Brady et al v. National Football League et al

Filing 103

MEMORANDUM in Support re 101 MOTION to Stay (Expedited) Pending Appeal filed by Arizona Cardinals, Inc., Atlanta Falcons Football Club LLC, Baltimore Ravens Limited Partnership, Buccaneers Limited Partnership, Buffalo Bills, Inc., Chicago Bears Football Club, Inc., Cinncinnati Bengals, Inc., Cleveland Browns LLC, Dallas Cowboys Football Club, Ltd., Denver Broncos Football Club, Detroit Lions, Inc., Football Northwest LLC, Green Bay Packers, Inc., Houston NFL Holdings LP, Indianapolis Colts, Inc., Jacksonville Jaguars Ltd., Kansas City Chiefs Football Club, Inc., Miami Dolphins, Ltd., Minnesota Vikings Football Club LLC, National Football League, New England Patriots, LP, New Orleans Louisiana Saints, LLC, New York Football Giants, Inc., New York Jets Football Club, Inc., Oakland Raiders LP, Panthers Football LLC, Philadelphia Eagles Football Club, Inc., Pittsburgh Steelers Sports, Inc., Rams Football Co, LLC, The, San Diego Chargers Football Co., San Francisco Forty Niners Ltd., Tennessee Football, Inc., Washington Football Inc. (Attachments: # 1 LR7.1 Word Count Compliance Certificate). (Connolly, Daniel) Modified text on 4/26/2011 (lmb).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
TOM BRADY, et al.,
Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE, et al.,
Defendants.

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) No. 0:11-cv-00639-SRN-JJG
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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ EXPEDITED
MOTION FOR A STAY PENDING APPEAL
On April 25, 2011, this Court granted plaintiffs’ motion for a
preliminary injunction and enjoined the lockout of the NFL players. (Dkt No.
99 (the “Order”).) The NFL and the NFL clubs request a stay of the Court’s
Order pending a ruling on appeal—which will be pursued on an expedited
basis—pursuant to Federal Rule of Civil Procedure 62(c). (The notice of
appeal has already been filed. See Dkt No. 100.)
All of the factors favoring a stay are present in this case: The NFL has
a reasonable prospect of success on the merits of its appeal, which presents
substantial and novel legal questions; the NFL will suffer irreparable harm
absent a stay; a stay for the limited period necessary to secure appellate
review will not substantially injure plaintiffs; and a stay is in the public
interest.

LEGAL STANDARD
“While an appeal is pending from an interlocutory order or final
judgment that grants, dissolves, or denies an injunction, the court may
suspend, modify, restore, or grant an injunction on terms for bond or other
terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(c); see also
Fed. R. App. P. 8 (party seeking a stay pending appeal should first make the
request in the district court).
Courts look to the following four factors in determining whether to stay
an injunction pending appeal:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Jake’s Ltd. v. City of
Coates, 169 F. Supp. 2d 1014, 1017 (D. Minn. 2001).
A district court considering a stay motion will seldom, if ever, believe
that it is likely that the movant will prevail on appeal; the court ordinarily
assumes that the appellate court will agree with its own ruling. But that
does not mean that stays are or should be rarely granted. Instead, “district
courts properly stay their own orders when they have ruled on an admittedly
difficult legal question and when the equities of the case suggest that the

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status quo should be maintained.” Protect Our Water v. Flowers, 377 F.
Supp. 2d 882, 884 (E.D. Cal. 2004). Accord, e.g., Exxon Corp. v. Esso

