Brady et al v. National Football League et al

Filing 34

MEMORANDUM in Opposition re 2 MOTION for Preliminary Injunction 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)

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

)
)
)
) No. 0:11-cv-00639-SRN-JJG
)
)
)
)
)
)
)

Memorandum of Law
of the National Football League and Its Member Clubs
In Opposition to Plaintiffs’ Motion for a Preliminary Injunction

TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... i
TABLE OF AUTHORITIES ............................................................................... iii
INTRODUCTION ................................................................................................ 1
BACKGROUND FACTS ...................................................................................... 4
I.

The Norris-LaGuardia Act Divests this Court of Jurisdiction to
Grant the Requested Injunctive Relief. .................................................... 9
A.
B.

The NFLPA’s purported “disclaimer” does not affect the
withdrawal of jurisdiction. ............................................................ 12

C.
II.

This case “involves” and “grows out of” a “labor dispute.” .......... 11

The Norris-LaGuardia Act bars injunctions against strikes
and lockouts alike. ......................................................................... 14

Resolution of Plaintiffs’ Suit Requires Determination of Issues
Within the Primary Jurisdiction of the NLRB....................................... 17
A.

B.
III.

The primary jurisdiction doctrine requires courts to stay
actions that implicate issues falling within the specialized
knowledge of the NLRB. ................................................................ 18
Plaintiffs’ antitrust suit rests on a predicate issue that falls
squarely within the primary jurisdiction of the NLRB. .............. 19

Plaintiffs Cannot Meet Their Heavy Burden of Proving that
Preliminary Injunctive Relief is Warranted. ......................................... 28
A.

Plaintiffs cannot show a likelihood of success on the merits. ..... 28
1.

The nonstatutory labor exemption protects lockouts
by multiemployer bargaining units. ................................... 29

2.

The exemption continues to apply until the
challenged conduct is sufficiently distant in time and
in circumstances from the collective bargaining
process. ................................................................................. 31

-i-

3.

The exemption protects the challenged lockout from
antitrust scrutiny. ................................................................ 36

4.

Plaintiffs’ “waiver” argument lacks any merit. .................. 39

B.

Plaintiffs will not suffer irreparable harm in the absence of
temporary injunctive relief. ........................................................... 42

C.

The balance of harms favors the NFL. ......................................... 45

D.

The public interest will be furthered only if the Court
denies plaintiffs’ motion. ............................................................... 47

CONCLUSION ................................................................................................... 49

- ii -

TABLE OF AUTHORITIES
Page(s)

CASES

Am. Needle, Inc. v. NFL,

130 S. Ct. 2201 (2010) ............................................................................. 45, 46

Anderson v. Ford Motor Co.,

803 F.2d 953 (8th Cir. 1986)................................................................... 29, 48

Anytime Fitness, Inc. v. Family Fitness of Royal, LLC,

2010 WL 145259 (D. Minn. Jan. 8, 2010) .................................................... 28

Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade,

412 U.S. 800 (1973) ....................................................................................... 19

Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. Co.,

353 U.S. 30 (1957) ......................................................................................... 16

Brown v. Pro Football, Inc.,

50 F.3d 1041 (D.C. Cir. 1995), aff’d, 518 U.S. 231 (1996) ......... 26, 30, 48, 49

Brown v. Pro-Football, Inc.,

518 U.S. 231 (1996) ................................................................................ passim

Burlington N. R.R. Co. v. Bhd. of Maint. of Way Emps.,

481 U.S. 429 (1987) ....................................................................................... 11

Burlington N. Santa Fe Ry. Co. v. Int’l Bhd. of Teamsters Local 174,

203 F.3d 703 (9th Cir. 2000) (en banc) ........................................................ 13

Camping Constr. Co. v. Dist. Council of Iron Workers,

915 F.2d 1333 (9th Cir. 1990)....................................................................... 16

CDI Energy Servs., Inc. v. W. River Pumps, Inc.,

567 F.3d 398 (8th Cir. 2009)................................................................... 29, 42

Charles D. Bonanno Linen Serv. Inc., 243 NLRB 1093 (1979),
enf’d 630 F.2d 25 (1st Cir. 1980), aff’d 454 U.S. 404 (1982). ...................... 23
Chi. Midtown Milk Distribs. v. Dean Foods Co.,

1970 WL 2761 (7th Cir. July 9, 1970) .......................................................... 14

- iii -

Chi. Rock Is. & Pac. R.R. Co. v. Switchmen’s Union of N. Am.,

292 F.2d 61 (2d Cir. 1961) ............................................................................ 16

Columbia River Packers Ass’n v. Hinton,

315 U.S. 143 (1942) ....................................................................................... 13

Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100,

421 U.S. 616 (1975) ....................................................................................... 19

Conoco, Inc.,

287 NLRB 548 (1987) ................................................................................... 42

Cormier v. Simplex Techs., Inc.

1999 WL 628120 (D.N.H. Mar. 4, 1999) ...................................................... 25

Dataphase Sys., Inc. v. C L Sys., Inc.,

640 F.2d 109 (8th Cir. 1981) (en banc) ........................................................ 28

Detroit Newspaper Publ’rs Ass’n v. NLRB,

372 F.2d 569 (6th Cir. 1967)......................................................................... 23

In re Dist. No. 1-Pac. Coast Dist. Marine Eng’rs Beneficial Ass’n
(AFL-CIO), 723 F.2d 70 (D.C. Cir. 1983) ............................................... 15, 48
El Cerrito Mill & Lumber Co.,

316 NLRB 1005 (1995) ................................................................................. 26

Gale v. Norwesco, Inc.,

1990 WL 284504 (D. Minn. Dec. 11, 1990) .................................................. 18

Gen. Motors Corp. v. Harry Brown’s, LLC,

563 F.3d 312 (8th Cir. 2009)......................................................................... 43

Glenwood Bridge, Inc. v. City of Minneapolis,

940 F.2d 367 (8th Cir. 1991)......................................................................... 47

H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n,

451 U.S. 704 (1981) ................................................................................. 10, 16

In re Haywood v. NBA,

401 U.S. 1204 (1971) (Blackmun, J.) (in chambers) ................................... 45

Int’l Bhd. of Elec. Workers, AFL-CIO & Local 159 (Texlite, Inc.),
119 NLRB 1792 (1958), enf’d 266 F.2d 349 (5th Cir. 1959) ....................... 21
- iv -

Jackson v. NFL,

802 F. Supp. 226 (D. Minn. 1992) .......................................................... 16, 45

Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n,

457 U.S. 702 (1982) ....................................................................................... 11

John Peterson Motors, Inc. v. Gen. Motors Corp.,

613 F. Supp. 887 (D. Minn. 1985) ................................................................ 43

Kaiser Steel Corp. v. Mullins,

455 U.S. 72 (1982) ......................................................................................... 19

Local 926, Int’l Union of Operating Eng’rs v. Jones

460 U.S. 669 (1983) ....................................................................................... 25

Lodge 76, Int’l Ass’n of Machinists v. Wisc. Emp’t Relations Comm’n,

427 U.S. 132 (1976) ....................................................................................... 29

Marine Cooks & Stewards, AFL v. Pan S.S. Co.,

362 U.S. 365 (1960) ....................................................................................... 16

Mazurek v. Armstrong,

520 U.S. 968 (1997) ....................................................................................... 28

McNeil v. NFL (sub nom. Powell v. NFL),

764 F. Supp. 1351 (D. Minn. 1991) .............................................................. 25

Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Prods.,

311 U.S. 91 (1940) ......................................................................................... 10

Minn-Dak Farmers Co-op. Emps. Org. v. Minn-Dak Farmers Co-op,

3 F.3d 1199 (8th Cir. 1993)........................................................................... 20

NBA v. Williams,

45 F.3d 684 (2d Cir. 1995) ............................................................................ 30

New Negro Alliance v. Sanitary Grocery Co.,

303 U.S. 552 (1938) ....................................................................................... 13

Newspaper Guild of Salem v. Ottaway Newspapers, Inc.,

79 F.3d 1273 (1st Cir. 1996) ......................................................................... 19

News-Press Publ’g Co.,

145 NLRB 803 (1964) ................................................................................... 23
-v-

NFLPA v. NFL,

598 F. Supp. 2d 971 (D. Minn. 2008) ........................................................... 44

NLRB v. Columbia Tribune Publ’g Co.,

495 F.2d 1384 (8th Cir. 1974)................................................................. 20, 24

Osthus ex rel. NLRB v. Laborers Dist. Council of Minn. & N.D.,

2010 WL 3927409 (D. Minn. Oct. 4, 2010) .................................................. 48

Platt v. Jack Cooper Transp. Co.,

959 F.2d 91, 95 (8th Cir. 1992)..................................................................... 25

Plumbers & Steamfitters Local 598 v. Morris,

511 F. Supp. 1298 (E.D. Wash. 1981) .................................................... 12, 14

Powell v. NFL,

678 F. Supp. 777 (D. Minn. 1988) ................................................................ 24

Powell v. NFL,

690 F. Supp. 812 (D. Minn. 1988) .............................................. 11, 47, 48, 49

Powell v. NFL,

930 F.2d 1293 (8th Cir. 1989)................................................................ passim

Reiter v. Cooper,

507 U.S. 258 (1993) ....................................................................................... 24

Resolution Trust Corp. v. Home Savs. of Am.,

946 F.2d 93 (8th Cir. 1991)........................................................................... 42

Retail Assocs, Inc.,

120 NLRB 388 (1958) ................................................................................... 21

Reynolds v. NFL,

584 F.2d 280 (8th Cir. 1978)......................................................................... 46

Rittmiller v. Blex Oil, Inc.,

624 F.2d 857 (8th Cir. 1980)......................................................................... 43

S & M Constructors, Inc. v. Foley Co.,

959 F.2d 97 (8th Cir. 1992)........................................................................... 28

Sampson v. Murray,

415 U.S. 61 (1974) ......................................................................................... 44
- vi -

San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236 (1959) ........................................................................... 18, 20, 24

