached in the Chicago negotiations, it may very well become a bigger spitting contest than it already is (and make no mistake, there is a lot of ego – on both sides – here).

If the players decide to stick their heels in despite negative legal rulings, this could be a long lockout.  Are players really willing to miss game checks?  At this point, the sides have to be looking for a settlement that will make both sides, at least superficially, able to claim victory.  Smith, a relative newcomer to the NFL wars, will have to look his players in the eyes and be able to declare victory.  Goodell, not as much of a rookie as Smith (but certainly not a Pete Rozelle nor even a Paul Tagliabue), has to show the owners that he can stand up and fight the players.

So the public perception of the agreement (who won and who lost), in some respects, will be as important as the agreement itself.

WHERE DO THE NFL COACHES STAND IN ALL OF THIS?

Well, we've discussed before how the coaches (and even the general managers) are kind of stuck in the middle of all of this.  The coaches want their players in camp.  The GMs want the ability to sign undrafted rookies and free agents.  All teams are being hurt (but not irreparably, it says here) by the lockout.

Indeed the NFL coaches have filed a "friend of the court" brief in the Brady case.  FOR THE PLAYERS.  Interestingly, the 14-page brief argues that the NFL coaches will be irreparably harmed (there's that phrase again) if the lockout continues.  And it says here that they are right.

But there is even fallout from that brief.  According to published reports, the Washington Redskins' assistant coaches, perhaps fearing for their jobs (obviously they are viewed to be management and who knows what owner Dan Snyder's feelings on his coaches supporting the players will be), rejected the contents of the brief, claiming they had no idea such a brief would be filed siding with the players.

Again, this is one gigantic mess that can only be settled by an agreement between the players and the owners.

Here's hoping that they can stay in that room outside Chicago until an agreement can be reached.  The appeal in court today becomes less and less important as the negotiations come closer and closer to settling this debacle.