Sports In the Courts Blog : New York Attorneys & Lawyers Specializing in Sports Law & Legal Analysis

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The NFL owners got a small victory on Friday, when the 8th Circuit Court of Appeals granted them a temporary stay of Judge Nelson’s ruling (invalidating the lockout) while the court decides whether it will consider the merits of the NFL’s appeal at this time. The 8th Circuit will decide whether it will hear the appeal sometime this week, if the court decides not to get involved then Judge Nelson’s ruling will stand until the regular (non-emergency) appeals process at the end of litigation commences.

The players’ union acted like this ruling was no big deal and completely expected. But they are putting a good face on a small yet bad result for the union. As Judge Dye wrote in his stinging dissent, appellate invention, at this point in a federal litigation, should be reserved only for “emergencies” like death penalty cases and major civil rights violations not a labor dispute between wealthy owners and rich players. In my humble opinion, Judge Dye is right but the fact that the court did choose to issue a temporary stay shows that the players’ have reason to be concerned.

The NFL lockout has always been about negotiating leverage. The owners remember how they almost broke the union (and the league too) during the last players’ strike in 1987 (you can’t forget the “replacement players” disaster). The owners believe that a lost paycheck is too much for the players to bear and that this fear will lead to a positive CBA for the NFL.

The owners’ strategy has a basis in fact given the players’ failure to remain united in 1987. What the owner may be blinded to is how much better the NFL brand has become since that time. The continued lockout will eventually cause some damage (maybe slight in the near term) to the NFL brand. Don’t believe me, check out the NFL draft TV ratings, down 16% from last year and complete with a booing of Commissioner Goodell. How many times in recent history have you heard of a decline TV ratings and the NFL?

The NFL and the union still have time to get to a new CBA. Both groups however would be foolish to rely on the court system to solve their labor problems. I have read that some commentators believe that if the 8th Circuit takes the case, the appeal would be decided in a few months. While I don’t practice in the 8th Circuit, the last the federal appeal I was involved with took 13 months to decide which was not unusual. A time frame of over a year would leave the NFL and its players in a legal no-man’s land they never imagined.