Teamsters Local Union 682 v. KCI Constr. Co.,

384 F.3d 532 (8th Cir. 2004)......................................................................... 26

United States v. W. Pac. R.R. Co.,

352 U.S. 59 (1956) ................................................................................... 18, 24

W. Gulf Maritime Ass’n v. ILA Deep Sea Local 24,

751 F.2d 721 (5th Cir. 1985)......................................................................... 10

STATUTES AND RULES
29 U.S.C. § 104 ................................................................................... 9, 10, 11, 14
29 U.S.C. § 105 ................................................................................................... 10
29 U.S.C. § 113 ............................................................................................. 11, 12
29 U.S.C. § 152(5) .............................................................................................. 22
29 U.S.C. § 157 ................................................................................................... 18
29 U.S.C. § 158 ............................................................................................. 18, 25
29 U.S.C. § 176 ................................................................................................... 15
29 U.S.C. § 178 ................................................................................................... 15
Fed. R. Civ. P. 65(e)(1) ....................................................................................... 13
OTHER AUTHORITIES
Black’s Law Dictionary (9th ed. 2009) .............................................................. 29
Restatement (Second) of Contracts § 178 (1981) ............................................. 42
Restatement (Second) of Contracts § 196 (1981) ............................................. 42
S. Rep. No. 163, 72 Cong., 1st Sess. (1932) ...................................................... 15

- vii -

INTRODUCTION
Plaintiffs seek an injunction under the Sherman Act prohibiting the
NFL’s member clubs from imposing a lockout that is unquestionably lawful
and permitted by federal labor law. Plaintiffs contend that their union’s
purported disclaimer of interest in collective bargaining—undertaken
literally during a collective bargaining session at the offices of the Federal
Mediation and Conciliation Service—converts into an antitrust violation that
may be enjoined by this Court the clubs’ exercise of their labor law right to
lock out their player-employees.
The law is not so easily manipulated. One party to a collective
bargaining relationship cannot, through its own tactical and unilateral
conduct, instantaneously oust federal labor law or extinguish another party’s
labor law rights. A union cannot, by a tactical declaration akin to the flip of a
switch, transform a multiemployer bargaining unit’s lawful use of economic
tools afforded it under the labor laws into an antitrust violation giving rise to
treble damages and injunctive relief.
The Court may not grant the requested injunction for three
independent reasons, the first two of which are jurisdictional.

First, the Norris-LaGuardia Act withdraws jurisdiction from this Court
to grant the requested relief. Section 4 of the Act prohibits this Court from
issuing an injunction against a lockout. That prohibition applies regardless

of whether or not the NFLPA remains a union. The jurisdictional bar applies
as long as this case “involves or grows out of” a labor dispute, a test that is
clearly satisfied here.

Second, and separately, plaintiffs’ suit raises threshold questions about
the representational status of their union and whether its purported
disclaimer is valid under federal labor law. Those questions fall squarely
within the primary jurisdiction of the National Labor Relations Board. The
validity of the purported disclaimer is a threshold issue because, if it is
invalid under the labor laws, the nonstatutory labor exemption
unquestionably protects the NFL clubs’ exercise of their labor law rights,
including their right to lock out, from antitrust scrutiny.
The NLRB is now considering whether the union has purported to
disclaim in order to gain a tactical bargaining advantage, rather than
disclaiming unequivocally and in good faith, as the federal labor laws require.
If the Board finds such a violation, it will issue an order requiring the union
to return to the collective bargaining table. Under the primary jurisdiction
doctrine, the Court must stay this case pending the outcome of the Board
proceedings.

Third, even if this Court had jurisdiction to consider the request for an
injunction, plaintiffs could not demonstrate that one should issue.

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Plaintiffs are demonstrably unlikely to succeed on the merits of their
antitrust claim. The nonstatutory labor exemption protects from antitrust
scrutiny the clubs’ exercise of their labor law right to lock out—a right
“directly related to [] the lawful operation of the bargaining process.” Brown

v. Pro-Football, Inc., 518 U.S. 231, 250 (1996).
The nonstatutory labor exemption continues to apply until a point
“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. Given the timing and
circumstances presented here, the exemption undoubtedly remains in effect.
In any event, as the Supreme Court has held, the Court could not find the
“sufficiently distant” test satisfied and the exemption inapplicable without
considering “the detailed views of the Board.” Id.
Plaintiffs allege that the NFL waived its ability to argue that the
disclaimer is a sham. That assertion ignores the plain language of the CBA;
plaintiffs could have asserted a waiver only if the purported disclaimer had
occurred after CBA expiration. Here, presumably because the CBA would
have barred antitrust claims for at least six months if the disclaimer had
occurred after expiration, the union purported to disappear a full eight hours

before the midnight expiration. In any event, any purported waiver would
not preclude either the League’s charge before the NLRB, or any argument
-3-

that the exemption continues to apply under Brown’s “sufficiently distant”
test.
Plaintiffs also cannot demonstrate irreparable harm; any alleged injury
would be compensable in treble damages. Given the obvious Catch-22
imposed by plaintiffs’ request for an injunction (which, if granted, would
expose the League to immediate, additional antitrust claims), the balance of
hardships weighs in favor of the NFL, as does the public interest in
multiemployer bargaining and judicial noninterference in labor disputes.
BACKGROUND FACTS
The National Football League Management Council (“NFLMC”) is the
sole and exclusive collective bargaining representative of the 32 member
clubs of the NFL. The National Football League Players Association
(“NFLPA” or “Union”) is the sole and exclusive collective bargaining
representative of all NFL players, including plaintiffs. Between 1970 and
2006, the NFLPA and NFLMC negotiated a series of collective bargaining
agreements governing the players’ terms and conditions of employment.
The most recent CBA expired at 11:59 pm on Friday, March 11, 2011,
except for provisions related to the 2011 NFL Draft. Although they have
been engaged in collective bargaining negotiations since at least June 2009
(Compl. ¶50; Pls.’ Mem. 8 ¶11), the NFLPA and the NFLMC have not yet
negotiated a successor agreement.
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At 4:00 p.m. on March 11, 2011, while the parties literally were at the
collective bargaining table, the NFLPA purported to disclaim interest in
representing the players in further negotiations. (Compl. ¶57.) Within an
hour, plaintiffs (who include two members of the NFLPA executive
committee)—financed by the NFLPA and represented by the same NFLPA
lawyers who had been at the bargaining table only moments earlier—filed
this lawsuit, claiming, inter alia, that any lockout imposed in support of the
NFL’s collective bargaining position would be a concerted refusal to deal
violating Section 1 of the Sherman Act. (See Pls.’ Mem. 11 ¶3.)
Plaintiffs also challenge under the Sherman Act terms and conditions
of player employment to which their Union had previously agreed, including
“Franchise” and “Transition” designations, the College Draft, and the
Entering Player Pool. (Compl. ¶¶126-132.) 1 Plaintiffs do not seek a
preliminary injunction with respect to these terms; they instead seek an
injunction requiring the resumption of football operations so that they can
pursue treble damages for the NFL clubs’ continued adherence to them.
*

*

*

*

The last time that a CBA between the NFLPA and the NFLMC expired
was in 1987. Over the six years that followed, the relationship between the
1

The Declaration of Peter Ruocco explains these terms in more detail.

