By Michael McCann
April 29, 2011

NFL players suffered a significant and surprising courtroom defeat Friday evening and are once again subject to a lockout. Two of three judges on a panel for the U.S. Court of Appeals for the Eighth Circuit granted the NFL's request for an administrative (temporary) stay of Judge Susan Nelson's order to enjoin the NFL lockout. As soon as Monday, the panel of three judges will announce if it will make the temporary stay permanent. Until that time, the temporary stay empowers the NFL to reinstitute the lockout. The temporary stay also supplies the NFL with a much-needed legal victory after a series of setbacks.

To be clear, the granting of the temporary stay of Judge Nelson's order does not necessarily mean that the Eighth Circuit will make the stay permanent. In fact, the players and league have not yet submitted all of their legal briefs. The wording of the Eighth Circuit's order, moreover, does not in any way signal that the NFL will obtain a permanent stay. As authored by Judges Steven Colloton (nominated by President George W. Bush and confirmed by the Senate in 2003) and William Benton (nominated by President Bush and confirmed by the Senate in 2004), the order simply states that the Eighth Circuit has granted the temporary stay "to give the court sufficient opportunity to consider the merits of the motion for a stay pending appeal." While several cases are cited as legal support for the granting of the stay, the order makes no mention, let alone analysis, of arguments raised by NFL players or the NFL.

On the other hand, and as stressed in a biting and detailed dissent by Judge Kermit Bye (nominated by President Clinton and confirmed by Senate in 1999), the panel's granting of a temporary stay logically requires the league to show some degree of irreparable harm, which is required for a permanent stay. Therefore, if two of the three panel judges already believe that enjoining the lockout would irreparably harm the league and its owners, the NFL seems poised to obtain the permanent stay. The rapid speed at which the panel has reviewed Judge Nelson's order also suggests the NFL will obtain a permanent stay.

Judge Bye's dissent highlights why he views the temporary stay as unwarranted and extraordinary. He emphasizes that in his 12 years of presiding on the Eighth Circuit, he had only observed a temporary stay granted for two matters, both of which dealt with issues far more serious than whether NFL players can enter team facilities and whether NFL teams can sign players: The impending execution of a prisoner and impending deportation of an immigrant. In addition to the profound seriousness of those matters, Judge Bye stressed that absent the granting of a temporary stay for an execution or deportation, irreversible or improbable outcomes would have arisen -- a prisoner would have been executed and a deported immigrant probably wouldn't have come back.

In contrast, Judge Bye emphasized, the NFL's own actions suggest that Judge Nelson's lifting of the lockout would not have led to irreversible or improbable outcomes. In fact, he characterized the NFL as hypocritical in claiming that re-opening business following the injunction would be complex and require time to coordinate, when "within a day" of Judge Nelson's order, the NFL, "already planned post-injunction operations which would allow the players to have access to club and workout facilities, receive playbooks, meet with coaches, and so forth."

If the temporary stay is made permanent, the NFL would completely regain the bargaining leverage. Keep in mind, an actual trial of Tom Brady et al., v. NFL would probably not occur until 2012. A review by the U.S. Supreme Court in the interim would also be unlikely, to say the least, particularly since the current composition of Supreme Court justices is generally regarded as business or management friendly.

The players would still have one powerful bargaining card in the event of a permanent stay. Back in March, Judge David Doty ruled the owners cannot keep $4 billion in network television revenues should there not be a 2011 season. On May 12, Judge Doty will conduct a hearing on damages and how the $4 billion would be divided in the event of a lost season. Judge Doty's decision, which can be appealed to the Eighth Circuit, prevents owners from relying on a major source of income in the event of a lost 2011 season and thus harms their bargaining leverage. Still, the relative wealth of owners to that of players, along with substantial sources of non-NFL earnings for most owners, suggests that owners would have greater tolerance for a missed 2011 season.

Thus if the NFL wins a permanent stay before the Eighth Circuit, the league could tell the players, in essence, "If you want a 2011 season, take what we offer you. If you don't take our offer, we hope you have saved up."

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law and analytics reading group at Yale Law School. Follow him on Twitter.

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