Buffalo judge to decide fate of NFL,

[Hplarrm]

Players answer NFL's motion for stay

 

http://sports.espn.go.com/nfl/news/story?id=6436166

The dueling motions go back and forth.

 

My guess is that Nelson has timed her finding such that it comes at the same time the NFL is going into its usual press overdrive mode with the draft. My sense is that the effect of this will be that normal folk (I do not consider us Bills addicts normal) will begin paying more attention to pro football than they normally do. These folks will be reintroduced to the labor dispute in the context right now the regular season appears to be on track because the players just won some court decision, but the owners are filing appeals to stop the season.

 

Many or most folks will not really pay attention to the details offered by either side.

 

However, one prob for the owners is that they will be reintroduced to the NFL with the message that the owners are losing in court and are taking action for whatever reason to delay the season.

 

Not good for the owners to the extent their is a media battle to claim who is right and who is wrong.

 

Doty seemed to play the same timing game when he released his opinion as the deadline for declaration of declaring an impasse approached,

 

The team owners are certainly trying to sell the story that these negative decisions were expected by the owners and their strategy was designed taking into account the likelihood of these pro-NFLPA rulings.

 

"Keep moving, keep moving nothing to see here"

 

However, this comes off as simply whistling as one goes by the graveyard. The owners are losing on this one thanks to some nice forum shopping by the NFLPA.

[K Gun Special]

The dueling motions go back and forth.

 

My guess is that Nelson has timed her finding such that it comes at the same time the NFL is going into its usual press overdrive mode with the draft. My sense is that the effect of this will be that normal folk (I do not consider us Bills addicts normal) will begin paying more attention to pro football than they normally do. These folks will be reintroduced to the labor dispute in the context right now the regular season appears to be on track because the players just won some court decision, but the owners are filing appeals to stop the season.

 

Many or most folks will not really pay attention to the details offered by either side.

 

However, one prob for the owners is that they will be reintroduced to the NFL with the message that the owners are losing in court and are taking action for whatever reason to delay the season.

 

Not good for the owners to the extent their is a media battle to claim who is right and who is wrong.

 

Doty seemed to play the same timing game when he released his opinion as the deadline for declaration of declaring an impasse approached,

 

The team owners are certainly trying to sell the story that these negative decisions were expected by the owners and their strategy was designed taking into account the likelihood of these pro-NFLPA rulings.

 

"Keep moving, keep moving nothing to see here"

 

However, this comes off as simply whistling as one goes by the graveyard. The owners are losing on this one thanks to some nice forum shopping by the NFLPA.

 

THe NFL has been losing in Federal court for years. They got spanked by the Sup Ct dominated by pro business conservatives.

 

Sometimes a ruling is really on the law. Have you seen any legal scholars blasting Nelson's ruling?

[Mr. WEO]

I do not know him so I really do not know.

 

However, four things which I would guess are inherently Brady which might impact his decisions:

 

1. He is a leader who loves to lead. Perhaps leading his fellow players to an even greater position of control has some appeal to him,

 

2. He is proud and competitive man and the NFL owners have directly challenged all the players and responding in a manner that takes them on pretty directly would seem to be consistent with the character he has shown.

 

3. Having the respect of his teammates and leading them into battle is what he has done successfully and well throughout his career. Perhaps he has just learned to fake sincerity well and he does not care about his fellow players. Yet, I doubt that and again this would speak to him playing a lead role in a master strategy to take on the owners.

 

 

4. I have no idea whether he feels he has enough money (or even if it is possible to have enough). However, my sense is he likely has made a chunk that taking on the league may be a Dom Quixote like exercise he may lose but actually it is likely a relatively low risk move for him to make with a potential of large fiscal benefits.

 

Perhaps you have a read on him and the et al. that they will simply cave in the face of a pretty direct attack from the owners. Perhaps bending over and saying thank you sir can I have another is what you would do so you assume it is the logical thing for anyone to do.

 

However, I am influenced strongly by the fact that the NFLPA has been on a roll since the late 80s. They made an unorthodox move of threatening to decertify after the team owners simply kick the butt of the old AFL-CIO union tactics led by Ed Garvey.

 

This maneuver grasped victory from the jaws of defeat and produced the CBA which essentially forced recognition of the NFLPA as a partner.

 

Led by Gene Upshaw and a talented tenth of his fellow players (most of whom are steroid and drug infused lemmings but this actually makes it easier for the talented tenth to lead them) led the NFLPA to negotiate the last CBA which he dictated the player portion of the total revenues needed to start with a 6. Indeed, though certainly part of the final calculation was fun with #s, but by most estimates the players do take in les than 60% but still comfortably a majority of the total take,

 

If I am Brady, et al. the question to me is why should I try to buffalo the team owners again, but actually the question is why not and how am I gonna do it.

 

In the end, it seems quite clear to me that the athletes make more money any time there is actually competition rather than collusion between the owners. If I am Brady et al. to reach my goal of making the most money possible I am interested in not killing the NFL but defanging the owners quite a bit and introducing a NewFL which through competition allows the players association to represent players in a new league and the NFL.

 

My thinking is that the key thing here is to be a man and I am gonna make more bucks either way.

 

So my question to you is why not take on the NFL rather than caving to them. If you agree this is their default reaction then how do you take on the owners?

Actually, the players took the beating in the "late 80s". Their strike was a disaster and the union had their antitrust suit tossed. Then they decertified in '89. The league and the players came together, without the union, came to agreemment in which the owners allowed FA, but the players had to accept the salary cap.