-5-

NFL and the NFL clubs, on the one hand, and the NFLPA and NFL players,
on the other, included not only collective bargaining, but also (1) antitrust
litigation brought by the NFLPA (Powell v. NFL, No. 87-917); (2) a purported
disclaimer by the NFLPA of its role as the players’ collective bargaining
representative; (3) more antitrust litigation directed and financed by the
NFLPA (e.g., McNeil v. NFL, No. 90-476; Jackson v. NFL, No. 92-876; White

v. NFL, No. 92-906); (4) settlement of the antitrust litigation on terms
negotiated by the NFLPA’s lawyers and executive director; (5) “resurrection”
of the NFLPA’s status as a union; and then (6) importation of the litigation
settlement into a new CBA.
The NFLPA and plaintiffs seek to repeat that cycle here.
In 1989, the Eighth Circuit held in Powell that the nonstatutory labor
exemption barred antitrust claims brought by the Union and its members
against the League. The NFLPA responded by purporting to disclaim
interest in collective bargaining, in the hope that the purported absence of a
union would permit its members to continue its antitrust challenge to the
terms and conditions of their employment.
In support of that strategy, the Union repeatedly and unambiguously
represented to the court that its disclaimer was permanent and irreversible,
and not a bargaining tactic:

-6-

• “[T]he NFLPA’s abandonment of collective bargaining rights was
permanent and irreversible, and not designed to put pressure on the
NFL to achieve a new collective bargaining agreement.” Aff. of Jeffrey
L. Kessler, McNeil v. NFL, No. 4-90-476, at 2 (Nov. 2, 1990) (emphasis
in original) (Ex. A). 2
• “[T]he NFLPA enacted by-laws preventing it from ever engaging in
collective bargaining with the NFL.” Pls.’ Part. SJ Mem. at 3, McNeil
v. NFL (Aug. 1, 1990) (emphasis added) (Ex. B).
• “[A]s far as ever being a labor organization again, that is a permanent
status. We have no intentions, in the future or in my lifetime, to ever
return to be a labor organization again.” Dep. Testimony of Gene
Upshaw, Executive Director of the NFLPA, in McNeil v. NFL, at 234
(Oct. 3, 1990) (Ex. C).
Despite these sworn representations of permanent, irreversible, and
non-tactical disclaimer, the NFLPA negotiated a collective bargaining
agreement less than three years later. (Berthelsen Decl. ¶6 (testifying to
direct participation of NFLPA general counsel in settlement discussions).)
Statements of NFLPA representatives both before and after March 11,
2011, examples of which are excerpted below, confirm that its current
“disclaimer” is a tactical ploy in support of precisely the same strategy:
• On September 29, 2010, Kevin Mawae, the president of the NFLPA,
stated: “[T]he idea of decertification, the tactic and the strategy worked
back in 1989... . [T]he whole purpose [of disclaimer] is to have that ace
in our sleeve …. And at the end of the day, guys understand the
strategy, it’s been a part of the union strategy since I’ve been in the
league ... .” (Ex. D at 10-11 (emphases added).)

2

All cited exhibits (“Ex.”) are attached to the Declaration of Daniel Connolly.

-7-

• On November 10, 2010, DeMeco Ryans, the Houston Texans’ NFLPA
player representative said: “I think [disclaimer is] a good decision and a
good strategy on our part as a union.” (Ex. E at 1 (emphasis added).)
• On March 2, 2011, Derrick Mason, the Baltimore Ravens’ NFLPA
player representative, said about the consequences of disclaimer: “Still
we stand behind DeMaurice [Smith, Executive Director of the Union]
and we stand behind the players in the NFL. So are we a union? Per
se, no. But we’re still going to act as if we are one. We’re going to still
talk amongst each other and we’re going to still try to as a whole get a
deal done.” (Ex. F at 6 (emphases added).)
• On March 11, 2011, after the NFLPA purported to decertify, Vonnie
Holliday, the NFLPA representative for the Washington Redskins, was
asked, “what do you want?” He replied, “We want a fair CBA. That’s
it.” (Ex. G at 2 (emphasis added).)
• On March 12, 2011, after the NFLPA purported to decertify, Jeff
Saturday, the Vice-President of the NFLPA, stated in a radio interview:
“From the players’ perspective if we are going to negotiate this out and
be locked out with a CBA expiration, then it would be much better to be
… negotiating while we’re still playing football. … [T]hat was the
reason that we decertified. We decertified so that we could fight them
from locking us out and go back to work. And we feel like … we can
still negotiate this anytime you want.” (Ex. H at 11-12 (emphases
added).)
• On March 18, 2011, plaintiff Mike Vrabel, a member of the NFLPA
Executive Committee, was interviewed by ESPN—along with four
other members of the Executive Committee, including plaintiff Drew
Brees—and made clear that, notwithstanding its purported disclaimer,
the NFLPA still wants to negotiate terms and conditions of
employment on behalf of the players: “We are willing to negotiate. ...
But our executive committee needs to negotiate with ... their executive
committee. People that are willing and can agree to a deal.” (Ex. I at 1
(emphases added).)
The NFLPA Guide to the Lockout, distributed by the Union to its
player-members weeks ago, well in advance of both the Union’s purported
disclaimer and the CBA’s expiration, explains this strategy explicitly: “The
-8-

NFLPA ... would fund litigation with individual players, or classes of players,
as named plaintiffs, just as we did in the McNeil and White cases. We would
immediately fund a lawsuit which would seek an injunction … and … claim
treble damages on behalf of the players.” (Ex. J at 45 (emphasis added).)
This is precisely what has happened.
In light of the mountain of evidence demonstrating that the NFLPA
had long been planning a tactical disclaimer, not one that is unequivocal and
in good faith, the NFL filed a charge with the NLRB on February 14, 2011,
asserting that the NFLPA had violated its statutory obligation imposed by
the National Labor Relations Act (“NLRA”) to bargain in good faith. (Ex. K.)
The NFL has amended the charge to assert that the Union’s purported
“disclaimer” is invalid because it violates the NLRA. (Ex. L.) Proceedings
before the Board are ongoing.
ARGUMENT

I.

The Norris-LaGuardia Act Divests this Court of Jurisdiction to Grant
the Requested Injunctive Relief.
Plaintiffs’ request for a preliminary injunction fails at the threshold. In

Section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104(a), Congress stripped
federal courts of jurisdiction to enjoin work stoppages: “No court of the
United States shall have jurisdiction to issue any restraining order or
temporary or permanent injunction in any case involving or growing out of

-9-

any labor dispute to prohibit any person or persons participating … in such
dispute from doing … any of the following acts: (a) Ceasing or refusing to
perform any work or to remain in any relation of employment.”
Section 4 “forbids courts to enjoin work stoppages in any case involving
or growing out of any labor dispute.” W. Gulf Maritime Ass’n v. ILA Deep

Sea Local 24, 751 F.2d 721, 726 (5th Cir. 1985) (emphases added).
That plaintiffs have sued under the antitrust laws is irrelevant.
Section 5 of the Act, 29 U.S.C. § 105, expressly provides that the removal of
jurisdiction extends to injunctions sought under the antitrust laws: “No court
of the United States shall have jurisdiction to issue a restraining order or
temporary or permanent injunction upon the ground that any of the persons
participating or interested in a labor dispute constitute or are engaged in an
unlawful combination or conspiracy because of the doing in concert of the acts
enumerated in section 104 of this title.”
The Act was meant to “end the granting of injunctions … based upon
complaints charging conspiracies to violate the Sherman Antitrust Act.” Milk

Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Prods., 311 U.S.
91, 101 (1940). It “has been interpreted broadly as a statement of
congressional policy that the courts must not use the antitrust laws as a
vehicle to interfere in labor disputes.” H.A. Artists & Assocs., Inc. v. Actors’

Equity Ass’n, 451 U.S. 704, 714 (1981).
- 10 -

A.

This case “involves” and “grows out of” a “labor dispute.”

Section 4 applies to plaintiffs’ motion because this case both “involves”
and “grows out of” a “labor dispute.” 29 U.S.C. § 104(a). The Act defines
“labor dispute” broadly to include “any controversy concerning terms or
conditions of employment.” 29 U.S.C. § 113(c) (emphasis added). Congress
underscored the breadth of the term by extending the bar on injunctive relief
not only to cases “involving” such disputes, but also to cases “growing out of”
such disputes. Id. §§ 104, 113(a). Congress “wanted [these terms] to be
broad” and the Supreme Court has “consistently declined to construe [them]
narrowly.” Burlington N. R.R. Co. v. Bhd. of Maint. of Way Emps., 481 U.S.
429, 441-42 (1987); see also Jacksonville Bulk Terminals, Inc. v. Int’l

Longshoremen’s Ass’n, 457 U.S. 702, 708 (1982) (“This Court has consistently
given the anti-injunction provisions of the [Act] a broad interpretation ….”);

Powell v. NFL, 690 F. Supp. 812, 814 (D. Minn. 1988).
A case “involve[s]” or “grow[s] out of” a labor dispute when, inter alia,
“the case involves persons who are engaged in the same industry” and the
dispute 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).
These terms also are meant to be construed broadly. See Jacksonville Bulk,
457 U.S. at 711-12; Powell, 690 F. Supp. at 814.