Worker’s Union, 963 F. Supp. 58, 60 (D. Mass. 1997); Jock v. Sterling, 738 F.
Supp. 2d 445, 447 (S.D.N.Y. 2010). In such a case, the “likelihood of success”
factor is satisfied “when the ‘question presented ... is not wholly without
doubt.’” Lakehead Pipe Line Co. v. Investment Advisors, Inc., 900 F. Supp.
234, 235 (D. Minn. 1995) (quoting In re Worker’s Compensation Refund, 851
F. Supp. 1399, 1401 (D. Minn. 1994)) (alteration in original).
Moreover, while the equities balanced by the court are similar for
purposes of a preliminary injunction and a stay pending appeal, there is an
important difference of timing. In considering a preliminary injunction, the
District Court analyzes irreparable injury and the equities over the period
necessary to adjudicate the case to final judgment. In staying a preliminary
injunction, by contrast, the question is whether to preserve the status quo for
only the brief period needed for expedited appellate review. Here, disruption
to the status quo (the lockout) for the short period needed for expedited
appellate review (during the offseason) would cause irreparable harm to the
League but not the players, who did not even seek a temporary restraining
order. And a stay pending appeal would afford the Eighth Circuit the same
opportunity to review the merits, without altering the status quo, that this
Court was afforded in considering the preliminary injunction motion.
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ARGUMENT
For the reasons set forth in the Opposition to Plaintiffs’ Motion for a
Preliminary Injunction (“Opp.”) (Dkt No. 34), the NFL and its member clubs
have a strong likelihood of success on the merits of their appeal. But, even if
the Court disagrees, there can be no reasonable dispute that the Court’s
Order enjoining the lockout involves substantial and novel legal questions
related to the anti-injunction provisions of the Norris-LaGuardia Act (Opp. 916), the doctrine of primary jurisdiction (id. 17-27), and the outer boundaries
of the nonstatutory labor exemption to the antitrust laws (id. 28-42).
On any and all of these issues, it is “not wholly without doubt” that the
Eighth Circuit will reach a conclusion different from that of this Court about
the propriety of the injunction. In re Worker’s Compensation Refund, 851 F.
Supp. at 1401. 1 The reasonable possibility that the NFL will prevail on
appeal weighs sharply in favor of granting a stay.

The Eighth Circuit should review de novo the applicability of (i) the NorrisLaGuardia Act; (ii) the primary jurisdiction doctrine; and (iii) the
applicability of the nonstatutory labor exemption. See, e.g., Heartland
Academy Cmty. Church v. Waddle, 335 F.3d 684, 689-90 (8th Cir. 2003) (legal
conclusions underlying preliminary injunctions reviewed de novo); Burlington
N. Santa Fe Ry. Co. v. Int’l Bhd. of Teamsters Local, 203 F.3d 703, 707 (9th
Cir. 2000) (“The existence of a ‘labor dispute’ within the meaning of the
Norris-LaGuardia Act is … a question of law that we review de novo.”);
United States v. Rice, 605 F.3d 473, 475 (8th Cir. 2010) (“We review the issue
of primary jurisdiction de novo.”).
1

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The balance of the equities also favors a stay. The NFL will ask the
Eighth Circuit to consider its appeal on an expedited basis, and Section 10 of
the Norris-LaGuardia Act requires the Court of Appeals to consider the
appeal “expeditiously.” 29 U.S.C. § 110. It is likely that the Eighth Circuit
would be able to hear the appeal no later than early June. Staying the Order
pending expedited appellate consideration poses little risk of irreparable
harm to the plaintiffs during the off-season, when there will be no
competition on the football field.
But failing to stay the injunction—even for the brief period of time until
it is taken up on appeal—would irreparably harm the NFL. The clubs would
be forced to choose between the irreparable harm of unrestricted free agency
or the irreparable harm of more treble-damages lawsuits, and the League
would face those harms immediately, even if the preliminary injunction were
in place only for a few days. Finally, granting the stay will serve the public
interest by ensuring an opportunity for appellate review before there are
fundamental and irreversible changes in the relationships between and
among the parties.
A.

At the very least, this case presents substantial
and novel legal questions that merit a stay.

This case raises several “substantial and novel legal questions”
regarding both this Court’s jurisdiction and the contours of the nonstatutory

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labor exemption. Accordingly, the NFL need show only that the questions
presented by its appeal are “not wholly without doubt.” In re Worker’s

Compensation Refund, 851 F. Supp. at 1401. The NFL easily meets this
threshold.