 

You still haven't told us why Brady would lead the "NewFL", other than to "attack" the owners. And what happens to your goofy "NewFL" when after the new CBA is signed?

 

 

 

i am curious, why don't the players consider approaching a venture capitalist with a couple billion dollars, at least, and see if he would be interested in lending his financial support to a new league where fans own the teams like in green bay. the players would shape the league's structure in the manner that they are attempting to shape the nfl's structure during this lockout. the venture capitalist would be the financial hub at the beginning: fans would buy shares of stock in their city's team from him. once the league is on stable footing the league originator takes his pre-determined cut of present and future profits and fades away. players win. fans win. owners lose.

This "new league" stuff is funny. Where does the money come form to pay back any "venture capitalist"? There will be no TV money so how can a new league exist. There is no market for it.

 

There is a "new league" already well established. It's the UFL and already is populated by former NFL players. There is absolutley nothing preventing any NFL player from leaving the league and joining the UFL. Why don't they?

[Orton's Arm]

i am curious, why don't the players consider approaching a venture capitalist with a couple billion dollars, at least, and see if he would be interested in lending his financial support to a new league where fans own the teams like in green bay. the players would shape the league's structure in the manner that they are attempting to shape the nfl's structure during this lockout. the venture capitalist would be the financial hub at the beginning: fans would buy shares of stock in their city's team from him. once the league is on stable footing the league originator takes his pre-determined cut of present and future profits and fades away. players win. fans win. owners lose.

"Players win. fans win. owners lose." The problem with that equation is that I don't necessarily see "venture capitalist wins" in it. I'll grant that if everything goes well, the venture capitalist probably would come away with significantly more money than his initial investment. But there are considerable risks fraught with trying to build a football league that would not merely compete with, but actually replace, the NFL.

 

I have heard it said that for every ten ventures a venture capitalist funds, eight will fail, one will be a moderate success, and one will be a big success. Therefore, venture capitalists want to know that any given new venture they undertake will have at least the potential to pay for ten failed ventures. The two questions we need to ask are: 1) would $2 billion be enough to start a football league that's good enough to compete with the NFL, and 2) could the venture capitalist reasonably expect to turn that $2 billion into $20 billion if the league succeeded?

 

To address the first question, the NFL receives over $9 billion in revenue each year. $1 billion is taken off the top, and the players can receive up to 60% of the rest. That is about $4.8 billion in player salaries each year; though the actual sum is a little less due to some teams not spending up to the salary cap. If this new league wanted to attract all the NFL's players, it would presumably have to similarly spend at least $4.8 billion on player salary costs alone.

 

There are also stadium costs: this new league would not own any stadiums of its own. It would take several years (and a lot of money) to build the stadiums it would require. At least initially, the new league would have to negotiate deals with existing owners of stadiums. The NFL would, of course, put pressure on the NCAA to avoid letting this new, competing league use their stadiums.

 

There would also be considerable advertising costs, promotion costs, etc. Not to mention all the non-player employees who'd need to be hired to make this work. $2 billion wouldn't be nearly enough to cover the league's first year costs, at least not if you wanted an NFL-scale league.

 

If this league had, say, $10 billion set aside to cover these costs, it could probably convince both players and television networks it was here to stay. This would cause NFL players to leave for this new league, and would also help the new league obtain a critical television deal. These things wouldn't happen if the league was under-funded. An NFL player who was reasonably happy with his contract probably wouldn't want to jump leagues, even for a little more money, if he felt the new league would collapse in a couple of years.

 

Now that you've overcome the aforementioned hurdles, you now have to contend with the biggest hurdle of all. NFL fans have decades of emotional and financial investments in their existing teams; and no connection at all to this new league's expansion teams. How many Green Bay Packers fans do you think would willingly miss Packers games to watch this league's Green Bay team instead? If the Bills were to make it to the Super Bowl, would you skip watching that Super Bowl to see the new league's Buffalo team play a championship game instead? How much connection did you feel to the Buffalo Destroyers back when the Buffalo Destroyers existed? NFL fans largely root for the uniforms, and the NFL owns the rights to those uniforms.

 

If the new league stuck around long enough, and gained enough attention for itself, even the problem described in the above paragraph could be overcome. But now--assuming all this has worked--it would be time for the venture capitalists to receive their reimbursement. Your idea seems to be to have this league's players receive even more money than the NFL is willing to pay its players. One could imagine the NFL raising its salary cap to allow itself to outbid this new league for player services. The problem is that whatever money gets absorbed by the players--and they'll be absorbing a lot!--will be unavailable to the venture capitalists. The prices the VCs get for selling their shares will be largely determined by the expected future profitability of the franchises. The venture capitalists would be taking a ton of risks here, which means they're going to want a ton of compensation if those risks are successfully overcome. I just don't see them getting that kind of compensation.

 

The NFL players are already being very generously compensated. From a financial standpoint, it does not make sense to create a new league with a goal of further increasing that compensation.

Edited April 27, 2011 by Edwards' Arm

[papazoid]

i am curious, why don't the players consider approaching a venture capitalist with a couple billion dollars, at least, and see if he would be interested in lending his financial support to a new league where fans own the teams like in green bay. the players would shape the league's structure in the manner that they are attempting to shape the nfl's structure during this lockout. the venture capitalist would be the financial hub at the beginning: fans would buy shares of stock in their city's team from him. once the league is on stable footing the league originator takes his pre-determined cut of present and future profits and fades away. players win. fans win. owners lose.

 

this may be of interest to you....