- 11 -

The lockout challenged here “involves or grows out of” a “labor dispute”
under any common-sense meaning of those terms. The NFL member clubs
imposed the lockout as part of a dispute with their player-employees over the
terms and conditions of their employment. Plaintiffs and the NFL clubs are
“engaged in the same industry” (professional football), and the dispute is
between “one or more employers” (the NFL clubs) and “one or more
employees” (the players). Plaintiffs contend that the purpose of the lockout is
to coerce the clubs’ player-employees to agree to new terms and conditions of
employment such as those that had been proposed to the Union in collective
bargaining. (Compl. ¶¶3, 53.) See, e.g., Plumbers & Steamfitters Local 598

v. Morris, 511 F. Supp. 1298, 1311 (E.D. Wash. 1981) (“The complaint itself
contends that the lockout occurred as a means to force concessions to terms in
negotiation of a collective bargaining agreement. It is clear this case grows
out of a labor dispute as defined in the Norris-LaGuardia Act.”).
B.

The NFLPA’s purported “disclaimer” does not affect
the withdrawal of jurisdiction.

Section 4 of the Norris-LaGuardia Act applies regardless of whether or
not plaintiffs are represented by a union. The Act applies to disputes
between employers and “employees or associations of employees.” 29 U.S.C.
§ 113(a) (emphasis added). The Supreme Court has explained that the Act is

- 12 -

triggered simply by “disputes affecting the employer-employee relationship.”

Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 145 (1942). 3
Accordingly, courts have found that the Act bars injunctions in cases in
which no union is involved at all. See, e.g., New Negro Alliance v. Sanitary

Grocery Co., 303 U.S. 552, 559-60 (1938) (dispute between employer and
nonlabor organization over nondiscriminatory conditions of employment is a
labor dispute covered by the Act); Burlington N. Santa Fe Ry. Co. v. Int’l Bhd.

of Teamsters Local 174, 203 F.3d 703, 709 n.6 (9th Cir. 2000) (en banc)
(“Owing to this broad definition [of ‘labor dispute’], the Supreme Court has
found the term ‘labor dispute’ to capture a wide range of controversies,”
including “a dispute between an employer and a nonlabor organization”
(citing New Negro Alliance)).
The NFLPA’s purported disclaimer also does nothing to change the

origins of this action. This suit indisputably “grow[s] out of” a labor dispute:
plaintiffs are suing to enjoin the League from exercising a labor law right in
support of its position in negotiations over terms and conditions of
employment; the lawsuit was filed only hours before the CBA was scheduled

Plaintiffs request an injunction pursuant to Federal Rule of Civil Procedure
65. But that Rule expressly does not “modify ... any federal statute relating
to temporary restraining orders or preliminary injunctions in actions
affecting employer or employee.” Fed. R. Civ. P. 65(e)(1) (emphasis added).
3

- 13 -

to expire, and only minutes after the Union had walked away from federallysupervised negotiations regarding terms and conditions of employment; and
the suit seeks damages for the member clubs’ continued adherence to the

status quo ante terms and conditions of employment.
C.

The Norris-LaGuardia Act bars injunctions against
strikes and lockouts alike.

Section 4(a) of the Act prohibits injunctions against both strikes and
lockouts, including in cases brought by employees challenging a lockout
under the antitrust laws. See, e.g., Chi. Midtown Milk Distribs. v. Dean

Foods Co., 1970 WL 2761 (7th Cir. July 9, 1970).
As the Seventh Circuit explained, “regardless of plaintiffs’ complaint
charging an antitrust violation [as a result of a lockout] and any factual merit
to their claim, this is a case involving or growing out of a labor dispute within
the meaning of the Norris-LaGuardia Act... . Therefore, the federal district
court is precluded by law from issuing ‘any restraining order or temporary or
permanent injunction.’” Id. at *1; see also Plumbers & Steamfitters, 511 F.
Supp. at 1311 (“It is clear this [lockout] grows out of a labor dispute as
defined in the Norris-LaGuardia Act ... . That Act removes the jurisdiction of
the Court to issue an injunction in such a case. 29 U.S.C. § 104.”).
If any more confirmation that the Norris-LaGuardia Act applies to
lockouts were needed, the Labor Management Relations Act of 1947

- 14 -

(“LMRA”) provides it. The LMRA authorizes the President of the United
States to initiate procedures to enjoin “a threatened or actual strike or

lockout affecting an entire industry or a substantial part thereof” if the
President determines that the strike or lockout would “imperil the national
health or safety.” 29 U.S.C. § 176 (emphasis added). To prevent a conflict in
federal law, the LMRA expressly provides that the Norris-LaGuardia Act
does not apply when the President directs the Attorney General to petition a
federal court for such an injunction. See 29 U.S.C. § 178(b). By carving out a
narrow category of presidentially-initiated injunctions against strikes or

lockouts that imperil national health or safety, Congress confirmed in the
LMRA that the anti-injunction provisions of the Norris-LaGuardia Act
otherwise apply to both strikes and lockouts.
Thus, plaintiffs’ contention that a preliminary injunction would “not
undermine any labor policy set forth in the [Norris-LaGuardia] Act” (Pls.’
Mem. 27), is simply wrong. As the authorities cited above confirm, the Act
prohibits injunctions against employer lockouts and employee strikes alike
because the policy underlying the Act opposes “federal court intervention in
private labor disputes.” In re Dist. No. 1-Pac. Coast Dist. Marine Eng’rs

Beneficial Ass’n (AFL-CIO), 723 F.2d 70, 75 (D.C. Cir. 1983); see also S. Rep.
No. 163, 72 Cong., 1st Sess. 19 (1932) (“The same rule throughout the bill,
wherever it is applicable, applies to both employers and employees.”).
- 15 -

*

*

*

*

In sum, the injunction sought by plaintiffs here is precisely the kind of
relief that Congress barred by enacting the Norris-LaGuardia Act. 4 See H.A.

Artists, 451 U.S. at 714 (“[T]he courts must not use the antitrust laws as a
vehicle to interfere in labor disputes.”); Marine Cooks & Stewards, AFL v.

Pan. S.S. Co., 362 U.S. 365, 370 (1960) (“Congress was intent upon taking the
federal courts out of the labor injunction business ... .”); Bhd. of R.R.

Trainmen v. Chi. River & Ind. R.R. Co., 353 U.S. 30, 40 (1957) (the Act was
intended “to prevent the injunctions of the federal courts from upsetting the
natural interplay of the competing economic forces of labor and capital”).
Plaintiffs’ motion thus fails at the jurisdictional threshold. The Court
need not—indeed, should not—go any further in rejecting the request for
injunctive relief.
In Jackson v. NFL, 802 F. Supp. 226, 235 (D. Minn. 1992), Judge Doty
temporarily enjoined the NFL’s then-existing free agency rules. That case
did not involve a strike or lockout and therefore did not implicate the
mandatory prohibition of Section 4. See Chi. Rock Is. & Pac. R.R. Co. v.
Switchmen’s Union of N. Am., 292 F.2d 61, 62 (2d Cir. 1961) (“Section 4 is a
flat prohibition of certain types of injunctive orders.”); Camping Constr. Co. v.
Dist. Council of Iron Workers, 915 F.2d 1333, 1341 (9th Cir. 1990) (Section 4
“sets forth a list of specific acts against which the federal courts may under
no circumstances issue an injunction” (emphasis added)).
4

Of course, Jackson was also decided prior to the Supreme Court’s decision
in Brown and at a time when there were no proceedings pending before the
NLRB addressing the representational status of the Union or the duration of
the nonstatutory labor exemption. (See pages 17-39, infra.)

- 16 -

II.

Resolution of Plaintiffs’ Suit Requires Determination of Issues Within
the Primary Jurisdiction of the NLRB.
Separate and apart from the lack of jurisdiction under the Norris-

LaGuardia Act, this Court could not grant plaintiffs’ request for a
preliminary injunction without considering whether the nonstatutory labor
exemption protects the NFL’s conduct from antitrust challenge. And it
cannot consider that issue without first determining (1) whether the
NFLPA’s purported disclaimer is valid and effective and, if so, (2) whether
such disclaimer immediately ended the exemption’s applicability.
The first question—the validity of the disclaimer—is unquestionably
within the NLRB’s primary jurisdiction. “The labor laws give the Board, not
antitrust courts, primary responsibility for policing the collective-bargaining
process.” Brown, 518 U.S. at 242. The Board is already considering an
unfair labor practice charge that raises the threshold labor-law issue of the
validity of the Union’s purported disclaimer. The doctrine of primary
jurisdiction requires this Court to stay plaintiffs’ suit pending the outcome of
those Board proceedings.
In addition, the conditional follow-on question—whether, if the Union’s
disclaimer is valid under the labor laws, at what point thereafter it “could”
extinguish the labor exemption—also could not be answered in plaintiffs’
favor without the “detailed views of the Board.” Id. at 250.

