Brady et al v. National Football League et al
Filing
122
ORDER of USCA as to 100 Notice of Appeal to 8th Circuit, : For the reasons that follow, we now grant the League's motion for stay pending appeal. (received electronically from COA) (jam)
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1898
___________
Tom Brady; Drew Brees; Vincent
Jackson; Ben Leber; Logan Mankins;
Peyton Manning; Von Miller; Brian
Robison; Osi Umenyiora; Mike Vrabel;
Carl Eller; Priest Holmes; Obafemi
Ayanbadejo; Ryan Collins; Antawan
Walker, individually, and on behalf of
all others similarly situated,
*
*
*
*
*
*
*
*
*
Appellees,
*
*
v.
*
*
National Football League; Arizona
*
Cardinals Football Club, LLC; Atlanta *
Falcons Football Club, LLC; Baltimore *
Ravens Limited Partnership; Buffalo
*
Bills, Inc.; Panthers Football, LLC;
*
The Chicago Bears Football Club, Inc.; *
Cincinnati Bengals, Inc.; Cleveland
*
Browns Football Company LLC;
*
Dallas Cowboys Football Club, Ltd;
*
PDB Sports, Ltd., doing business as The *
Denver Broncos Football Club, Ltd.;
*
The Detroit Lions, Inc.; Green Bay
*
Packers, Inc.; Houston NFL Holdings, *
L.P.; Indianapolis Colts, Inc.;
*
Jacksonville Jaguars, Ltd.; Kansas City *
Chiefs Football Club, Inc.; Miami
*
Dolphins, Ltd.; Minnesota Vikings
*
Football, LLC; New England Patriots *
L.P.; New Orleans Louisiana Saints,
*
Appellate Case: 11-1898
Page: 1
Appeal from the United States
District Court for the
District of Minnesota.
Date Filed: 05/16/2011 Entry ID: 3788031
L.L.C.; New York Football Giants, Inc.; *
New York Jets LLC; The Oakland
*
Raiders, L.P.; Philadelphia Eagles,
*
LLC; Pittsburgh Steelers LLC; The St. *
Louis Rams LLC; Chargers Football
*
Company, LLC; San Francisco Forty
*
Niners, Limited; Football Northwest
*
LLC; Buccaneers Limited Partnership; *
Tennessee Football, Inc.; Pro-Football, *
Inc.,
*
*
Appellants.
*
___________
Submitted: May 2, 2011
Filed: May 16, 2011
___________
Before BYE, COLLOTON, and BENTON, Circuit Judges.
___________
PER CURIAM.
This is an appeal by the National Football League and 32 separately-owned
NFL teams (collectively the “NFL” or the “League”) from an order of the district
court issuing an injunction that prohibits the League from continuing to impose a
“lockout” of NFL players. Brady v. NFL, No. 11-639, 2011 WL 1535240 (D. Minn.
Apr. 25, 2011). The named plaintiffs (the “Players”) are nine professional football
players and one prospective player who brought an action on behalf of themselves and
similarly situated players, alleging that the lockout is a “group boycott” that violates
the federal antitrust laws and state contract and tort law. On April 25, 2011, the
district court entered an order declaring that “the ‘lockout’ is enjoined.” Two days
later, the court denied the League’s motion for a stay of the order pending appeal.
Brady v. NFL, No. 11-639, 2011 WL 1578580 (D. Minn. Apr. 27, 2011).
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The League filed a notice of appeal, moved in this court for a stay of the district
court’s order pending appeal, and sought expedited hearing of the appeal. On April
29, 2011, we granted a temporary administrative stay of the district court’s order to
allow the court sufficient opportunity to consider the merits of the motion for stay
pending appeal. On May 3, 2011, we granted the League’s motion to expedite the
appeal, established a briefing schedule, and designated June 3, 2011, as the date for
oral argument and submission of the case. For the reasons that follow, we now grant
the League’s motion for stay pending appeal.
I.
There is a long history of litigation between the NFL and professional football
players, much of which is described in prior opinions of this court and the district
court. See, e.g., White v. NFL, 585 F.3d 1129 (8th Cir. 2009); White v. NFL, 41 F.3d
402 (8th Cir. 1994); Powell v. NFL, 930 F.2d 1293 (8th Cir. 1989); Mackey v. NFL,
543 F.2d 606 (8th Cir. 1976). For purposes of resolving this motion, an abbreviated
summary of the more recent history will suffice. In 1992, a jury rendered a verdict in
favor of several players, determining that the League’s limits on the ability of players
to move from team to team after their contracts expire violated Section 1 of the
Sherman Antitrust Act. McNeil v. NFL, 1992 WL 315292, at *1 (D. Minn. Sept. 10,
1992). Shortly thereafter, several players brought another antitrust action seeking to
prevent the League from imposing any restrictions on the movement of players whose
contracts expired on February 1, 1993. White v. NFL, 822 F. Supp. 1389, 1395 (D.
Minn. 1993). In February 1993, the League and a class of NFL players entered into
a Stipulation and Settlement Agreement to resolve that litigation. The settlement
agreement provided that the district court would retain jurisdiction over enforcement
of the agreement. See White v. NFL, 836 F. Supp. 1458, 1473 (D. Minn. 1993).
Later that year, the National Football League Players Association (“NFLPA”),
as the exclusive collective bargaining representative of the NFL players, and the NFL
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Management Council, the multi-employer bargaining unit of the NFL owners, reached
a new collective bargaining agreement. The agreement was amended and extended
several times, and each time, the enforcement jurisdiction of the district court was
retained as part of the agreement. White, 585 F.3d at 1134. In May 2008, however,
the NFL exercised its right to opt out of the last two years of the most recent
agreement, and both the settlement agreement and the collective bargaining agreement
were thus due to expire at 11:59 p.m. on March 11, 2011.