 

USFL v. NFL: The Challenge Beyond the Courtroom:

 

This is a story of a professional football league that between 1983 and 1986 captured the attention of millions of Americans – both on the field and in the courtroom. Initially conceived as a spring time sport, the founders sought to draw in fans with a high level of competition played on national television stage. In its first two years, the league was able to produce TV ratings and game attendance that nearly rivaled those of the more established National Football League. During this time, the success of the league was spurred on by superstar players such as quarterbacks Jim Kelly and Steve Young, running back Herschel Walker, guard Nate Newton, and defensive end Reggie White. Games were played in front of capacity crowds at stadiums such as Soldier Field in Chicago, the New Orleans Superdome, and Giants Stadium in New Jersey. Prior to the 1985 season, the league was offered nearly $250 million in cable and network TV contracts. Despite all of this apparent success, within 6 months the league would be in financial ruin and most of its players and owners would soon be forgotten. This is a story about the difficulties of competing against an established professional football league and the legal battled that ensued. This is the story of the United States Football League.

 

http://www.law.berkeley.edu/sugarman/Sports_Stories_USFL_v_NFL__-_Boris_Kogan.pdf

[K Gun Special]

I do not have time to read all of the posts in this string so I do not know if anyone else mentioned this.

 

I read yesterday that the judge denied the NFL's request for an evidentiary hearing. Accordingly, the hearing back on April 6th or whenever it was did not include any testimony. In other words, she heard argument from counsel and made her decision on the law without having to weigh any testimony.

 

Why is that important you ask? It is important with regard to how much deference (if at all) the appellate courts (8th Circuit and Supreme Court) have to give her ruling). If all she did was make a determination as to the law, the appellate courts can review the ruling de novo -- they do not have to give her any deference at all.

 

This is very important. As I understand it, one of the next big disputes between the NFL and the NFLPA* is what will be the standard of review. If the 8th Circuit agrees that the standard of review is de novo, it is free to do whatever it wants. In this regard, the vast majority of the 8th Circuit judges are republican appointees (all but three if I recall correctly).

 

In any event, it gets a bit complicated, but I like the NFL's odds on appeal.

 

Read the article on SI.com written by the lawyer specializing in sports related law. http://m.si.com/news/wr/wr/detail/3662306/2;jsessionid=8898BD9ABB166E61BEAEE9E49C69AA36.cnnsi1

""the Eight Circuit will review Judge Nelson's order under the deferential "abuse of discretion" standard."""

The review standard is abuse of discretion not de novo. Rule 65 doesnt require the judge to make a separate written ruling on the facts nor does it require witness testimony.

 

Even if what you say is true, and there was a requirement for testimony, the appeals court would remand the case for testimony and Nelson would likely rule the same anyway.

[Peter]

Read the article on SI.com written by the lawyer specializing in sports related law. http://m.si.com/news...9C69AA36.cnnsi1

""the Eight Circuit will review Judge Nelson's order under the deferential "abuse of discretion" standard."""

The review standard is abuse of discretion not de novo. Rule 65 doesnt require the judge to make a separate written ruling on the facts nor does it require witness testimony.

 

Even if what you say is true, and there was a requirement for testimony, the appeals court would remand the case for testimony and Nelson would likely rule the same anyway.

 

 

The question is whether she made any factual determinations. If not, it is a de novo review. If she did, it is abuse of discretion. This is an issue where the NFL and NFLPA* will cross swords. We will find out what standard of review will be employed when the 8th Circuit issues its opinion.

[K Gun Special]

The question is whether she made any factual determinations. If not, it is a de novo review. If she did, it is abuse of discretion. This is an issue where the NFL and NFLPA* will cross swords. We will find out what standard of review will be employed when the 8th Circuit issues its opinion.

 

No its not. I just showed you a lawyers in the know take on it.

 

From another legal source :

 

"""One hurdle for the owners is that preliminary injunctions are reviewed very deferentially. Just a few months ago, the Eighth Circuit wrote,

 

“We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court.” . . . "An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.”

 

Rogers Group, Inc. v. City of Fayetteville, 629 F.3d 784, 787 (8th Cir. 2010) (citation omitted).

 

What does this mean as a practical matter? "Abuse of discretion" is a very hard standard to meet. To be reversed, Judge Nelson's decision would have to be so obviously wrong ("clearly erroneous") that it is implausible. Generally, appeals courts do not like to tell district courts that they have blatantly screwed up. This makes the climb that much steeper for the owners.""""

 

 

SO yea the Eight Circuit is going to give a lot of weight to Nelson's ruling. Its not simply whether or not she made factual determinations.

[Mr. WEO]

Would the lack of testimony qualify as leading to "erroneous legal conclusions"?

[CosmicBills]

Actually, the league is arguing that she did not have jurisdition to lift the blackout due to the pending decision on league's complaint filed with the NLRB regarding the decertification of the union.

Once again you make a post that offers nothing but restating what someone already said but yet find a way to argue against it. Do you ever read what you post before you post it? Please try offering something of substance to the conversation.

[K Gun Special]

Would the lack of testimony qualify as leading to "erroneous legal conclusions"?

 

Its a relatively new area of the law. The Eight Circuit is generally friendly to businesses but they must still abide by their own precedents. As stated in my previous post, it is a high burden to have a PI overturned.

The lack of testimony is not a big factor. Its really about the irreparable harm issue. Did the players show the harm would be so? She clearly thought so and the 8th would have to hold that was an abuse of discretion. I think its unlikely the 8th overturns bc 1) the law and (2) it forces the sides to negotiate. No side really wants the wild west (yes the players have made this argument somewhat, but they have to) so they will be forced to create a new CBA.