- 17 -

A.

The primary jurisdiction doctrine requires courts to stay
actions that implicate issues falling within the specialized
knowledge of the NLRB.

“The doctrine of ‘Primary Jurisdiction’ requires [a] court to suspend the
proceedings before it and refer the matter to an administrative body
whenever enforcement of a judicial claim requires the resolution of issues
which, under a regulatory scheme, have been placed within the special
competence of that administrative body.” Gale v. Norwesco, Inc., 1990 WL
284504, at *3 (D. Minn. Dec. 11, 1990) (citing United States v. W. Pac. R.R.

Co., 352 U.S. 59, 63-64 (1956)). The doctrine has particular force when, as in
this case, the issues implicate “the expert and specialized knowledge of the
agencies.” W. Pac. R.R., 352 U.S. at 64.
Under the primary jurisdiction doctrine, federal courts generally do not
have jurisdiction over activity that is “arguably subject to” Sections 7 and 8 of
the NLRA, 29 U.S.C. §§ 157, 158, and they “must defer to the exclusive
competence of the National Labor Relations Board.” San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 245 (1959). Only after the Board has
determined whether conduct is permissible under these Sections may a court
entertain claims requiring assessment of such conduct. Id. at 244-45.
The primary jurisdiction doctrine applies in full force to requests for
preliminary injunctive relief. An injunction prior to adjudication by the
agency “may indicate what the court believes is permitted by [the agency’s]
- 18 -

policy, prior to an expression by the [agency] of its view. This is precisely

what the doctrine of primary jurisdiction is designed to avoid.” Atchison,
Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 821 (1973)
(emphasis added) (reversing grant of injunctive relief) (plurality op.); see also,

e.g., Newspaper Guild of Salem v. Ottaway Newspapers, Inc., 79 F.3d 1273,
1283 (1st Cir. 1996) (affirming denial of preliminary injunction because case
raised representational issues within the NLRB’s primary jurisdiction).
To be sure, in certain circumstances, courts will “decide labor law
questions that emerge as collateral issues in suits brought under independent
federal remedies.” Connell Constr. Co. v. Plumbers & Steamfitters Local

Union No. 100, 421 U.S. 616, 626 (1975); see also Kaiser Steel Corp. v.
Mullins, 455 U.S. 72, 85 (1982). But, as discussed below, the labor law
questions here are threshold predicates—not collateral issues—to this suit.
B.

Plaintiffs’ antitrust suit rests on a predicate issue that falls
squarely within the primary jurisdiction of the NLRB.

The validity of the Union’s purported disclaimer is a fundamental,
threshold issue in this lawsuit. Plaintiffs expressly predicate their Sherman
Act claims on two related assertions: First, that the collective bargaining
relationship between the parties to this case ended instantaneously at 4:00
p.m. on March 11, 2011, when, eight hours before the 2006 CBA expired and
during negotiations for a successor agreement, the NFLPA purported to

- 19 -

disclaim interest in representing its members in collective bargaining; and

second, that the NFLPA’s purported disclaimer instantly extinguished the
nonstatutory labor exemption and thereby converted the NFL member clubs’
decision to lock out from a valid exercise of their labor law rights into an
antitrust violation. (Compl. ¶¶54-62, 79; Pls.’ Mem. 9-10, 25-26.)
These predicates raise fundamental questions that go to the heart of
multiemployer bargaining and federal labor law and policy.
The Court could not find the labor exemption inapplicable without
intruding upon the Board’s primary jurisdiction because the validity of the
NFLPA’s disclaimer itself is a threshold issue implicating the National Labor
Relations Act. See, e.g., Garmon, 359 U.S. at 244-45; Minn-Dak Farmers Co-

op Emps. Org. v. Minn-Dak Farmers Co-op. Emps. Org., 3 F.3d 1199, 1201
(8th Cir. 1993) (declining to exercise jurisdiction because the NLRB “has
exclusive jurisdiction to decide questions concerning representation”); NLRB

v. Columbia Tribune Publ’g Co., 495 F.2d 1385, 1389 (8th Cir. 1974) (“The
determination that a party has failed to bargain in good faith must, in the
first instance, be made by the National Labor Relations Board.”). The
Board’s claim to primary jurisdiction is at its zenith in cases, like this case,
that involve a pending Board matter arising from the same labor dispute and
affecting the same employers and employees.

- 20 -

Indeed, the question whether the NFLPA remains a collectivebargaining representative is fundamental to determining numerous rights
and responsibilities of the parties under the labor laws. It is therefore a core
labor-law question that demands uniform resolution by the expert agency. If
this Court were to enter an injunction reflecting its view that the Union has
validly disclaimed, but the NLRB were to determine otherwise and issue an
order compelling the Union to return to the collective bargaining table as the
players’ representative, all parties to this controversy would find themselves
in an untenable position.
Under the NLRA, a union’s disclaimer of interest in collective
bargaining is effective only if it was “unequivocal” and “made in good faith.”

Int’l Bhd. of Elec. Workers, AFL-CIO & Local 159 (Texlite, Inc.), 119 NLRB
1792, 1798-99 (1958), enf’d 266 F.2d 349 (5th Cir. 1959). Disclaimers are
made in bad faith—and are therefore ineffectual and invalid—when they are
done as a “tactical maneuver,” id. at 1799, or when the disclaimer was
“obviously employed only as a measure of momentary expedience, or strategy
in bargaining,” Retail Assocs, Inc., 120 NLRB 388, 394 (1958).
With respect to good faith, the Board will undoubtedly recognize that
the Union’s purported disclaimer is not motivated by a desire to abandon
unionism permanently. Nor does it reflect dissatisfaction with the leadership
or direction of the NFLPA; to the contrary, the membership some time ago
- 21 -

authorized their leadership to purport to abandon collective bargaining if it
deemed such a step advantageous. (Compl. ¶¶54-55.) That fact—as well as
the fact that the membership continues to stand with its leaders—confirms
their continuing confidence in their Union.
With respect to the disclaimer being “unequivocal,” the Board will also
understand that with the NFLPA, past is prologue. Its purported disclaimer
today does not mean that it will not collectively bargain in the future.
Indeed, when asked directly at a press conference, “if you … do decertify, do
you see it as a being a lasting decertification or do you see yourselves reforming in some way, shape or form,” the Executive Director of the NFLPA,
DeMaurice Smith, equivocated: “I don’t have a crystal ball. And if I had one,
it probably wouldn’t work.” (Ex. M at 7.) And immediately after the NFLPA
purported to disclaim, Mr. Smith told the press, “we’ll be back.” (Ex. N at 5.) 5
In short, the Board will likely conclude that the NFLPA has not
engaged in the good faith, unequivocal renunciation that the NLRA requires,

That the Union has purported to rebrand itself as a “trade association” is of
no moment. A group is a “labor organization” under the NLRA if employeemembers participate in it, and if it exists, at least in part, to “deal[] with
employers concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.” 29 U.S.C. § 152(5). As members of the
NFLPA’s executive committee have stated post disclaimer, the NFLPA
intends to “continue to negotiate” with the NFL about terms and conditions of
NFL player employment while this lawsuit proceeds. (Exs. H, I.)

5

- 22 -

and it likely will issue an order requiring the Union to resume collective
bargaining negotiations with the NFL member clubs. 6
In addition, recognizing the need for stability in the collective
bargaining process, the Board has also held that neither labor nor
management may withdraw unilaterally from multiemployer bargaining once
negotiations begin absent “mutual consent” or “unusual circumstances.”

Charles D. Bonanno Linen Serv., Inc., 243 NLRB 1093, 1093 (1979), enf’d 630
F.2d 25 (1st Cir. 1980), aff’d 454 U.S. 404 (1982).
The Board must determine whether the NFLPA’s tactical “disclaimer”
is sufficient to meet this standard. See, e.g., Detroit Newspaper Publ’rs Ass’n

v. NLRB, 372 F.2d 569, 571 (6th Cir. 1967) (“[T]he Board could with propriety
inquire into the good faith of withdrawals and whether they are harmful to
either party, particularly where, as here, the unit has been in existence and
has operated satisfactorily for so many years.”); id. at 572 (“[I]t must be
equally clear that a virtually unfettered [union] right of withdrawal ... might
also destroy the attractiveness of [multiemployer bargaining]. The Board

For example, the Board has previously rejected informal membership
“votes” to terminate a union’s labor organization status when the “votes”
were part of a bad-faith strategy to achieve a preferable collective bargaining
agreement. See News-Press Publ’g Co., 145 NLRB 803, 804-05 (1964).