For two years prior to the expiration of the agreements, the Players and the
League engaged in negotiations over a new collective bargaining agreement, but they
did not resolve their differences. As the expiration date approached, the League
indicated that it might use a lockout of the players as a tactic in the bargaining process.
See Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 301-02 (1965). The Players then
determined that it would not be in their interest to remain unionized, because the
existence of the union would “allow the NFL to impose anticompetitive restrictions
with impunity,” Compl. ¶ 54, so they took steps to terminate the NFLPA’s status as
their collective bargaining agent as of 4:00 p.m. on March 11. The NFLPA notified
the League that as of 4:00 p.m. on March 11, it disclaimed any interest in representing
the Players in further negotiations.
Also on March 11, the Players filed their complaint in this action, alleging that
the lockout threatened by the League would violate the federal antitrust laws and state
contract and tort law. Among other relief, the Players sought a preliminary injunction
that would prohibit the League from imposing or continuing the lockout.
On March 12, the League imposed a lockout of the Players. At that point, the
League notified players under contract that, among other things, they were not
permitted to enter team facilities except in connection with a non-team event or a
charitable event, they would not receive compensation or health insurance benefits
from their teams, and they were not permitted to play, practice, workout, attend
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meetings, or consult with team medical or training staff at team facilities. The League
also filed an amended unfair labor practice charge with the National Labor Relations
Board on March 11, alleging that the NFLPA’s disclaimer was a “sham” and that the
combination of a disclaimer by the union and subsequent antitrust litigation was a
“ploy and an unlawful subversion of the collective bargaining process.” The League
had filed a previous charge in February 2011, alleging that the union failed to confer
in good faith during negotiations over a new collective bargaining agreement.
After receiving briefs and affidavits from the parties and hearing oral argument
from counsel, the district court entered an order that enjoined the lockout. The court
rejected the League’s argument that a federal statute, the Norris-LaGuardia Act, 29
U.S.C. § 101, et. seq., deprived the court of jurisdiction to grant injunctive relief,
because the court concluded that this is not a case “involving or growing out of a labor
dispute” as defined by the Act. The court also rejected the League’s position that it
should stay the case, under the doctrine of primary jurisdiction, see Reiter v. Cooper,
507 U.S. 258, 268-69 (1993), pending a decision by the National Labor Relations
Board on the League’s unfair labor practice charges. The court determined that the
Players had demonstrated that they were suffering, and would continue to suffer,
irreparable harm as a result of the lockout, that the harm to the Players outweighed
any harm an injunction would cause the NFL, and that the Players had a fair chance
of success on the merits of their lawsuit. On the merits, the court concluded that the
non-statutory labor exemption from antitrust liability, see Brown v. Pro Football, Inc.,
518 U.S. 231 (1996), does not extend “to protect the labor negotiation tool of a
‘lockout,’ as opposed to a mandatory term of collective bargaining, after a union has
disclaimed any further representation of its members.” Brady, 2011 WL 1535240, at
*36. For these reasons, the court entered the preliminary injunction.
II.
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Federal Rule of Appellate Procedure 8(a) governs the power of a court of
appeals to stay an order of a district court pending appeal. Under that Rule, we
consider four factors in determining whether to issue a stay: “(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).
The most important factor is the appellant’s likelihood of success on the merits.
Shrink Mo. Gov. PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998); S & M
Constructors, Inc. v. The Foley Co., 959 F.2d 97, 98 (8th Cir. 1992). The movant
must show that it will suffer irreparable injury unless a stay is granted. Packard
Elevator v. ICC, 782 F.2d 112, 115 (8th Cir. 1986); cf. James River Flood Control
Ass’n v. Watt, 680 F.2d 543, 544 (8th Cir. 1982) (per curiam) (granting stay pending
appeal after determining that “it appears that the United States may suffer irreparable
injury unless this court grants the stay”). Ultimately, we must consider the relative
strength of the four factors, “balancing them all.” Fargo Women’s Health Org. v.
Schafer, 18 F.3d 526, 538 (8th Cir. 1994) (appendix); see also Va. Petroleum Jobbers
Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam)
(“[I]njury held insufficient to justify a stay in one case may well be sufficient to justify
it in another, where the applicant has demonstrated a higher probability of success on
the merits.”); Developments in the Law, Injunctions, 78 Harv. L. Rev. 994, 1056
(1965) (“Clear evidence of irreparable injury should result in a less stringent
requirement of certainty of victory; greater certainty of victory should result in a less
stringent requirement of proof of irreparable injury.”), quoted in Roland Machinery
Co. v. Dresser Indus., Inc., 749 F.2d 380, 388 (7th Cir. 1984).
We consider first the League’s likelihood of success on the merits. We do not
make a final determination on the merits, but consideration of likely success is
unavoidable, for the governing standard “compels us to embark upon such an
exercise.” Fargo Women’s Health Org., 18 F.3d at 538.
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The Norris-LaGuardia Act limits the jurisdiction of a district court to issue an
injunction “in a case involving or growing out of a labor dispute.” 29 U.S.C. § 101.
The district court ruled that the Act does not apply here and that it had jurisdiction to
enjoin the lockout.