 

I know some of you are very pro owners or pro PA but you need to view this situation from the lens of the Court. The quicker the Court can put the ball back into the parties' hands the better for them.

[Peter]

No its not. I just showed you a lawyers in the know take on it.

 

From another legal source :

 

"""One hurdle for the owners is that preliminary injunctions are reviewed very deferentially. Just a few months ago, the Eighth Circuit wrote,

 

"We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court." . . . "An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions."

 

Rogers Group, Inc. v. City of Fayetteville, 629 F.3d 784, 787 (8th Cir. 2010) (citation omitted).

 

What does this mean as a practical matter? "Abuse of discretion" is a very hard standard to meet. To be reversed, Judge Nelson's decision would have to be so obviously wrong ("clearly erroneous") that it is implausible. Generally, appeals courts do not like to tell district courts that they have blatantly screwed up. This makes the climb that much steeper for the owners.""""

 

 

 

Supreme Court:

Pierce v. Underwood, 487 U.S. 552, 557-58 (1988)

 

" We first consider whether the Court of Appeals applied the correct standard when reviewing the District Court's determination that the Secretary's position was not substantially justified. For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo ), questions of fact (reviewable for clear error), and matters of discretion (reviewable for "abuse of discretion")."

 

 

 

First Circuit last month:

Milward v. Acuity Specialty Products Group, Inc., 2011 WL 982385, at *1 (1st Cir. March 22, 2011)

 

 

" The appellate standard of review for Rule 702 rulings is abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). "This standard is not monolithic: within it, embedded findings of fact are reviewed for clear error, questions of law are reviewed de novo, and judgment calls are subjected to classic abuse-of-discretion review." Ungar v. Palestine Liberation Org., 599 F.3d 79, 83 (1st Cir.2010)"

 

 

8th Circuit

 

Halbach v. Great-Wesst Life & Annuity Incs. Co., 561 F.3d 872, 877 n.3 (8th Cir. 2009)

 

"We note for clarification that we are applying a de novo standard of review because we are reviewing whether the affected welfare benefits were vested or not, an issue of contract; a question of law."

Edited April 27, 2011 by Peter

[papazoid]

Nelson denies NFL request for stay on ruling:

 

http://profootballtalk.nbcsports.com/2011/04/27/nelson-denies-nfl-request-for-stay-on-ruling/

 

 

 

NFL’s next move will be to seek a stay in appeals court:

 

http://profootballtalk.nbcsports.com/2011/04/27/nfls-next-move-will-be-to-seek-a-stay-in-appeals-court/

[K Gun Special]

Supreme Court:

Pierce v. Underwood, 487 U.S. 552, 557-58 (1988)

 

" We first consider whether the Court of Appeals applied the correct standard when reviewing the District Court's determination that the Secretary's position was not substantially justified. For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo ), questions of fact (reviewable for clear error), and matters of discretion (reviewable for "abuse of discretion")."

 

 

 

First Circuit last month:

Milward v. Acuity Specialty Products Group, Inc., 2011 WL 982385, at *1 (1st Cir. March 22, 2011)

 

 

" The appellate standard of review for Rule 702 rulings is abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). "This standard is not monolithic: within it, embedded findings of fact are reviewed for clear error, questions of law are reviewed de novo, and judgment calls are subjected to classic abuse-of-discretion review." Ungar v. Palestine Liberation Org., 599 F.3d 79, 83 (1st Cir.2010)"

 

 

8th Circuit

 

Halbach v. Great-Wesst Life & Annuity Incs. Co., 561 F.3d 872, 877 n.3 (8th Cir. 2009)

 

"We note for clarification that we are applying a de novo standard of review because we are reviewing whether the affected welfare benefits were vested or not, an issue of contract; a question of law."

 

 

Peter, did you see where i cited the 8th circuit reviewing a preliminary injunction issue?? Thats controlling, not the case law you cited dealing with non preliminary injunction issues. The article written by a sports lawyer says the same thing. Please dont cite and bold cases dealing with other issues..... welfare benefits???

 

a review of a preliminary injunction as shown by the 8th circuit last month says Abuse of Discretion.

[papazoid]

All eyes on the 8th Circuit

 

Adam Schefter of ESPN points out that the front page of the Eighth Circuit’s website already has been reconfigured to embrace its brand-new case.

 

“The court has docketed the National Football League’s appeal from Judge Susan Richard Nelson’s April 25, 2011 order enjoining the lockout,” the website states.

 

 

 

http://profootballta...he-8th-circuit/

[Peter]

Peter, did you see where i cited the 8th circuit reviewing a preliminary injunction issue?? Thats controlling, not the case law you cited dealing with non preliminary injunction issues. The article written by a sports lawyer says the same thing. Please dont cite and bold cases dealing with other issues..... welfare benefits???

 

a review of a preliminary injunction as shown by the 8th circuit last month says Abuse of Discretion.

 

You are missing the point again. The issue is whether the 8th Circuit views her decision of one of law, fact, or mixed question of law and fact -- regardless of whether it is in the context of an injunction or anything else. Appellate courts also can review different aspects of the lower court's ruling with different standards of review depending on the issue being reviewed. It is not as simple as you suggest.