6

- 23 -

might well find that the instability resulting from such conditions had
undermined the multiemployer unit as an effective tool of labor relations.”).
To determine whether plaintiffs have a likelihood of success on the
merits, the Court would have to assess whether the NFLPA’s disclaimer was
made in good faith and intended to be unequivocal, or whether it instead was
undertaken for tactical reasons, and is therefore invalid, as the evidence
discussed above strongly suggests. The Court would also have to assess
whether the NFLPA’s tactical withdrawal from multiemployer bargaining
was justified by “unusual circumstances.” But these inquiries fall squarely
within the specialized knowledge, expertise, and primary jurisdiction of the
Board. See Garmon, 359 U.S. at 244-45; Columbia Tribune, 495 F.2d at
1389.
In these circumstances, the primary jurisdiction doctrine “transfers
from court to agency the power to” resolve these issues. W. Pac. R.R., 352
U.S. at 65. The Court must therefore stay this action pending resolution of
the previously-initiated Board proceedings. See Reiter v. Cooper, 507 U.S.
258, 268 (1993). Cf. Powell v. NFL, 678 F. Supp. 777, 789 (D. Minn. 1988)
(staying determination of applicability of antitrust laws pending NLRB
determination of bad faith bargaining charge).
In short, this is a paradigmatic case for deferring to the Board’s
specialized expertise as required by the doctrine of primary jurisdiction.
- 24 -

Indeed, when a party “has already brought [its] complaint to the NLRB”—as
the NFL has done here—the rationale underlying the primary jurisdiction
doctrine “‘has its greatest validity’” “‘because the risk of interference with the
Board’s jurisdiction is ... obvious and substantial’ ... .” Cormier v. Simplex

Techs., Inc., 1999 WL 628120, at *3 (D.N.H. Mar. 4, 1999) (quoting first Platt
v. Jack Cooper Transp. Co., 959 F.2d 91, 95 (8th Cir. 1992), and second Local
926, Int’l Union of Operating Eng’rs v. Jones, 460 U.S. 669, 683 (1983)). 7
The situation here is therefore wholly unlike the contract-enforcement
cases of Connell and Kaiser, which involved challenges to the legality of “hot
cargo” provisions (which obligate an employer to cease doing business with,
or to stop handling the goods of, another employer). Such agreements are
expressly deemed void ab initio under Section 8(e) of the NLRA (29 U.S.C.
§ 158(e)) and may therefore be prohibited by federal courts without the need
Plaintiffs rely on Judge Doty’s decision in McNeil (sub nom. Powell) v. NFL,
764 F. Supp. 1351 (D. Minn. 1991). There, where the primary jurisdiction
doctrine was not even addressed by the court, Judge Doty determined that
the NFLPA’s purported 1989 disclaimer had terminated the nonstatutory
labor exemption. Id. at 1358-59. Judge Doty recognized, however, that the
merits of that determination presented a “controlling question of law on
which there is substantial ground for difference of opinion.” Id. at 1360.

7

Given the current pendency of NLRB proceedings addressing the validity
of the NFLPA’s second purported disclaimer—as well as the Eighth Circuit’s
holding in Powell v. NFL that “until final resolution of Board proceedings and
appeals therefrom, the labor relationship continues and the [nonstatutory]
labor exemption applies,” 930 F.2d 1293, 1303-04 (8th Cir. 1989)—the McNeil
decision on the nonstatutory labor exemption has no application here.

- 25 -

to defer to Board proceedings. See, e.g., Teamsters Local Union 682 v. KCI

Constr. Co., 384 F.3d 532, 537, 540-41 (8th Cir. 2004). Here, whether the
plaintiff-employees have an antitrust cause of action against their employers
cannot be determined without the Board’s resolution of the fundamental,
predicate labor law issues falling directly within its specialized expertise.
*

*

*

*

The validity of the Union’s purported disclaimer is not the only issue in
this case that the NLRB must address. The Supreme Court in Brown held
that courts must also consider the “specialized judgment” of the Board when
determining whether, and if so when, an agreement among members of a
multiemployer bargaining unit may no longer be protected by the
nonstatutory labor exemption and subject to antitrust scrutiny:
[A]n 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. See, e.g., [Brown v. Pro
Football, Inc.], 50 F.3d [1041] at 1057 [(D.C. Cir. 1995)]
(suggesting that the exemption lasts until collapse of the
collective-bargaining relationship, as evidenced by decertification
of the union); El Cerrito Mill & Lumber Co., 316 NLRB [1005] at
1006-07 [(1995)] (suggesting that “extremely long” impasse,
accompanied by “instability” or “defunctness” of multiemployer
unit, might justify union withdrawal from group bargaining). We
need not decide in this case whether, or where, within these
extreme outer boundaries to draw that line. Nor would it be

appropriate for us to do so without 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.
- 26 -

518 U.S. at 250 (emphasis added).
Thus, contrary to plaintiffs’ assertion (Mem. 25), the Supreme Court
has not held that the nonstatutory labor exemption “ceases to be available”
the instant “a collective bargaining representative is no longer in existence.”
In fact, it has held to the contrary and made clear that a court should not
make that determination absent the views of the NLRB. (Cf. Compl. ¶ 80
(quoting the start of the passage from Brown reprinted above, but omitting
the remainder beginning with “We need not decide …”).
Accordingly, and as discussed more fully below, even if the Union’s
purported disclaimer is valid under the labor laws—an issue that the Board
and the Board alone must decide first—the Court would then have to decide
whether Brown’s “sufficiently distant in time and in circumstances” standard
has been satisfied such that the exemption no longer applies. And, as the
Supreme Court held, this Court could not find the exemption inapplicable
“without the detailed views of the Board.” 518 U.S. at 250.
As the Board is now considering that very question—which would be
moot if the Union’s purported disclaimer is found by the Board to be invalid—
the Court should defer ruling on plaintiffs’ motion until such time as all
proceedings before the Board have been completed.

- 27 -

III.

Plaintiffs Cannot Meet Their Heavy Burden of Proving that
Preliminary Injunctive Relief is Warranted.
As noted above, there are two threshold, independent, jurisdictional

reasons why this Court cannot grant the requested injunction. But even if
the Court were to apply the familiar four-factor test, it is clear that an
injunction should not issue. “[A] preliminary injunction is an extraordinary
and drastic remedy, one that should not be granted unless the movant, by a

clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520
U.S. 968, 972 (1997).
“[W]hether a preliminary injunction should issue involves consideration
of (1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that [the] movant will succeed on the
merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 114 (8th Cir. 1981) (en banc). None of these factors favors
plaintiffs.
A.

Plaintiffs cannot show a likelihood of success on the merits.

Likelihood of success on the merits is the “‘most significant’ Dataphase
factor.” Anytime Fitness, Inc. v. Family Fitness of Royal, LLC, 2010 WL
145259, at *3 (D. Minn. Jan. 8, 2010) (quoting S & M Constructors, Inc. v.

Foley Co., 959 F.2d 97, 98 (8th Cir. 1992)). Absent likelihood of success,

- 28 -

“there is little justification for granting a preliminary injunction.” CDI

Energy Servs., Inc. v. W. River Pumps, Inc., 567 F.3d 398, 402 (8th Cir.
2009).
Plaintiffs cannot show a likelihood of success on the merits because,
notwithstanding the NFLPA’s purported disclaimer, the challenged lockout is
protected from antitrust scrutiny by the nonstatutory labor exemption.
1.

The nonstatutory labor exemption protects
lockouts by multiemployer bargaining units.

Federal labor law favors and encourages collective bargaining. See

Brown, 518 U.S. at 236; Anderson v. Ford Motor Co., 803 F.2d 953, 955 (8th
Cir. 1986). Under federal labor law, “[m]ultiemployer bargaining ... is a wellestablished, important, pervasive method of collective bargaining, offering
advantages to both management and labor.” Brown, 518 U.S. at 240.
Multiemployer bargaining requires employers to agree on collective
bargaining objectives, strategy, planning, and implementation, including
whether (and if so, how) to exercise rights under the federal labor laws,
including whether to implement a lockout.
A lockout—“[a]n employer’s withholding of work ... because of a labor
dispute,” Black’s Law Dictionary 1024 (9th ed. 2009)—is a lawful, protected
economic tool of good faith collective bargaining. See Lodge 76, Int’l Ass’n of

Machinists v. Wisc. Emp’t Relations Comm’n, 427 U.S. 132, 147 (1976)

- 29 -

(“Resort to economic weapons should more peaceful measures not avail is the
right of the employer as well as the employee.”); Powell v. NFL, 930 F.2d
1293, 1302 (8th Cir. 1989) (a lockout is one of the “economic and legal …
tools” that employers may use in a labor dispute); NBA v. Williams, 45 F.3d
684, 689 (2d Cir. 1995) (Congress approved of multiemployer lockouts).
Because federal labor policy encourages multiemployer bargaining, the
nonstatutory labor exemption insulates from antitrust scrutiny certain
decisions of multiemployer bargaining units that might otherwise be deemed
anticompetitive or in violation of the antitrust laws. See Brown, 518 U.S. at
237 (“[T]he implicit [i.e., nonstatutory labor] exemption recognizes that, to
give effect to federal labor laws and policies and to allow meaningful
collective bargaining to take place, some restraints on competition imposed
through the bargaining process must be shielded from antitrust sanctions.”).
The exemption is designed to keep “instability and uncertainty [from
entering] into the collective-bargaining process,” id. at 242, and reflects
Congress’s intent “to prevent judicial use of antitrust law to resolve labor
disputes—a kind of dispute normally inappropriate for antitrust law
resolution,” id. at 236. Accordingly, “employees confronted with actions
imposed lawfully through the collective bargaining process must respond not

with a lawsuit brought under the Sherman Act, but rather with the weapons

- 30 -

provided by the federal labor laws.” Brown v. Pro Football, Inc., 50 F.3d
1041, 1045 (D.C. Cir. 1995) (emphasis added), aff’d, 518 U.S. 231 (1996).
2.