Congress wrote the Act in broad language, in order to take the federal courts
“‘out of the labor injunction business.’” Jacksonville Bulk Terminals, Inc. v. Int’l
Longshoremen’s Ass’n, 457 U.S. 702, 712 (1982) (emphasis omitted) (quoting Marine
Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 369 (1960)). “No court of the
United States shall have jurisdiction to issue any . . . temporary or permanent
injunction in any case involving or growing out of a labor dispute to prohibit any
person or persons participating or interested in such dispute . . . from doing, whether
singly or in concert,” any of several acts. 29 U.S.C. § 104. One of these acts is
“refusing . . . to remain in any relation of employment.” 29 U.S.C. § 104(a).
Congress’s definition of a “labor dispute” is expansive: “The term ‘labor
dispute’ includes any controversy concerning terms or conditions of employment, or
concerning the association or representation of persons in . . . seeking to arrange terms
or conditions of employment, regardless of whether or not the disputants stand in the
proximate relation of employer and employee.” 29 U.S.C. § 113(c). “Congress made
the definition broad because it wanted it to be broad.” Telegraphers v. Chi. & N.W.
R.R. Co., 362 U.S. 330, 335-36 (1960); see Jacksonville Bulk Terminals, 457 U.S. at
712 (observing that “the statutory definition itself is extremely broad”).
Congress also explicitly stated the meaning of “involving or growing out of”
a labor dispute. “A case shall be held to involve or grow out of a labor dispute when
the case involves persons who are engaged in the same industry, trade, craft, or
occupation . . . .” 29 U.S.C. § 113(a). Congress described categories of such disputes
in sweeping terms: “[W]hether such dispute is (1) between one or more employers
or associations of employers and one or more employees or associations of
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employees; . . . or when the case involves any conflicting or competing interests in a
‘labor dispute’ [as defined in section 113(c) quoted above] of ‘persons participating
or interested’ therein.” Id. A person or association is
participating or interested in a labor dispute if relief is sought against him
or it, and if he or it . . . is a member . . . of any association composed in
whole or in part of employers or employees engaged in [the same]
industry, trade, craft, or occupation [in which such dispute occurs].
29 U.S.C. § 113(b).
The district court apparently did not question that this case is a “controversy
concerning the terms and conditions of employment.” 29 U.S.C. § 113(c). The
complaint seeks relief concerning such terms and conditions, and the lawsuit was filed
on the same day that the Players’ union discontinued long-term collective bargaining
over terms and conditions of employment. The Players argued in the district court that
the Norris-LaGuardia Act does not preclude a court from enjoining a group boycott,
citing Boise Cascade International, Inc. v. Northern Minnesota Pulpwood Producers
Ass’n, 294 F. Supp. 1015 (D. Minn. 1968). The district court rejected the Players’
argument, because the dispute enjoined in Boise Cascade “was not a controversy over
the terms and conditions of employment, but a dispute over the sale of commodities
. . . . Each of the cases [cited in Boise Cascade] rejected application of the NorrisLaGuardia Act because the disputes did not concern labor, but the sale of goods.”
Brady, 2011 WL 1535240, at *24 n.44.
The district court reasoned that this case does not involve or grow out of a labor
dispute because the Players no longer are represented by a union. See id. at *24. We
have considerable doubt about this interpretation of the Act. The plain language of
the Act states that a case involves or grows out of a labor dispute when it is “between
one or more employers or associations of employers and one or more employees or
associations of employees.” 29 U.S.C. § 113(a)(1) (emphasis added). The Act does
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not specify that the employees must be members of a union for the case to involve or
grow out of a labor dispute.
The Supreme Court decision most closely on point did not limit the Act to
disputes involving a union. In New Negro Alliance v. Sanitary Grocery Co., 303 U.S.
552 (1938), a company sought an injunction against the New Negro Alliance, “a
corporation composed of colored persons, organized for the mutual improvement of
its members and the promotion of civic, educational, benevolent, and charitable
enterprises.” 303 U.S. at 555. The Alliance allegedly had conspired to picket and
boycott one of the company’s grocery stores to pressure the store to employ AfricanAmerican clerks. The company claimed, among other things, that the Alliance’s acts
were “unlawful, [and] constitute[d] a conspiracy in restraint of trade.” Id. at 558-59.
The district court granted an injunction against the Alliance. The court of appeals
affirmed, specifically holding the Norris-LaGuardia Act inapplicable. See 92 F.2d
510, 512-13 (D.C. Cir. 1937).
The Supreme Court reversed. Although no labor organization was involved in
the dispute, the Court ruled that the definitions in the Act “plainly embrace the
controversy which gave rise to the instant suit and classify it as one arising out of a
dispute defined as a labor dispute.” 303 U.S. at 560. The Court viewed the dispute
as one involving “conflicting or competing interests in a ‘labor dispute’ of ‘persons
participating or interested’ therein,” id., and further indicated that the Act also
embraces controversies “between employers and employees,” as well as those
between “labor unions seeking to represent employees and employers[,] and between
persons seeking employment and employers.” Id. at 560-61. The Act’s text and the
Supreme Court’s interpretation of it raise serious questions about the district court’s
conclusion that the Norris-LaGuardia Act does not prohibit or condition injunctions
“absent the present existence of a union.” Brady, 2011 WL 1535240, at * 24.
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The Act’s prohibition on injunctions, moreover, is not limited to cases
“involving” a labor dispute. The Act’s prohibition also covers cases “growing out of”
a labor dispute. For several years, through March 11, 2011, the League and the
Players’ union were parties to a collective bargaining agreement. See id. at *5-6. For
approximately two years, through March 11, the League and Players’ union were
engaged in collective bargaining over terms and conditions of employment. See id.
at *6. When that bargaining failed to produce an agreement on disputed employment
terms, and the League’s lockout loomed, the union disclaimed its status as the Players’
representative on March 11, and the Players filed this antitrust action on March 11.