 

Second Circuit

Donovan v. Bierwirth, 680 F.2d 263, 269-70 (2d Cir. 1982)

"Despite oft repeated statements that the issuance of a preliminary injunction rests in the discretion of the trial judge whose decisions will be reversed only for “abuse”, a court of appeals must reverse if the district court has proceeded on the basis of an erroneous view of the applicable law, Ring v. Spina, 148 F.2d 647, 650 (2 Cir. 1945); Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2 Cir. 1961); Douglas v. Beneficial Finance Co., 469 F.2d 453, 454 (9 Cir. 1972), or of the standards governing the granting or denial of interlocutory relief, Exxon Corp. v. New York, 480 F.2d 460, 464 (2 Cir. 1973); Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2 Cir. 1966). A line of cases in this circuit, apparently having its source in Dopp v. Franklin National Bank, 461 F.2d 873, 878-79 (1972), has gone beyond this and held that, even when the district court has not thus erred, where that court did not hear live witnesses, whose credibility played an essential part in its determination, and the case was decided on the basis of pleadings, affidavits and depositions, which the court of appeals is in as good a position as the district judge to read and interpret, the appellate court is not limited to reversal for abuse of discretion. The description of how far the limit is transcended has varied-the appellate court has “broader discretion on review”, Dopp, supra, 461 F.2d at 879;it is “able to exercise its discretion and to review the papers de novo ”, San Filippo v. United Brotherhood of Carpenters & Joiners, 525 F.2d 508, 511 (2 Cir. 1975); it “is not limited to reviewing the district court's exercise of discretion”, Forts v. Ward, 566 F.2d 849, 852 n.8 (2 Cir. 1977); it may exercise “full review”, Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2 Cir. 1979); *270 <a href="http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1980147460&referenceposition=701&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=24&vr=2.0&pbc=F4F4F55D&tc=-1&ordoc=1982123207" target="_top" style="color: rgb(0, 0, 255); ">Crouse-Hinds Co. v. Internorth, Inc., 634 F.2d 690, 701 n.19 (2 Cir. 1980); and it “may consider the record de novo”, at least when mandatory relief changing the status quo has been granted, Doe v. New York University, 666 F.2d 761, 765 (2 Cir. 1981). Two recent opinions have suggested that the use of the power to go beyond the “abuse of discretion” standard is itself discretionary, New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 750-53 (2 Cir. 1977); Vidal Sasson, Inc. v. Bristol-Myers Co., 661 F.2d 272, 276 n.9 (2 Cir. 1981), with the former suggesting some guidelines as to how the discretion should be exercised. Factors favorable to the exercise of appellate discretion to engage in full review are that interlocutory relief has been granted rather than denied, lack of specificity in the findings of the trial court, and “defects, apart from the findings themselves, in the district court proceedings, which this court apparently believed justified a broader review of the lower court's proceedings....”

Eighth Circuit

Entertainment Software Ass'n v. Swanson, 519 F.3d 768, 771 (8th Cir. 2008)

"We normally review for abuse of discretion a district court's grant of a permanent injunction.Qwest Corp. v. Scott, 380 F.3d 367, 370 (8th Cir.2004) (citing Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir.2003)). Where, as here, the “determinative question is purely legal, our review is more accurately characterized as de novo.” Id.; see also Ways v. City of Lincoln, Neb., 274 F.3d 514, 518 (8th Cir.2001)"

[papazoid]

Report: Owners get stay of injunction, lockout back on

 

 

ESPN is reporting that the U.S. Court of Appeals for the Eighth Circuit has granted a temporary stay of the injunction and reinstated the lockout, meaning players will now be told to hit the road, and doors to team facilities are being locked this afternoon.

 

 

 

http://profootballtalk.nbcsports.com/2011/04/29/report-owners-get-stay-of-injunction-lockout-back-on/

[Chandler#81]

Report: Owners get stay of injunction, lockout back on

 

 

ESPN is reporting that the U.S. Court of Appeals for the Eighth Circuit has granted a temporary stay of the injunction and reinstated the lockout, meaning players will now be told to hit the road, and doors to team facilities are being locked this afternoon.

 

 

 

http://profootballta...ockout-back-on/

 

 

Ridiculous!

[papazoid]

RETRACTION.....

 

Temporary stay expected, ESPN retracts report that stay was granted

 

 

http://profootballtalk.nbcsports.com/2011/04/29/temporary-stay-expected-espn-retracts-report-that-stay-was-granted/

[K Gun Special]

You are missing the point again. The issue is whether the 8th Circuit views her decision of one of law, fact, or mixed question of law and fact -- regardless of whether it is in the context of an injunction or anything else. Appellate courts also can review different aspects of the lower court's ruling with different standards of review depending on the issue being reviewed. It is not as simple as you suggest.

 

Second Circuit

Donovan v. Bierwirth, 680 F.2d 263, 269-70 (2d Cir. 1982)