First, it is “not wholly without doubt” that, because of the NorrisLaGuardia Act, the Court lacked jurisdiction to issue the Order. No court
had ever before entered an injunction barring a lockout (except for one court
whose injunction was dissolved on appeal.) Consistent with the Act’s plain
language, a number of other courts have held that the Act bars antitrust
injunctions against lockouts, and that its protections are not tied to the
existence of a union. (See Opp. 9-16.).
The Court concluded that it was “not convinced” that the NorrisLaGuardia Act applies here because of the NFLPA’s disclaimer. (Order 61.)
It is “not wholly without doubt” that the Eighth Circuit will agree. The Court
determined that there is no “temporal gloss” on the Act’s definition of a “labor
dispute,” (Order 58), but the Act expressly applies not just to cases involving
labor disputes, but to cases “growing out of” them, 29 U.S.C. § 104, providing
an express temporal connection.
The Court also concluded that it was “not convinced that the NorrisLaGuardia Act applies, absent the present existence of a union, so as to
prohibit or condition injunctions.” (Order 61.) But the Supreme Court has
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already held that the Act applies to a dispute between employees and
employers in which no union at all was involved. See New Negro Alliance v.

Sanitary Grocery Co., 303 U.S. 552, 561 (1938). And the plain language of
the Act defines a labor dispute as one that includes a controversy over terms
or conditions of employment that “involves persons who are engaged in the
same industry, trade, craft or occupation” and is “between one or more
employers … and one or more employees.” 29 U.S.C. § 113(a). In addition,
the fact that the Act expressly defines persons “participating or interested in
a labor dispute” to include both employers and employees, id. § 113(b),
indicates that the Court’s skepticism about whether Section 4 of the Act can
apply to lockouts may be misplaced.

Second, it is “not wholly without doubt” that the Court’s Order intrudes
upon the primary jurisdiction of the National Labor Relations Board, which is
already conducting proceedings addressing threshold questions for this case
regarding the validity of the Union’s disclaimer of interest. (See Opp. 17-27.)
The Court relied primarily on Judge Doty’s decision in McNeil (sub nom.

Powell) v. NFL, 764 F. Supp. 1351, 1358-59 (D. Minn. 1991). But Judge Doty
recognized that his decision presented a “controlling question of law on which

there is substantial ground for difference of opinion.” Id. at 1360 (emphasis

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added). That easily meets the “not wholly without doubt” standard for
issuance of a stay. 2

Third, it is “not wholly without doubt” that the challenged lockout is
“sufficiently distant in time and in circumstances from the collectivebargaining process that a rule permitting antitrust intervention would not
significantly interfere with that process.” Brown v. Pro Football, Inc., 518
U.S. 231, 250 (1996). (See Opp. 28-42.) What constitutes “sufficient[]
distan[ce] in time and in circumstances” is an issue that the Supreme Court
expressly reserved in Brown, see id., and no court since has attempted to
answer that question in circumstances such as those presented here—where
a union has purported to disclaim representation—or in any other
circumstances.
The Court indicated that it did not believe the views of the NLRB were
relevant or essential after a union purports to decertify. (Order 44-45 &
n.31.) But the Eighth Circuit may disagree, particularly in light of the
Supreme Court’s statement in Brown that, in the situation of a collapse of the
The Court also relied on a Board Division of Advice memorandum in
Pittsburgh Steelers. But such memoranda are not binding Board precedent;
for example, the Court of Appeals for the District of Columbia Circuit has
“reject[ed] out of hand [the] suggestion that [a Board decision] is
unreasonable because it conflicts with a memorandum issued by the General
Counsel’s Division of Advice ….” Chelsea Indus., Inc. v. NLRB, 285 F.3d
1073, 1077 (D.C. Cir. 2002).
2

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collective-bargaining relationship as evidenced by the decertification of a
union, the Court would desire “the detailed views of the Board, to whose
specialized judgment Congress intended to leave many of the inevitable
questions concerning multiemployer bargaining bound to arise in the future”
on “whether or where” to draw the line permitting an antitrust claim. 531
U.S. at 250 (internal quotations omitted).
In short, by enjoining the lockout, this Court has, at the very least,
created new law on at least three issues of substantial importance, all of
which the Eighth Circuit will review de novo. If the Eighth Circuit were to
disagree with this Court on any of these points, it would come to a different
conclusion about the appropriate ruling on the preliminary injunction motion.

