ST. PAUL – After a hearing that lasted more than five-and-half hours, US District Court Judge Susan Richard Nelson took the preliminary injunction motion in the Brady v. National Football League suit under advisement and said she will need at least two weeks to make her ruling.
The injunction seeks to end the lockout imposed by the owners after the collective bargaining agreement expired last month.
In the meantime, Nelson urged both NFL owners and the players to settle the case with the help of the federal court. That’s an option the NFL has repeatedly not had any interest in because any settlement would keep a new collective bargaining agreement under the purview of the court system. The NFL wants a CBA collectively bargained and third-party arbiters put in place similar to the other major sports.
“The court will rule as quickly as possible,” Nelson said at the conclusion of the proceedings. “But I do feel compelled to say that it will probably take me a couple of weeks to do a fair job to both sides and take a look at the issues and determine if a hearing is needed or not, and to rule.
“In the meantime, it seems to me that both sides are at risk. And this is a very good time for you to come back to the table. Not to the union table, not to the players’ table, but to the federal court table, which is in the middle. Let’s say neutral table, if you will. It fully protects you in every way from any consequences and this is really a matter which should be resolved in my view. There are a lot of folks who are impacted by this beyond those present today.
"And I do hope that both sides will consider utilizing the services of the federal court to sit down in the meantime and try to resolve the case. If there's any interest in that, I'm glad to facilitate any suggestions you have."
Overall, the hearing had NFL lead counsel David Boies in the crosshairs for most of the day.
Boies was at the lectern for a combined 2 hours, 22 minutes and fielded approximately 64 questions or comments from Nelson.
Jim Quinn, lead counsel for the NFL Players Association, and Michael Hausfeld, who represented the retired players in the case that was joined, combined to speak for 1 hour, 37 minutes and took only 14 questions/comments.
Usually it’s not good news for a side if a judge is repeatedly trying to poke holes in their arguments. But Boies said he’s not reading much into it.
“You really can’t,” he said. “I’ve been doing this for 45 years and I’ve never been able to figure out judge’s questions, exactly where they’re coming from. Sometimes they ask you tough questions because they are coming out the other way. Sometimes they ask you tough questions so that you’ll give them an answer that they think will support where their predisposition is. I think all you can say is the judge was very well prepared, she asked very good questions of both sides, and I think trying to read into where she’s coming from, I’m not able to do that.”
One of the haymakers Boies received from a very prepared Nelson – she said this case was all she studied the previous two weeks – was about the Norris-LaGuardia Act of 1937, which the NFL insists precludes the court from stopping a lockout.
“'Isn't there some bit of irony that the Norris-LaGuardia act, designed to protect employees from strike-breaking federal judges, should now be used to prevent an injunction of a wealthy, multiemployer unit seeking to break players who are no longer in a union?” Nelson asked.
It was one of the few times during the hearing that Boies, the legendary antitrust litigator, didn’t have a swift response.
Nelson also seemed to side with the players on their insistence that the owners can’t lock out players who are decertified, and that, in her words, the players “appear to have a strong” case for irreparable harm.
That’s one of the key points in granting a preliminary injunction. And Boies was quick to point out that the NFL does not agree the players’ case is strong on that point.
Other than that mention, there was hardly any talk about the conditions needed to grant a preliminary injunction.
Nearly all the time was spent on the Norris-LaGuardia Act, and on whether the judge should wait for the National Labor Relations Board to determine whether the NFLPA is still a union or not.
Boies made some convincing arguments on that point. But we’ll have to wait for Nelson’s ruling to see whether she bought any of them.