"Despite oft repeated statements that the issuance of a preliminary injunction rests in the discretion of the trial judge whose decisions will be reversed only for “abuse”, a court of appeals must reverse if the district court has proceeded on the basis of an erroneous view of the applicable law, Ring v. Spina, 148 F.2d 647, 650 (2 Cir. 1945); Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2 Cir. 1961); Douglas v. Beneficial Finance Co., 469 F.2d 453, 454 (9 Cir. 1972), or of the standards governing the granting or denial of interlocutory relief, Exxon Corp. v. New York, 480 F.2d 460, 464 (2 Cir. 1973); Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2 Cir. 1966). A line of cases in this circuit, apparently having its source in Dopp v. Franklin National Bank, 461 F.2d 873, 878-79 (1972), has gone beyond this and held that, even when the district court has not thus erred, where that court did not hear live witnesses, whose credibility played an essential part in its determination, and the case was decided on the basis of pleadings, affidavits and depositions, which the court of appeals is in as good a position as the district judge to read and interpret, the appellate court is not limited to reversal for abuse of discretion. The description of how far the limit is transcended has varied-the appellate court has “broader discretion on review”, Dopp, supra, 461 F.2d at 879;it is “able to exercise its discretion and to review the papers de novo ”, San Filippo v. United Brotherhood of Carpenters & Joiners, 525 F.2d 508, 511 (2 Cir. 1975); it “is not limited to reviewing the district court's exercise of discretion”, Forts v. Ward, 566 F.2d 849, 852 n.8 (2 Cir. 1977); it may exercise “full review”, Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2 Cir. 1979); *270 <a href="http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1980147460&referenceposition=701&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=24&vr=2.0&pbc=F4F4F55D&tc=-1&ordoc=1982123207" target="_top" style="color: rgb(0, 0, 255); ">Crouse-Hinds Co. v. Internorth, Inc., 634 F.2d 690, 701 n.19 (2 Cir. 1980); and it “may consider the record de novo”, at least when mandatory relief changing the status quo has been granted, Doe v. New York University, 666 F.2d 761, 765 (2 Cir. 1981). Two recent opinions have suggested that the use of the power to go beyond the “abuse of discretion” standard is itself discretionary, New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 750-53 (2 Cir. 1977); Vidal Sasson, Inc. v. Bristol-Myers Co., 661 F.2d 272, 276 n.9 (2 Cir. 1981), with the former suggesting some guidelines as to how the discretion should be exercised. Factors favorable to the exercise of appellate discretion to engage in full review are that interlocutory relief has been granted rather than denied, lack of specificity in the findings of the trial court, and “defects, apart from the findings themselves, in the district court proceedings, which this court apparently believed justified a broader review of the lower court's proceedings....”

Eighth Circuit

Entertainment Software Ass'n v. Swanson, 519 F.3d 768, 771 (8th Cir. 2008)

"We normally review for abuse of discretion a district court's grant of a permanent injunction.Qwest Corp. v. Scott, 380 F.3d 367, 370 (8th Cir.2004) (citing Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir.2003)). Where, as here, the “determinative question is purely legal, our review is more accurately characterized as de novo.” Id.; see also Ways v. City of Lincoln, Neb., 274 F.3d 514, 518 (8th Cir.2001)"

 

 

Well 4 months ago the 8th circuit held re preliminary injunction not permanent " “We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court.” Vonage Holdings Corp. v. Neb. Pub. Serv. Comm'n, 564 F.3d 900, 904 (8th Cir.2009). “An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.""

Rogers, 629 f3d784

 

Based on Rogers it doesnt matter if there was an evidentiary determination or not. Its whether her conclusions of law or fact were clearly erroneous.

Abuse of discretion.

[papazoid]

it's official....

 

Appeals court restores NFL lockout

 

http://sports.espn.go.com/nfl/news/story?id=6451701

[papazoid]

NFL officially reinstates lockout. It only seems fitting in this insane offseason that this announcement would be made after 11 p.m. ET after day two of the NFL Draft. The league can’t let fans enjoy even one weekend.

 

http://profootballtalk.nbcsports.com/2011/04/29/nfl-officially-reinstates-lockout/

 

 

 

One judge wasn’t happy with temporary stay

 

http://profootballtalk.nbcsports.com/2011/04/30/one-judge-not-happy-with-temporary-stay/

[CosmicBills]

No real surprise ... though this probably isn't good foreshadowing for the Players. Or, it means nothing at all. Either way, it's just further proof of how poorly both sides have handled this issue. That they've let it spiral this far out of control is a testament to the stupidy of greed and arrogance.

 

This news has darkened what should have been a very bright weekend for the League and more importantly its fans.

 

Bummer.

[KRC]

No real surprise ... though this probably isn't good foreshadowing for the Players. Or, it means nothing at all. Either way, it's just further proof of how poorly both sides have handled this issue. That they've let it spiral this far out of control is a testament to the stupidy of greed and arrogance.

 

This news has darkened what should have been a very bright weekend for the League and more importantly its fans.

 

Bummer.

 

What is even more sad to me is that all of the money that is now going to lawyers could have been used to help retired players in need.

[papazoid]

Most importantly in the short term, Gans said that the same three judges who handled the NFL’s motion for a temporary stay will handle the motion for a full stay until the appeal is resolved.

 

http://profootballtalk.nbcsports.com/2011/05/02/the-same-judges-will-handle-the-motion-for-a-stay/

[Peter]

NFL's Reply in Support of Motion to Stay (in case any of you are interested)

 

 

Edited May 2, 2011 by Peter

[papazoid]

But the players still have an ace up their sleeve. His name is Judge David Doty.

 

 

Doty has to know that if he allows the owners to have even limited access to the $4 billion lockout fund, the players have no chance of standing up to the owners in the short run. They simply lack the funds to withstand a season without paychecks. However if Doty gives the players what they were seeking in damages -- which is as much as $2.8 billion ($707 million in compensatory damages, plus up to three times that in exemplary/punitive damages) -- it could sustain the players if there were no football in 2011.

 

Read more: http://sportsillustrated.cnn.com/2011/writers/jim_trotter/05/16/nfl.lockout.labor.talks/index.html#ixzz1MaG4V4Jt

Edited May 17, 2011 by papazoid

[papazoid]

meet Judge Nelson:

 

Susan Richard Nelson thought her future was going to be in music. An accomplished cellist, she performed with several orchestras in Buffalo as a young woman.

 

As it turned out, the Amherst native had a different calling......

