Friday morning I jumped out of bed like every morning ready to attack the day. It was a typical St. Louis June day, 90 degrees with high humidity at 10 a.m., the kind of weather where you sweat just standing in place. But it was much different in the fact that I was headed to the Thomas Eagleton Courthouse downtown, where the NFL and NFLPA would give their oral arguments in front of the Eighth Circuit Court of Appeals.
When I arrived at the courthouse, it looked like a movie was being filmed. There were multiple television trucks with satellite dishes and giant antennas reaching to the sky, canopies spiked in the grass with giant foil shields directing light and cameramen running around positioning and testing equipment.
Once inside the courthouse doors where the air conditioning felt awesome, security guards channeled everyone into one line towards the sensor machines that mirrored that of the TSA set-up at an airport. Once through the check point, I headed to the 22nd floor where a press room was set up as home base for those traveling media folks from out of town.
At 9:15 I took the elevator up to the 28th floor, where a large crowd assembled outside the entrance of the courtroom. The Eighth Circuit Court of Appeals clerk, Michael Gans, was directing traffic and allowing media in first, public and law students last (which is comparable to playing in the Super Bowl for them).
As I found my way to my seat, got organized with my notebook, pen and Iphone in hand, I looked around. The walls were of dark wood with a giant deep coffered ceiling that was white. Three large chairs were set in front several feet above eye level as I sat in my seat. The seats reminded me of church benches with extremely comfortable padding. While comfortable, there was minimal leg space in front.
Then 20-plus retired and current players walked in. They included Cornelius Bennett (retired Buffalo), Steve Smith (Panthers), Ernie Conwell (retired Rams), Brian Waters (Kansas City), Adam Goldberg (St. Louis) and several others. Then came DeMaurice Smith, former executive director for the NFLPA, which is now a trade association.
The arguments began and the schedule was tight and stayed within the prescribed guidelines of a half-hour each. A young lady stood tall, and shouted please rise and welcome to the Eighth Circuit Court of Appeals. There was more, but I tuned her out and focused on the judges walking through the doors.
The lawyer representing the owners, Paul Clement, started the proceeding. He was extremely smooth in his delivery and approach while concentrating on the league’s struggles with the NFLPA as a labor dispute, not an antitrust litigation. He continued to point out that the owners’ position has not changed since March 11, that the union cannot and did not decertify within hours from engaging in a collective bargaining session on that day. He referenced his brief filed that the players can’t “flip the light switch” and play “Gotcha!” moving from labor to antitrust.
Theodore (Ted) Olson, the lawyer representing the players, was smooth and direct in his oral arguments with an authoritative voice and strong demeanor. He concentrated on and hammered home the fact that the players are not and do not have to be a union and can’t be forced to as a group of employees to be a union.
The two judges that were extremely vocal in these oral arguments were the same two judges that voted in favor of the owners in the stay ruling (Benton and Colloton). They were aggressive and challenged both presenters and it seemed at times that they really attacked Olson. The directive and line of questioning was the phrase “sufficiently distant in time and circumstances.” Mr. Clement argued that the labor exemption for the owners protected them from antitrust laws. Judge Benton asked him several times and wanted a time frame as to how long that would be. Clement responded “at least six months.”
Clement spent 17 of his 25 minutes (he had five minutes in rebuttal time) arguing that the Norris-LaGuardia Act clearly prevents injunctions being granted “arising out of labor disputes.” As explained to me by a lawyer source in the courtroom, the owners’ interpretation of the Act is certainly broad after reading their brief, and questioned Mr. Clement’s inability to address the interpretation. Mr. Olson never made those arguments, which surprised several lawyer types standing in the lobby because they were an extremely important part of the brief presented to the judges.
Judge Bye sat motionless with an occasional glare at the presenters, and spoke at the closing of the oral arguments. He is clearly siding with the players based off the last vote for a stay. He made the statement that the ruling will come “in due course,” and said the Court “wouldn’t be hurt” if the parties settled this dispute themselves.
In my opinion, the NFLPA felt since they prevailed in the antitrust courts in the past, that they had a good case. When an extension to the 2006 CBA could not be reached, they decertified what was known as the NFLPA before the 11th hour and are willing to fight through litigation in antitrust court. They feel they have leverage because the lockout will be considered illegal. The owners feel they have leverage because the decertification is an illegal tool. The only two tools that can be used in a CBA dispute are a strike (player) and lockout (owners). The owners feel the best way to encourage bargaining and an eventual CBA is by keeping the lockout in effect.
I hope whatever progress was made in Chicago this week continues. I feel that is the first step in a long journey that can be shortened with the owners’ labor committee and the commissioner having ongoing sessions with Smith and the player’s representatives to solve issues and then let the lawyers come in to finalize the agreement by dotting the “I’s” and crossing the “T’s.”