See id. at *6-7. In this action – filed the same day the union discontinued collective
bargaining – the Players seek relief concerning terms and conditions of employment.
Given the close temporal and substantive relationship linking this case with the labor
dispute between League and the Players’ union, we struggle at this juncture to see why
this case is not at least one “growing out of a labor dispute” – even under the district
court’s view that union involvement is required for a labor dispute.
The Players defend the district court’s decision on an alternative ground that the
Norris-LaGuardia Act does not prohibit injunctions against a lockout by an employer.
The most apposite authorities support the view that the Act bars injunctions against
lockouts by employers. See Chi. Midtown Milk Distribs., Inc. v. Dean Foods Co.,
1970 WL 2761, at *1 (7th Cir. July 9, 1970) (per curiam); Clune v. Publishers’ Ass’n
of New York City, 214 F. Supp. 520, 528-29 (S.D.N.Y.), aff’d, 314 F.2d 343, 344 (2d
Cir. 1963) (mem.) (per curiam); Plumbers & Steamfitters Local 598 v. Morris, 511 F.
Supp. 1298, 1311 (E.D. Wash. 1981). Because the phrase “remain in any relation of
employment” naturally applies to employers as well as employees, we are not inclined
to disagree with these decisions. See 29 U.S.C. § 104(a).
The Players suggest that section 104(a) – forbidding a district court to enjoin
any person from “refusing . . . to remain in any relation of employment” – applies only
to injunctions against workers, and exists only to clarify that the Act covers both
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temporary strikes and permanent cessations of employment. The Players note that the
quoted phrase was drawn from Section 20 of the Clayton Act, which “was specifically
intended . . . ‘to guard the right of workingmen to act together in terminating, if they
desire, any relation of employment.’” Local 2750, Lumber & Sawmill Workers Union
v. Cole, 663 F.2d 983, 986 n.5 (9th Cir. 1981) (quoting S. Rep. No. 63-698, at 51
(1914)); see also De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d
281, 291-92 (1st Cir. 1970).
Our present view is that this interpretation of the Act is unlikely to prevail. As
both the D.C. Circuit and the Second Circuit have observed, although Congress “‘was
largely concerned with the effect of [federal court] interference on unions, the
[Clayton Act] was phrased in an evenhanded fashion to protect employer conduct in
labor disputes as well as that of unions.’” Brown v. Pro Football Inc., 50 F.3d 1041,
1055 (D.C. Cir. 1995) (quoting Nat’l Basketball Ass’n v. Williams, 45 F.3d 684, 689
(2d Cir. 1995)), aff’d, 518 U.S. 231 (1996). The Norris-LaGuardia Act retained that
evenhanded phrasing by precluding an injunction that prohibits “any persons
participating or interested in a labor dispute” from refusing to remain in a relation of
employment. 29 U.S.C. § 104(a).*
In sum, we have serious doubts that the district court had jurisdiction to enjoin
the League’s lockout, and accordingly conclude that the League has made a strong
showing that it is likely to succeed on the merits.
We next consider what injury to the parties is likely to arise from this court’s
grant or denial of the motion for a stay, and how the public interest would be affected
by this court’s decision on the motion. The Players argue that they are suffering
*
We further observe that even if section 104(a) of the Act were construed to
permit an injunction against an employer lockout, there is a serious question whether
the district court complied with the procedural requirements of the Act – including to
hold a hearing in open court with opportunity for cross-examination – before issuing
an injunction. See 29 U.S.C. § 107; cf. Mackey, 543 F.2d at 623.
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irreparable harm as a result of the lockout, and that the grant of a stay pending appeal
would subject them to continuing injury. They contend that even if the court decides
this case during the NFL off-season, they are injured irreparably by an inability to
participate in off-season practice and classroom sessions, to learn their teams’
playbooks, to undergo team-supervised medical procedures and evaluations, and to
work out at team facilities. They emphasize that nearly 900 players are free agents
without contracts, and that the lockout deprives them of a competitive market through
which they can pursue their careers. The Players argue that every day of a lockout
increases the chance that the 2011 season will be cancelled or significantly shortened,
because teams must sign free agents and rookies in order to finalize their rosters.
Because the career of a professional football player is typically short, they assert that
the loss of even one season of competition is very detrimental.
The League contends that it is irreparably harmed by the district court’s
injunction, because its ability to maintain the lockout is essential to the League’s
negotiating position in an ongoing dispute with the Players, and that there is no way
to measure and compensate the League for its loss of leverage and consequent delay
if the injunction is not stayed. See Int’l Ass’n of Bridge, Structural & Ornamental
Iron Workers v. Pauly Jail Bldg. Co., 118 F.2d 615, 616-17 (8th Cir. 1941) (“The fact
must not be lost sight of, that however narrow the scope of injunctive relief may be
in form, the issuance of the writ for any purpose in a labor dispute will generally tip
the scales of the controversy.”). The NFL observes that this court, in a different
context, has recognized irreparable harm based on the impossibility of recreating a
negotiating environment that a stay pending appeal was designed to preserve. Iowa
Util. Bd. v. FCC, 109 F.3d 418, 425 (8th Cir. 1996); see also Dynamic Solutions, Inc.
v. Planning & Control, Inc., 646 F. Supp. 1329, 1337 (S.D.N.Y. 1986) (copyrightholder deprived of exclusive use satisfied irreparable harm requirement, because
“[t]he monetary worth of that leverage in . . . negotiations would be difficult, at best,
to determine.”). The League also maintains that player transactions that will occur
under the injunction – trades, free agent signings, and roster cuts of players under
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contract – will cause irreparable harm to the League if the district court’s order is not
stayed, because it will be impossible to restore the status quo as of April 25 after
contracts are formed and transactions completed during the processing of an appeal.