 

 

http://www.buffalonews.com/sports/bills-nfl/article444822.ece

[papazoid]

MINNEAPOLIS -- As the labor battle between NFL owners and players moved from the bargaining table to the courtroom, judges at each stop have urged both sides to reach an agreement before they have to issue significant rulings.

 

The latest nudge in that direction came on Monday from U.S. District Judge Susan Richard Nelson, who scheduled a hearing on the owners' motion to dismiss an antitrust lawsuit from a group of players for Sept. 12.

 

Coincidentally or not, Sept. 12 is four days after the regular season is set to open in Green Bay, and one day after the first Sunday of games for the 2011 season.

 

http://sports.espn.go.com/nfl/news/story?id=6632662

[Mickey]

MINNEAPOLIS -- As the labor battle between NFL owners and players moved from the bargaining table to the courtroom, judges at each stop have urged both sides to reach an agreement before they have to issue significant rulings.

 

The latest nudge in that direction came on Monday from U.S. District Judge Susan Richard Nelson, who scheduled a hearing on the owners' motion to dismiss an antitrust lawsuit from a group of players for Sept. 12.

 

Coincidentally or not, Sept. 12 is four days after the regular season is set to open in Green Bay, and one day after the first Sunday of games for the 2011 season.

 

http://sports.espn.g...tory?id=6632662

I believe that date is also one day after the 6 month anniversary of the decertification. During oral argument last Friday in the Eighth Circuit, one of the judges kept harping on that date when arguing with Paul Clement, the NFL's atty because in the old CBA the league had agreed that the non-statutory exemption from the anti-trust laws would no longer be available 6 months after decertification. One of the weaknesses of the league's argument is that if you accept their view as to what constitutes a "labor dispute", the anti-trust exemption would be eternal, utterly without end. Clement agreed that the exemption could not be endless, that at some point it had to end. Thus, all agree that the exemption will end and the only question is when? That's when the old CBA came up and the 6 month period agreed to back then.

 

I have a feeling that the dissenting judge on the 8th Circuit is going to try and get the other two judges to at least agree to including language that would strongly hint that the injunction, though presently not valid, would become so in September. That would allow the league to continue to try to leverage the lockout in to a reasonable settlement but give the union leverage in negotiations by essentially setting a deadline on the lockout. Both sides then would have a strong incentive to get this done sooner rather than later. The league would want a deal before the lockout is enjoined and the players would want a deal done before they start missing camp and their September paychecks.

 

If the two judges driving the bus won't change their minds on the injunction and won't at least hint at the lockout having a time limit that is less than a whole season long, we could be in trouble. At that point, if the players can go a year without pay, they will. If they can't, then fine, a deal gets done but that is a coin flip and losing that flip means no football until September 2012. Not good. I think the players would, at the very least, wait to see what Judge Doty does with the hearing on damages in the other case still pending on what to do with that $4 billion in TV money. The outcome of that hearing might decide whether the players wait out the lockout which, sooner or later will surely end, the question, again, is simply: when?

 

 

 

[papazoid]

The NFL and players resumed what were described as "very serious talks" on Tuesday, according to sources, in an attempt to build off last week's secret negotiations in suburban Chicago, and work toward a resolution to end the three-month-old lockout.

 

The exact location of this set of talks remains unknown, though NFL Network insider Jason La Canfora reports they are taking place in the New York area. The NFL declined comment on the matter.

 

 

http://www.nfl.com/news/story/09000d5d820375bc/article/league-players-meet-voluntarily-for-second-straight-week?module=HP_headlines

[K Gun Special]

they just released a statement saying the talks are continuing.

[ICanSleepWhenI'mDead]

I believe that date is also one day after the 6 month anniversary of the decertification. During oral argument last Friday in the Eighth Circuit, one of the judges kept harping on that date when arguing with Paul Clement, the NFL's atty because in the old CBA the league had agreed that the non-statutory exemption from the anti-trust laws would no longer be available 6 months after decertification. One of the weaknesses of the league's argument is that if you accept their view as to what constitutes a "labor dispute", the anti-trust exemption would be eternal, utterly without end. Clement agreed that the exemption could not be endless, that at some point it had to end. Thus, all agree that the exemption will end and the only question is when? That's when the old CBA came up and the 6 month period agreed to back then.

 

I have a feeling that the dissenting judge on the 8th Circuit is going to try and get the other two judges to at least agree to including language that would strongly hint that the injunction, though presently not valid, would become so in September. That would allow the league to continue to try to leverage the lockout in to a reasonable settlement but give the union leverage in negotiations by essentially setting a deadline on the lockout. Both sides then would have a strong incentive to get this done sooner rather than later. The league would want a deal before the lockout is enjoined and the players would want a deal done before they start missing camp and their September paychecks.

 

If the two judges driving the bus won't change their minds on the injunction and won't at least hint at the lockout having a time limit that is less than a whole season long, we could be in trouble. At that point, if the players can go a year without pay, they will. If they can't, then fine, a deal gets done but that is a coin flip and losing that flip means no football until September 2012. Not good. I think the players would, at the very least, wait to see what Judge Doty does with the hearing on damages in the other case still pending on what to do with that $4 billion in TV money. The outcome of that hearing might decide whether the players wait out the lockout which, sooner or later will surely end, the question, again, is simply: when?