The exemption continues to apply until the challenged
conduct is sufficiently distant in time and in
circumstances from the collective bargaining process.

Plaintiffs contend that the Union’s purported disclaimer—undertaken
in the waning hours of the 2006 CBA and literally during a multiemployer
collective bargaining session—instantly terminated the nonstatutory labor
exemption. As a result, plaintiffs assert, the lockout is unprotected by the
exemption and plaintiffs are entitled to an injunction under the Sherman Act.

Brown forecloses this argument.
In Brown, the NFLMC and the NFLPA had bargained to impasse over
compensation for developmental squad players. See 518 U.S. at 234-35. The
NFL clubs then unilaterally implemented their last offer. (The right to
implement at impasse its last good faith offer, like the right to lock out, is one
of the economic tools afforded an employer under the labor laws. See id. at
238.) In response, players funded by the NFLPA filed a class action antitrust
suit claiming that the clubs’ agreement on the terms reflected in the offer
violated Section 1 of the Sherman Act. Id. at 235.
The Court started with the premise that multiemployer bargaining

requires agreements that would otherwise contravene the antitrust laws:
“[I]t would be difficult, if not impossible, to require groups of employers and
- 31 -

employees to bargain together, but at the same time to forbid them to make
among themselves or with each other any of the competition-restricting
agreements potentially necessary to make the process work or its results
mutually acceptable.” Id. at 237.
The Court went on to hold that the nonstatutory labor exemption
protected the conduct at issue, which “took place during and immediately
after a collective-bargaining negotiation” and which “grew out of, and was
directly related to, the lawful operation of the bargaining process.” Id. at 250.
In so holding, the Court emphasized the untenable, Catch-22 situation
that employers engaged in multiemployer collective bargaining (which the
labor law favors) would confront if antitrust liability applied at impasse:
If the antitrust laws apply, what are employers to do once
impasse is reached? If all impose terms similar to their last joint
offer, they invite an antitrust action premised upon identical
behavior ... as tending to show a common understanding or
agreement. If any, or all, of them individually impose terms that
differ significantly from that offer, they invite an unfair labor
practice charge. Indeed, how can employers safely discuss their
offers together even before a bargaining impasse occurs? A
preimpasse discussion about, say, the practical advantages or
disadvantages of a particular proposal invites a later antitrust
claim that they agreed to limit the kinds of action each would
later take should an impasse occur. The same is true of
postimpasse discussions aimed at renewed negotiations with the
union ... . All of this is to say that to permit antitrust liability

here threatens to introduce instability and uncertainty into the
collective-bargaining process, for antitrust law often forbids or
discourages the kinds of joint discussions and behavior that the
collective-bargaining process invites or requires.

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Id. at 241-42 (emphases added).
The same Catch-22 presented by an impasse—or an impending
impasse—would confront the members of a multiemployer bargaining unit if
a union representing their employees disclaimed interest—or threatened to
disclaim interest—during or immediately in the wake of collective
bargaining. 8
Indeed, plaintiffs’ complaint points to proposals made during collective

bargaining as demonstrating an anticompetitive intent sufficient to justify an
antitrust claim. (See, e.g., Compl. ¶¶3, 53.) By seeking to subject to antitrust
scrutiny proposals made in collective bargaining—as well as terms to which
the parties had previously agreed in collective bargaining—plaintiffs aim to
put the members of the NFL multiemployer bargaining unit in a posture
where they risk antitrust liability for conduct undertaken, planned, or even
discussed as part of the collective bargaining process.
The circumstances here therefore raise concerns of the very same kind
identified by the Supreme Court in the context of impasse—concerns about
instability and uncertainty arising from the antitrust risks that the members

Although Brown dealt with terms imposed at impasse rather than a
lockout, the Court made clear that courts should look to the underlying
purposes of the nonstatutory labor exemption in determining whether it
applies. See 518 U.S. at 243 (relying on “the exemption’s rationale”).
8

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of the multiemployer bargaining unit would face by (1) maintaining the
status quo or (2) individually implementing (or even proposing common)
terms and conditions of employment, or (3), as demonstrated by plaintiffs’
complaint, exercising their rights under the labor laws. The common theme
of all of these concerns is the extent to which potential antitrust scrutiny
would frustrate federal labor law by inhibiting, deterring, and destabilizing
collective bargaining throughout the collective bargaining process, both after

and in anticipation of the triggering event, whether it be impasse or
disclaimer.
As the Supreme Court recognized in Brown, Congress has determined
that the labor laws trump the antitrust laws for a reason: because industrial
peace is best achieved by requiring parties to settle their differences at the
bargaining table rather than in an antitrust courtroom. See 518 U.S. at 237.
Thus, the Supreme Court has held that the purpose of the nonstatutory labor
exemption is to prevent instability and uncertainty from corrupting the
collective bargaining process—not only after negotiations have broken down,
but before. See id. at 242, 246.
To obviate the chilling effect that the threat of instantaneous antitrust
liability would have on multiemployer collective bargaining, the Supreme
Court held that the nonstatutory labor exemption continues to apply until
there has been a “sufficient[] distan[ce] in time and in circumstances from the
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collective-bargaining process that a rule permitting antitrust intervention
would not significantly interfere with that process.” Id. at 250.
The Court further held that it would be inappropriate for it—and
implicitly, for any other antitrust court—to find the labor exemption
inapplicable or to define the outer boundaries of what constitutes “sufficiently
distant in time and in circumstances” “without the detailed views of the
[National Labor Relations] Board.” Id. Indeed, the Court expressly refused
to decide that the exemption would expire immediately upon the “collapse of
the collective-bargaining relationship” and/or upon the decertification of a
union, recognizing that such a conclusion should not be reached without the
“detailed views of the Board.” Id.
In this respect, Brown’s holding reaffirms the correctness of the Eighth
Circuit’s earlier holding in Powell that “as long as there is a possibility that
proceedings may be commenced before the Board, or until final resolution of
Board proceedings and appeals therefrom, the labor relationship continues
and the [nonstatutory] labor exemption applies.” Powell, 930 F.2d at 130304. Both decisions, at bottom, are based on a fundamental recognition that
the labor laws cannot function effectively unless collective bargaining is given
significant room to operate, even after one side unilaterally asserts that the
bargaining relationship is over.

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3.

The exemption protects the challenged lockout
from antitrust scrutiny.

There can be no reasonable dispute that this case is about lawful
conduct taking “place during and immediately after a collective-bargaining
negotiation.” Brown, 518 U.S. at 250. The Union’s purported disclaimer
occurred before expiration of the CBA and while the parties were literally
still at the bargaining table negotiating terms and conditions of employment.
Nor can there be any question that the lockout “grew out of, and was directly
related to, the lawful operation of the bargaining process.” Id. And, given
the history of this Union and the evidence discussed above, plaintiffs cannot
make a clear showing that the collective bargaining relationship is, indeed,
actually over, let alone that it is not likely to be in full operation soon.
As noted, this Court should not accept plaintiffs’ contentions until the
Board has decided the issues pending before it. The NFL’s unfair labor
practice charge calls upon the Board to determine whether the Union’s
purported, strategic disclaimer and unilateral withdrawal from
multiemployer bargaining are valid under, or whether they violate, the
NLRA. Until the NLRB answers that question, the labor exemption
continues to apply. See Brown, 531 U.S. at 250; Powell, 930 F.2d at 1303-04.
Moreover, even if the Court did not let the Board’s proceedings unfold
before considering the merits of plaintiffs’ claims, there can be no serious