Both sides raise valid points, and this is a case in which one party or the other
likely will suffer some degree of irreparable harm no matter how this court resolves
the motion for a stay pending appeal. We do not agree, however, with the district
court’s apparent view that the balance of the equities tilts heavily in favor of the
Players. The district court gave little or no weight to the harm caused to the League
by an injunction issued in the midst of an ongoing dispute over terms and conditions
of employment. The court found irreparable harm to the Players because the lockout
prevents free agents from negotiating contracts with any team, but gave no weight to
harm that would be caused to the League by player transactions that would occur only
with an injunction against the lockout. The court gave full weight to affidavit
evidence submitted by the Players, although that proof was untested by crossexamination at a hearing. Cf. 29 U.S.C. § 107. The district court’s analysis was
conducted without the benefit of knowledge that this appeal will be submitted for
decision on a highly expedited schedule – a circumstance that should minimize harm
to the Players during the off-season and allow the case to be resolved well before the
scheduled beginning of the 2011 season.
As to the fourth factor in our analysis, the public interest surely favors some
resolution between the parties that will permit professional football to be played in
2011, but in this legal context, we see no reason to differentiate between the public
interest and the proper application of the federal law regarding injunctions. In sum,
we think the League has met its burden to demonstrate that it likely will suffer some
degree of irreparable harm without a stay, and the balance of the equities does not
favor the Players so decidedly that it should outweigh our present view about
likelihood of success on the merits.
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For these reasons, the district court’s order of April 25, 2011, is stayed pending
the final disposition of this expedited appeal. The temporary stay imposed by our
order of April 29, 2011, is dissolved, and it is replaced by the stay imposed by the
terms of this order.
BYE, Circuit Judge, dissenting.
I respectfully dissent from the majority’s decision to grant the NFL’s motion
for a stay pending appeal. “A stay is an intrusion into the ordinary processes of
administration and judicial review, . . . and accordingly is not a matter of right, even
if irreparable injury might otherwise result to the appellant.” Nken v. Holder, 129
S.Ct. 1749, 1757 (2009) (internal quotation marks and citation omitted). Because the
present case does not present circumstances warranting such an intrusion, I would
deny the NFL’s motion for a stay pending the final disposition of this expedited
appeal.
My analysis is guided by the four factors we consider in determining whether
to grant a stay:
(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.
Id. at 1756 (internal quotation marks and citation omitted); see also Reserve Mining
Co. v. United States, 498 F.2d 1073, 1076-77 (8th Cir. 1974). The NFL, as the party
seeking a stay, bears the burden of proving these factors. Lankford v. Sherman, 451
F.3d 496, 503 (8th Cir. 2006).
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First, in analyzing the above factors, this court has recognized that “[r]egardless
of the strength of its claim on the merits, a movant for a [stay pending appeal] should
show a threat of irreparable harm.” Cf. Rogers Group, Inc. v. City of Fayetteville,
Ark., 629 F.3d 784, 789 (8th Cir. 2010) (internal quotation marks and citation
omitted); see also S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir.
1992) (per curiam) (noting we consider the same factors in determining a stay pending
appeal as we consider for a preliminary injunction). “Failure to show irreparable harm
is an independently sufficient ground upon which to deny a [stay].” Rogers Group,
Inc., 629 F.3d at 789 (internal quotation marks and citation omitted). With this in
mind, I will first address the balance of equities between the parties before reaching
the likelihood of success on the merits.
“In order to demonstrate irreparable harm, a party must show that the harm is
certain and great and of such imminence that there is a clear and present need for
equitable relief.” Iowa Utils. Bd. v. FCC, 109 F.3d 418, 425 (8th Cir. 1996). Stated
differently, the irreparable harm alleged by the NFL “must be actual and not
theoretical.” Packard Elevator v. ICC, 782 F.2d 112, 115 (8th Cir. 1986). Moreover,
the NFL cannot meet its burden if it demonstrates only economic loss, unless “the loss
threatens the very existence of the [NFL’s] business,” because “economic loss does
not, in and of itself, constitute irreparable harm.” Id. “Implicit in each of these
principles is the further requirement that the [NFL] substantiate the claim that
irreparable injury is ‘likely’ to occur . . . [by] provid[ing] proof that the harm has
occurred in the past and is likely to occur again, or proof indicating that the harm is
certain to occur in the near future.” Id.
As an initial matter, it is difficult to discern which of the NFL’s allegations of
irreparable harm the majority relied upon in its decision. After setting forth the
parties’ arguments, the majority confined its analysis on this point to acknowledging,
“[b]oth sides raise valid points.” Ante at 13. The majority also faulted the district
court for giving “little or no weight to the harm caused to the League by an injunction
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issued in the midst of an ongoing dispute over terms and conditions of employment,”
although it once again did not speak to what harm it was referring. Moreover, the
majority’s allusion to “an injunction issued in the midst of an ongoing dispute over
terms and conditions of employment” ignores the context of the parties’ current
collective bargaining disposition and treats the disclaimer of the union as if it never
happened. See Stay Order at 9 (“This contention assumes that both parties view the
negotiations as being at impasse in the collective bargaining process. But the Players
do not believe there is a collective bargaining process in place.”).