See Jake’s Ltd., 169 F. Supp. 2d. at 1018 (granting a stay when “[t]he Court
stands by its earlier decision, yet recognizes the possibility that the Eighth
Circuit could disagree”).
B.

The NFL will suffer irreparable harm if a stay is not granted.

Absent a stay, the NFL will suffer irreparable harm even during the
relatively short period of time necessary for this case to be considered on
appeal.
To begin, if the Eighth Circuit disagrees with the Court’s conclusions,
in the absence of a stay the Order would irreparably alter the balance of
economic power in the bargaining process and irreparably harm the League
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and the clubs by depriving the NFL of its labor law right to lock out. See,

e.g., Brown, 518 U.S. at 245 (“Labor law permits employers … to engage in
considerable joint behavior, including joint lockouts ... .”); NLRB v. Ins.

Agents’ Int’l Union, 361 U.S. 477, 497 (1960); Inter-Collegiate Press v. NLRB,
486 F.2d 837, 846 (8th Cir. 1973).
The same considerations that led to the passage of the NorrisLaGuardia Act—a concern about the power of the federal judiciary
“destroying the momentum” of a work stoppage “before substantive legal
rights were litigated”—are implicated by the enjoining of the lockout. (Order
50 (internal quotation and citation omitted).)
Unless this Court’s Order is stayed, the League and its clubs will also
suffer irreparable harm because it will not be possible to unscramble the eggs
and restore the parties to the status quo ante (a) if the Eighth Circuit were to
disagree that a preliminary injunction should have issued and/or (b) if the
NLRB were to determine that the NFLPA has bargained in bad faith and
contravened the National Labor Relations Act in purporting to disclaim a role
in bargaining.
The NFL would also face irreparable harm whether it (a) gave in to the
players’ demands for unrestricted free agency (which would undermine the
competitive balance essential to the appeal of the League’s on-field product);
(b) continued with the rules in effect last year (which the complaint
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challenges as anti-competitive under the same theory underlying the players’
challenge to the lockout); or (c) imposed an alternative set of rules for the
players to challenge as unreasonable restraints of trade.
This Court has already recognized that unrestricted free agency would
cause irreparable harm to the NFL. See Powell v. NFL, 690 F. Supp. 812 (D.
Minn. 1988) (denying a preliminary injunction sought by the plaintiff-players
that would have resulted in unrestricted free agency for veteran NFL
players). Recognizing “that a significant percentage of the unsigned players
would move to new teams,” this Court concluded that “it is highly probable
that an injunction creating unrestricted free agency would irreparably harm
the owners and have a deleterious effect upon professional football
generally.” Id. at 816. The Court explained that:
[T]he players’ insistence upon complete, unrestricted freedom of
movement from club to club “ignores the structured nature of any
professional sport based on league competition. Precise and
detailed rules must of necessity govern how the sport is played,
the rules of the game, and the acquisition, number, and
engagement of players. While some freedom of movement after
playing out a contract is in order, complete freedom of movement
would result in the best franchises acquiring most of the top
players. Some leveling and balancing rules appear necessary to
keep the various teams on a competitive basis, without which
public interest in any sport quickly fades.”