Interesting analysis and a well-reasoned attempt to make sense of the particular timing chosen by the MN trial judge for setting a hearing date on an NFL motion to dismiss the players' antitrust complaint. While the trial judge has discretion to change the otherwise applicable briefing schedule for that type of motion, it IS interesting that she picked a hearing date more than 90 days in the future. Because a motion to dismiss is a potentially "dispositive" motion, MN local court rule 7.1(b)(1) would have allowed Judge Nelson to set the hearing date as early as 42 days after the date the motion will be filed:

 

http://www.mnd.uscourts.gov/local_rules/LR-7-1.html

 

So why did Judge Nelson set the hearing date so far out into the future? Your explanation is entirely plausible, and may be right. It would be interesting to know if similar motions in other cases were being set for hearings that far in the future because the court simply has a crowded schedule, or if this case got unusual scheduling treatment. Hard to tell which it is from what I've read so far, but unusual treatment seems more likely.

 

I think there might be a potential downside for the players, however, resulting from the delayed hearing date on any NFL motion to dismiss the antitrust complaint.

 

There is at least some possibility that the forthcoming 8th Circuit opinion will accept the NFL's argument that the pending unfair labor practice charge before the NLRB is a threshold issue that should be decided before things go forward in Judge Nelson's court. In short, if the union's March 11, 2011 decertification was a sham, then the 6 month clock you mention never really started. If things play out that way in the 8th Circuit and the NLRB, the players could potentially have their entire antitrust complaint dismissed when Judge Nelson eventually considers the NFL's motion.

 

I'm not suggesting that this outcome is likely - - just that it's also possible.

 

I view that as a good thing. The players have an incentive to negotiate a global settlement, rather than awaiting future court decisions, because the scenario I outlined above could totally destroy the players' negotiating leverage. Likewise, the NFL also has an incentive to negotiate a global settlement, rather than awaiting future court decisions, because the scenario you outlined could decimate the owners' negotiating leverage.

 

Let's hope that both sides have a healthy fear of unknown, and therefore potentially detrimental future court decisions, and negotiate for a known outcome now. An effective mediator will hammer on those fears to try to get both sides to find middle ground.

===========================================================================

A few unrelated points:

 

1. I agree with your opinion (expressed elsewhere) that discovery of NFL finances will tend to move negotiations along. Do you know if formal discovery has been allowed to start in the trial court? IIRC, there was a dispute about when formal discovery should start, but I don't know if or how it was resolved.

 

2. The sooner one side or the other incurs significant financial hardship, the sooner a new CBA will get signed. I hope neither side gets access to the disputed TV contract money any time soon.

 

3. The following article seems to be a relatively neutral evaluation of the strengths and weaknesses of each side's positions just prior to the 8th Circuit oral argument:

 

http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1202495912122&hbxlogin=1

 

4. Here's a link to the NLRB's own flow chart (the first one) showing how an unfair labor practice charge is decided by the NLRB. I don't know the typical time frame for getting from (a) filing the initial charge to (b) getting an NLRB decision:

 

http://www.nlrb.gov/nlrb-process

Edited June 9, 2011 by ICanSleepWhenI'mDead

[DanInUticaTampa]

they just released a statement saying the talks are continuing.

 

until a deal is done, this "talking" seems more like lip service.

[ICanSleepWhenI'mDead]

Hearing date on NFL's motion to dismiss the players' antitrust complaint has been moved up two weeks - - - it will now be heard on August 29, 2011. Maybe Judge Nelson is giving herself 2 weeks to write the opinion so that she can actually issue it 6 months and 1 day after the suit was filed? - - Hard to know why she decided to move the hearing date up two weeks.

 

http://msn.foxsports.com/nfl/story/NFL-judge-moves-lawsuit-hearing-to-August-29-060711

[papazoid]

The NFL has asked owners to keep their schedules open next week, when the league holds meetings in Chicago, NFL Network reporter Albert Breer confirmed Tuesday.

 

The owners are scheduled to meet June 21, and the memo from the league asked for flexibility by the owners in case the meeting spills into Tuesday night or Wednesday. That has fueled speculation that perhaps the league and the NFL Players Association are making progress in their negotiations toward an agreement that would end the three-month-old lockout.

 

http://www.nfl.com/news/story/09000d5d82050114/article/sign-of-progress-owners-asked-to-clear-schedules-next-week?module=HP_headlines

[papazoid]

MINNEAPOLIS -- While NFL owners and players appear to be inching toward a resolution of the league's lengthy lockout, a group of retired players is clamoring to be more involved in the discussions.

 

The group filed a class-action complaint against the owners and current players in federal court Monday, saying they have been excluded from the mediation sessions taking place in an attempt to end the lockout.

 

 

Named plaintiffs including Hall of Famers Carl Eller, Franco Harris, Marcus Allen and Paul Krause are asking U.S. District Judge Susan Richard Nelson to put a halt to the mediation she ordered and declare that the current players cannot negotiate on behalf of those who are retired.

 

 

http://www.nfl.com/news/story/09000d5d8209c937/article/retired-players-ask-court-to-involve-them-more-in-labor-talks?module=HP_headlines

[papazoid]

NEW YORK (AP) — The 8th U.S. Circuit Court of Appeals on Friday threw out a judge's order lifting the NFL lockout, handing the league a victory as players and owners returned to negotiations.

 

The court vacated an April 25 decision by U.S. District Judge Susan Richard Nelson that the lockout should be lifted because players were suffering irreparable harm. The appeals court had already put that order on hold and said in its ruling that Nelson ignored federal law in reaching her decision.

 

http://news.yahoo.com/appeals-court-backs-lockout-tosses-judges-ruling-144417645.html

[Erik Flowers]

Looks like she booted that kick wide LEFT.

[BillsfaninFl]

So much for the statement that Judge Nelson will determine the fate of the NFL. Talk about pipe dreams.