Notwithstanding the majority’s analysis, the NFL has not persuaded me it will
suffer irreparable harm during the pendency of this expedited appeal. First, the NFL
contends the injunction issued by the district court deprives the NFL of its labor law
right to lock out the Players. The resulting effect of this, according to the NFL, is to
skew the collective bargaining process in the Players’ favor. As will be discussed
more fully below, it is doubtful the NFL enjoys its alleged “labor law right to impose
a work stoppage” under the present circumstances where the parties are no longer
engaged in the collective bargaining process. In any event, there will not be any shift
in the “balance of power” until the appeal is resolved. Indeed, the NFL itself
acknowledges, “[a]ll that is relevant here is the injury, if any, that the [parties] would
suffer in the time necessary for this Court to consider a highly expedited appeal during
the offseason.” Appellant’s Brief at 20. Given that the parties will not likely return
to the bargaining table prior to our resolution of this expedited appeal, at which point
we will determine whether the district court properly enjoined the lockout, the NFL’s
claim that it will suffer a loss of bargaining power in this interim period does not
amount to “proof indicating that the harm is certain to occur in the near future” for
purposes of a stay pending appeal. Id.
Next, the NFL asserts it will be unable to “unscramble the egg” of player
transactions occurring in the absence of a stay. The NFL also argues, in the absence
of a stay, its clubs will be required to “produce their inherently joint and collective
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product,” which in turn will subject the League to further antitrust claims by the
Players. Each of these arguments is questionable given the current juncture of affairs.
The preliminary injunction does not dictate the NFL’s free agency rules, or any other
conduct in general, outside of the lockout. Moreover, the fact the NFL must comply
with the law, i.e., the Sherman Act, does not constitute irreparable harm – it is the
absolute minimum that could be expected of the League.
Whatever harm may be said to befall the NFL during the pendency of the
expedited appeal stands in stark contrast to the irreparable harm suffered by the
Players. Regardless of the preclusion of free agency effectuated under the lockout and
its influence on the Players, there can be little dispute that the off-season is an
abundantly busy period for veterans and rookies alike. See Supplemental Declaration
of Richard A. Berthelsen at 14 (“The facts are that the NFL has increasingly become
a year-round business over the past twenty years, with players participating at many
important club activities during this time of the so-called ‘off-season.’”). Even the
brief stay occasioned during this expedited appeal will deprive the Players of
“irreplaceable opportunities to develop their skills as football players and to otherwise
advance their NFL careers.” Declaration of Joby Branion at 2-3. For instance, the
recently-drafted rookie players are presently forestalled from practicing with their new
teams and accessing their team’s gameplan and coaching staff, which could cost these
players the opportunity to become starting players or even make the team. Id. at 3; see
also Supplemental Declaration of Richard A. Berthelsen at 15 (“These players are
among the most vulnerable and cannot afford to be held back with weeks or months
of inactivity when they will have to compete against already established players
competing for the same jobs.”). “A young athlete’s skills diminish and sometimes are
irretrievably lost unless he is given an opportunity to practice and refine such skills
at a certain level of proficiency.” Neeld v. Am. Hockey League, 439 F. Supp. 459,
461 (W.D.N.Y. 1977).
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Similarly, the veteran players are subject to the demands of constantly proving
their worth in the NFL. Declaration of Frank Bauer at 5 (“The virtually constant need
for NFL players to prove their skill and value on both the game and practice fields
makes a ‘lockout’ especially problematic.”). It is of little surprise that professional
athletes must undergo rigorous off-season workouts, study playbooks, and meet with
coaches and team officials to assiduously prepare for the upcoming season. See
Supplemental Declaration of Richard A. Berthelsen at 14 (“[T]he off-season would
normally be comprised of up to 14 weeks of practice activity as well as classroom
sessions where players spend valuable time with their coaches learning their club’s
offensive and defensive systems. Players are constantly working out at club facilities,
under the supervision of club personnel who are constantly evaluating players.
Players also undergo club supervised medical procedures and evaluations during the
off-season.”). It follows that even the abbreviated harm fashioned by the stay will
obviate the Players’ opportunities to engage in any of these off-season necessities,
which could have dramatic repercussions to the Players’ careers in the long term.
Further, none of this harm can be adequately compensated by monetary damages. See
Rogers Group, Inc., 629 F.3d at 789 (“Irreparable harm occurs when a party has no
adequate remedy at law, typically because its injuries cannot be fully compensated
through an award of damages.”) (internal quotation marks and citation omitted).
Due to the irreparable harm presently incurred by the Players, compared with
the limited harm, if any, suffered by the NFL, I believe the balance of harms weighs
heavily in the Players’ favor. Consequently, I would require the NFL to satisfy a
heavier burden of showing it is likely to prevail on the merits. See Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc) (“If the chance of
irreparable injury to the movant should relief be denied is outweighed by the likely
injury to other parties litigant should the injunction be granted, the moving party faces
a heavy burden of demonstrating that he is likely to prevail on the merits.”).