Id. (quoting Reynolds v. NFL, 584 F.2d 280, 287 (8th Cir. 1978)). The Court
observed that “although the requested injunction would only be ‘preliminary’
pending final resolution of this matter, its effects may be felt for years since
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many players who moved undoubtedly would sign long-term contracts with
their new clubs.” Id.
Given that the Order in this case may entail the start of a free-agent
signing period in the NFL—a period in which any structure or set of rules,
even an agreement among the member clubs on the number of games that
should make up a season, is subject to antitrust challenge—the logic of

Powell applies equally if not with more force here. See Brown, 518 U.S. at
248-249 (“[T]he clubs that make up a professional sports league are not
completely independent economic competitors, as they depend upon a degree
of cooperation for economic survival.”). But the clubs’ agreement to common
terms and conditions of player employment would expose the NFL and the
member clubs to antitrust challenge for doing the things necessary to present
their collective product in a manner responsive to consumer demand.
Even if this Court considered that to be a reasonable burden over the
course of this entire litigation, it would be unduly disruptive—and have
excessively far-reaching consequences—to impose it before the brief period of
weeks necessary for expedited appellate review.
C.

A stay pending appeal would not irreparably harm plaintiffs.

The lack of any harm that was both immediate and irreparable is
presumably what caused the plaintiffs not to seek a temporary restraining
order. A stay pending an expedited appeal of the Order would afford the
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Court of Appeals the same opportunity that this Court enjoyed because of the
absence of a request for a TRO—the ability to consider the merits of the
preliminary injunction question without an irreparable alteration of the
status quo ante.
It is the NFL offseason. (Ruocco Decl. ¶10.) Training camps and
games do not begin for several more months, so no player stands to lose the
opportunity to compete. (Id.) Thus, staying the Order pending expedited
appeal will not cause the plaintiffs to lose playing time or any material
irreparable harm during the short interval at issue.
As to the harm to players in the delay in the ability to sign contracts, a
short delay pending expedited appeal pales in comparison to the irreparable
harm to the NFL’s labor law rights that the Order would create in the event
that the Eighth Circuit disagrees with the Court’s legal analysis. And
plaintiffs have their claims for treble damages, which are more than
adequate to make them whole for any injury incurred during the expedited
appellate proceedings. See, e,g., Rittmiller v. Blex Oil, Inc., 624 F.2d 857, 861
(8th Cir. 1980); see also Sampson v. Murray, 415 U.S. 61, 90 (1974) (“The
temporary loss of income, ultimately to be recovered, does not usually
constitute irreparable injury.”).

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D.

The public interest favors granting a stay.

The Court has indicated its belief that the labor laws no longer apply to
the terms and conditions of employment in the NFL. The Eighth Circuit
and/or the Board may disagree. For purposes of this Motion, the strong
public interest in encouraging collective bargaining and the collective
bargaining process favor granting a stay pending expedited appellate
review. 3
CONCLUSION
For the foregoing reasons, the Court should stay its Order pending
appeal.

If the Order is not stayed, the NFL reserves the right to seek an order
requiring plaintiffs to post a bond. “The court may issue a preliminary
injunction … only if the movant gives security in an amount that the court
considers proper to pay the costs and damages sustained by any party found
to have been wrongfully enjoined or restrained." Fed. R. Civ. P. 65(c); see
11A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §
2954 (2d ed. & supp. 2010) (“[T]he rule is phrased in mandatory terms and
the conclusion seems inescapable that once the court decides to grant
equitable relief under Rule 65 it must require security from the applicant.”).
The complexity of valuing the required bond is yet another reason warranting
a stay pending expedited appellate review.
3

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Respectfully submitted,
David Boies (pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, NY 10504
[phone]
[phone] (fax)

William A. Isaacson (pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
5301 Wisconsin Ave., NW
Washington, DC 20015
[phone]
[phone] (fax)

April 25, 2011

s/Daniel J. Connolly
Daniel J. Connolly #197247
Aaron D. Van Oort #315539
FAEGRE & BENSON LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-3901
[phone]
[phone] (fax)
Gregg H. Levy (pro hac vice)
Benjamin C. Block (pro hac vice)
COVINGTON & BURLING LLP
1201 Pennsylvania Ave., NW
Washington, DC 20004-2401
[phone]
[phone] (fax)

Counsel for the NFL and NFL Clubs

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