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In analyzing the merits, it becomes readily apparent that the NFL fails to satisfy
its burden. I disagree with the majority’s assessment of the merits of the NFL’s
position concerning the applicability of the Norris-LaGuardia Act. It is true the Act
deprives federal courts of jurisdiction to grant injunctive relief in “case[s] involving
or growing out of a labor dispute,” 29 U.S.C. § 101, and specifically prevents
injunctions prohibiting “[c]easing or refusing to perform any work or to remain in any
relation of employment,” 29 U.S.C. § 104(a). It is also true the Act is phrased in
intentionally broad terms, Jacksonville Bulk Terminals, Inc. v. ILA, 457 U.S. 702, 708
(1982), and contains an expansive definition of the term “labor dispute.” See 29
U.S.C. § 113(c). But in interpreting these provisions, the majority loses sight of the
principal purpose behind the enactment of the Act, see Kasten v. Saint-Gobain
Performance Plastics Corp., 131 S.Ct. 1325, 1330 (2011) (stressing the importance of
purpose and context of the statute in conducting statutory analysis), and, as a result,
manages to use “benefits to organized labor . . . as a cat’s-paw to pull employers’
chestnuts out of the antitrust fires.” United States v. Women’s Sportswear Mfg.
Ass’n, 336 U.S. 460, 464 (1949).
The legislative history of the Act reveals that Congress enacted it in response
to the Supreme Court’s decision in Duplex Printing Press Co. v. Deering, 254 U.S.
443 (1921), where the Court refused to extend a similar anti-injunction provision in
the Clayton Act to secondary activity – i.e., activity where union pressure is directed
against third parties rather than the employees’ own employer. Burlington N. R.R.
Co. v. Bhd. of Maintenance of Way Employes, 481 U.S. 429, 438 (1987). Congress
felt the unduly narrow construction of the law in Duplex Printing and the pattern of
injunctions entered by federal judges deliberately flouted the expression of its will in
the Clayton Act. See Michael C. Duff, Labor Injunctions in Bankruptcy: The NorrisLaGuardia Firewall, 2009 Mich. St. L. Rev. 669, 678 n.39 (2009). To redress this
problem, Congress took care to “greatly broaden[] the meaning . . . attributed to the
words ‘labor dispute,’ further restrict[] the use of injunctions in such a dispute, and
emphasize[] the public importance under modern economic conditions of protecting
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the rights of employees to organize into unions and to engage in ‘concerted activities
for the purpose of collective bargaining or other mutual aid or protection.’” Allen
Bradley Co. v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 325 U.S. 797, 805
(1945). All of that was, of course, done ostensibly to “stay[] the hands of courts
whose creativity had been employed in the service of management,” Burlington N.
R.R. Co. v. Bhd. of Maintenance of Way Employees, 793 F.2d 795, 806 (7th Cir.
1986), and “to protect the rights of labor,” United Mine Workers of Am. v.
Pennington, 381 U.S. 676, 703 n.4 (1965) (internal citation omitted).
Evaluated against this backdrop, the Act must be understood to apply to an
increasingly broad number of actors in a labor dispute. For example, the language of
the Act making it applicable to “case[s] involving or growing out of a labor dispute”
ensures that courts do not enjoin secondary activity related to collective bargaining,
even if the secondary employer is not substantially aligned with the primary employer.
See Burlington Northern Railroad Co., 793 F.2d at 805-06. Similarly, Section 4(a)’s
ban on injunctions against “[c]easing or refusing to perform any work or to remain in
any relation of employment” clarifies that “employee strikes could not be enjoined
either if the employees claimed to have ceased or refused to work temporarily or if
they claimed to have completely ended their employment relation with their
employer.” De Arroyo v. Sindicato de Trabajadores Packinghouse, AFL-CIO, 425
F.2d 281, 291 (1st Cir. 1970), disapproved on other grounds, Bowen v. U.S. Postal
Serv., 459 U.S. 212, 220 n.8 (1983); see also Local 2750, Lumber & Sawmill Workers
Union, AFL-CIO v. Cole, 663 F.2d 983, 986 n.5 (9th Cir. 1981). Finally, the broad
language of the Act has been construed to encompass disputes “grounded in
noneconomic motives,” such as disagreements with the employer’s policies.
See Cent. Vermont Ry., Inc. v. Bhd. of Maintenance of Way Employees, 793 F.2d
1298, 1301 (D.C. Cir. 1986) (citing Jacksonville Bulk Terminals, Inc., 457 U.S. at
713-15, and New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 560 (1938)).
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Yet, despite the widening circle of actors eligible for protection under the Act,
the law remains focused on safeguarding the collective bargaining process.
Recognizing that unions are, by their very nature, groups of people acting together in
restraint of free competition and trade, see Pennington, 381 U.S. at 666, the Act strikes
a delicate balance between “‘the congressional policy favoring collective bargaining
under the NLRA and the congressional policy favoring free competition in business
markets.’” Brown v. Pro Football, Inc., 50 F.3d 1041, 1048 (D.C. Cir. 1995) (quoting
Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616,
622 (1975)). By suspending antitrust liability, the Act protects “working men in the
exercise of organized, economic power, which is vital to collective bargaining.” Bhd.
of R.R. Trainmen v. Chicago River & Ind. R.R. Co., 353 U.S. 30, 40 (1957). Unless
the values of collective bargaining are implicated, federal labor laws yield to the
regular antitrust framework. See Powell v. NFL, 930 F.2d 1293, 1303 (8th Cir. 1989).
The question becomes, then, whether the Act shields from antitrust liability the actions
of the NFL even after the NFLPA had disclaimed its role as the Players’ collective
bargaining representative and the Players voted to end the NFLPA’s status as their
representative.
In my opinion, the answer to this question lies in the Supreme Court’s decision
in Brown v. Pro Football, Inc., 518 U.S. 231 (1996), where the Court analyzed the
applicability of the nonstatutory labor exemption from antitrust liability where parties
reach a significant impasse in negotiations. Although the Court ultimately concluded
the employer was entitled to the nonstatutory labor exemption in that case, the Court
hypothesized that “an agreement among employers could be sufficiently distant in
time and in circumstances from the collective-bargaining process that a rule permitting
antitrust intervention would not significantly interfere with that process.” Id. at 250.
As one example of such a sufficiently distant event, the Court cited a “collapse of the
collective-bargaining relationship, as evidenced by decertification of the union.” Id.;
Brown, 50 F.3d at 105 (“If employees wish to seek the protections of the Sherman
Act, they may forego unionization or even decertify their unions.”); see also NBA v.
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Williams, 857 F. Supp. 1069, 1078 (S.D.N.Y. 1994) (predicting the players can avoid
the labor injunction if they disclaim the union as their collective bargaining agent);
Powell v. NFL, 764 F. Supp. 1351, 1356-57 (D. Minn. 1991) (holding that the
ongoing collective bargaining relationship ends, and the nonstatutory labor exemption
no longer applies, when the players vote to repudiate the union). When the union no
longer represents employees, collective bargaining comes to a definitive halt, and
labor laws are no longer implicated. See generally Phillip Lawrence Wright, Jr.,
Major League Soccer: Antitrust, the Single Entity, and the Heightened Demand for
a Labor Movement in the New Professional Soccer League, 10 Seton Hall J. Sport L.
358, 386 (2000) (stating that, “when a union decertifies, the collective bargaining
relationship between the players and owners (or league) ends because the union no
longer represents the players” and the players regain the ability to sue under the
Sherman Act).
Since the statutory and the nonstatutory labor exemptions are actuated by the
same policies concerning the antitrust-labor balance, the Court’s language in Brown
is indicative of the outer limits of their application. It would be illogical to reject the
nonstatutory labor exemption upon union disclaimer, yet prohibit the court from
remedying antitrust violations through injunctive relief. Brown suggests that, with the
collapse of the union, labor laws are no longer in force and the preexisting antitrust
rights apply. By disassociating themselves from the union, the players make a choice
in favor of the antitrust framework at the expense of foregoing the protections of labor
laws. Brown, 50 F.3d at 1057. This is a quid pro quo they are entitled to make.
See 29 U.S.C. § 157 (describing employees’ right to self-organization, including “the
right to refrain from” joining labor organizations). Refusing to attribute proper
significance to the fact of the union disclaimer would lead to “the bizarre prospect of
employers attempting to force employees to remain in a union so as to preserve the
employers’ valuable antitrust exemption.” Brown, 50 F.3d at 1065 (Wald, J.,
dissenting) (describing the NFL’s suit seeking judicial invalidation of the union
disclaimer by the players). It would also hold the Players in limbo for an
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indeterminate period of time, during which they can neither take advantage of their
collective bargaining rights nor avail themselves of protections of antitrust law.
In support of its argument that existence of a labor union is irrelevant for the
purpose of the Norris-LaGuardia Act, the majority cites the 1938 decision of the
Supreme Court in New Negro Alliance v. Sanitary Grocery Co., where the Court
applied the Act to lift an injunction against a civil rights organization protesting
discriminatory policies of the employer. Carefully read, however, the case does not
stand for the proposition for which the majority cites it. To begin with, New Negro
Alliance did not answer the precise question at issue before this court – the
applicability of the Norris-LaGuardia Act post-disclaimer. Rather, the issue there was
whether the terms and conditions of employment had to be economic in nature, or
could also relate to the employer’s non-economic policies. Jacksonville Bulk
Terminals, Inc., 457 U.S. at 714. The opinion also reaffirmed the familiar principle
that the disputants need not “stand in the relationship of employer and employee” to
fall within the ambit of the Act. Id. Nowhere in the opinion did the Court discuss the
applicability of the Act in the absence of collective bargaining, not to mention its
applicability following a definitive disclaimer of the union representation. Because
the Supreme Court certainly did not “squarely address” the relevant issue, this court
is not bound by any sub silentio holding the majority seeks to infer. Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993).
Indeed, New Negro Alliance does not mention the existence of any collective
bargaining relationship whatsoever. By logical extension, then, the majority would
jettison the requirement of having any connection to the collective bargaining process
altogether and thereby extend the Act’s strictures to virtually any employment
discrimination dispute. Such result is demonstrably untenable. See Stearns v. NCR
Corp., 297 F.3d 706, 710 (8th Cir. 2002) (“In general, an employment contract
between an employer and a non-union employee is governed by state law, not by . . .
the federal labor laws.”). In addition, New Negro Alliance remains in conflict with
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the Supreme Court’s suggestion in Brown that at some point, the breakdown of the
collective bargaining process tips the balance between labor and antitrust laws in favor
of the latter. Instead of accepting a simple, clear-cut line of demarcation suggested
by Brown – upon dissolution of the union – the majority indulges in the fiction that
collective bargaining continues for some undefined period following the disclaimer.
In sum, because I believe the Norris-LaGuardia Act does not apply in a
situation where the Players are no longer represented by the union, I would conclude
the NFL did not make the necessary strong showing of likelihood of success on the
merits. Moreover, as it relates to the fourth factor, the NFL’s failure to make the
necessary showing on the merits detracts from the NFL’s argument that the public
interest favors the application of labor laws in the current context. At best, when
considering the public interest in having a 2011 NFL season and, by extension,
continuing with normal operations necessary for that objective, the public interest
factor is a wash. Taken in conjunction with the balance of harms, which clearly favors
the Players during the pendency of the expedited appeal, I would deny the NFL’s
motion for a stay.
I respectfully dissent.
______________________________
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