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contention here that the collective bargaining process is “sufficiently distant
in time and in circumstances” such that the labor exemption could not apply.
As for “distant in time,” the parties were at the bargaining table less than an
hour before the lawsuit was filed. As for “distant in circumstances,” both
past conduct and recent evidence underscore that this lawsuit is a Unionsponsored tactic to secure favorable terms and conditions of employment for
its members.
Plaintiffs’ only response is the argument that the NFLPA’s purported
disclaimer acted as a switch that turned the labor exemption off. But the
legitimacy of that disclaimer is the precise issue before the Board. Moreover,
the timing of that flip of the switch underscores the need for the labor
exemption to apply in this context. The Court should be especially wary of
finding that this situation is “sufficiently distant in time and in
circumstances” that the exemption no longer applies, given this Union’s
previous history of disclaimer followed by bargaining, and the multiple recent
statements of its leadership confirming that its purported disclaimer was an
interim step, undertaken for tactical reasons, in anticipation of reaching
another collective bargaining agreement.
Indeed, plaintiffs’ light switch theory is especially pernicious in the
context of professional sports leagues where, because of the need for common
rules establishing terms and conditions of player employment, multiemployer
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bargaining is essential. See Brown, 518 U.S. at 248-49 (“[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.”).
Even the threat of antitrust exposure following a union’s pre-expiration
disclaimer puts the member clubs of a professional sports league into
precisely the sort of untenable Catch-22 that the Court in Brown refused to
countenance. This case proves the point: If the exemption does not apply,
the NFL clubs will face potential antitrust claims regardless of whether they
(a) maintain their lockout, which has resulted in the claim now before the
Court, or (b) attempt to produce their joint product, which (as further
explained at pages 45-47, infra) undoubtedly will lead—and, indeed, already
has led—to additional antitrust claims because of the inherent need for
certain common terms and conditions of player employment.
Plaintiffs’ complaint seeks to bar the League from locking out the
players, but it also seeks antitrust damages on the ground that terms and
conditions of player employment—to which the plaintiffs’ Union had
previously agreed—are also violations of the Sherman Act. This is the
epitome of a Catch-22: Under plaintiffs’ theory, the NFL is subject to
antitrust liability if it ceases or refuses to continue football operations, and it

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is subject to antitrust liability if it does not. This “heads I win, tails you lose”
approach is not and cannot be the law.
Indeed, if the nonstatutory labor exemption does not apply, the NFL
clubs could not work together even to resolve the ongoing labor dispute
without risking antitrust liability. Federal labor law and policy encourage
members of a multiemployer bargaining unit to continue working together to
resolve any labor dispute, both before and after collective bargaining
agreements expire. Application of the exemption in these circumstances
furthers this purpose; abrogating the exemption at the tactical flip of a switch
would frustrate it.
Because neither plaintiffs nor the Union can demonstrate—either at
the NLRB or to this Court—that the Union’s purported disclaimer has
extinguished the nonstatutory labor exemption, the lockout should be
protected from antitrust scrutiny. See Brown, 518 U.S. at 235-37; Powell,
930 F.2d at 1304.
4.

Plaintiffs’ “waiver” argument lacks any merit.

Plaintiffs argue that Article LVII, Section 3(b) of the CBA (and the SSA
counterpart, Article XVIII, Section 5(b)) waives the NFL’s ability to oppose
their motion. That Section reads:

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[A]fter the expiration of the express term of this Agreement, in
the event that at that time or any time thereafter a majority of

players indicate that they wish to end the collective bargaining
status of the NFLPA on or after expiration of this Agreement, the
NFL ... waive[s] any rights [it] may have to assert any antitrust
labor exemption defense based upon any claim that the
termination by the NFLPA of its status as a collective bargaining
representative is or would be a sham, pretext, ineffective,
requires additional steps, or has not in fact occurred.

(emphases added) (Ex. O.)
By its own plain and unambiguous terms, the provision purports to
apply only when the players’ decision “to end the collective bargaining status
of the NFLPA” is made “at … or any time []after” the “express term” of the
CBA. 9 But here, it is undisputed that the Union’s (purported) disclaimer
occurred before the CBA expired; the premise of plaintiffs’ claim is that the
NFLPA’s “collective bargaining status” had already ended at expiration.
(Compl. ¶¶24, 54-61; Pls.’ Mem. 9 ¶¶1-2.) Accordingly, the predicate for
Section 3(b) is not met; the provision cannot apply.
Plaintiffs know this; their Union told its membership that it needed to
disclaim interest before expiration of the CBA to avoid application of the

Plaintiffs’ effort to distort the plain meaning of Section 3(b) through the
testimony of Messrs. Berthelsen and Upshaw is both futile and improper.
The CBA and SSA expressly prohibit the parties “in any proceeding or
otherwise” from “us[ing] or refer[ing] to any parol evidence with regard to the
interpretation or meaning of” Section 3(b) and most other provisions of the
Agreements. (CBA Art. LV, Sec. 19 (Ex. P); SSA Art. XXX, Sec. 7.)

9

- 40 -

companion Section 3(a)—an obvious quid pro quo to the “waiver” provision of
Section 3(b)—which provides that “if the NFLPA is in existence as a union
[following expiration of the CBA], the Parties agree that no ... player
represented by the NFLPA shall be able to commence an action, or assert a
claim under the antirust laws for” at least six months.
As the Union told its members, it was not willing to wait six months to
initiate its sponsored lawsuit. 10 Having made the tactical election to avoid
the six-month waiting period imposed by Section 3(a), neither the Union nor
the plaintiffs can attempt to invoke the companion waiver provision in
Section 3(b).
Even if the predicate for Section 3(b) were met, the provision itself is
void as against the established public policy, recognized by the Supreme
Court’s 1996 decision in Brown, that the labor laws, not the antitrust laws,
apply to the collective bargaining process. The waiver provision—which
purports to condone deliberate misrepresentation by the NFLPA and to let an
antitrust suit proceed even when the disclaimer is invalid—cannot be
The Union’s Guide to the Lockout, in a section authored by its General
Counsel, could not be more explicit: “Q. Can we remain a union after
expiration, see how collective bargaining goes, and then renounce our union
status later if collective bargaining doesn’t work? A. We could, but there are
… important reasons why we should not. First, the current CBA says that
we cannot sue for six months if we remain as a union at any time after
expiration.” (Ex. J at 45.)

10

- 41 -

enforced without contravening public policy. The waiver provision is
therefore void. See, e.g., Resolution Trust Corp. v. Home Sav. of Am., 946
F.2d 93, 97 (8th Cir. 1991); Restatement (Second) of Contracts § 178(1)
(1981); id. § 196 cmt. a, illus. 1.
In any event, Section 3(b) has no application to the NFL’s unfair labor
practice charge against the Union at the NLRB, which has to be resolved
first. (Any effort by the Union to limit the NFL’s rights before the Board
would be ineffective. See, e.g., Conoco, Inc., 287 NLRB 548, 559 (1987)
(waiver of right to seek redress with Board or courts is per se illegal and
unenforceable as contrary to public policy).)
And even if the waiver did preclude the NFL from arguing to the Court
the obvious—that the Union’s disclaimer is a sham—it would not limit the
NFL’s ability to argue that the nonstatutory labor exemption continues to
apply because the parties are not at a point “sufficiently distant in time and
in circumstances” such that the exemption would no longer be applicable.

Brown, 518 U.S. at 250.
B.

Plaintiffs will not suffer irreparable harm in the
absence of temporary injunctive relief.

Plaintiffs will not suffer irreparable harm if their motion is denied.
That itself is “a sufficient ground upon which to deny a preliminary
injunction.” CDI Energy Servs., 567 F.3d at 402-03.

- 42 -

To the extent that the antitrust laws apply, plaintiffs may assert claims
for treble damages that are more than adequate (trebly adequate) to remedy
any possible harm. See Rittmiller v. Blex Oil, Inc., 624 F.2d 857, 861 n.4 (8th
Cir. 1980) (“The availability of treble damage relief is an important
consideration ... weighing against granting an interlocutory injunction.”);

John Peterson Motors, Inc. v. Gen. Motors Corp., 613 F. Supp. 887, 905 (D.
Minn. 1985) (“Plaintiffs have their actions for damages so that their harm
cannot be said to be irreparable. And antitrust claims hold out the possibility
of treble damages.”). Plaintiffs’ treble damages claims are an adequate
remedy at law; they cannot demonstrate irreparable harm. See Gen. Motors

Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009).
Stated differently, the proper inquiry here is whether, assuming
plaintiffs’ claims are meritorious, plaintiffs would be irreparably harmed by a
period of (triply) paid leave—a period in which they will not face a risk of
“career-ending injury” (Pls.’ Mem. 11 ¶1) or any “wear and tear” (e.g., Condon
Decl. ¶12)? To ask that question is to answer it.
Plaintiffs’ contention that the lockout will deprive them of “contracted
for salaries … or bonuses” (Pls.’ Mem. 12 ¶2) does not alter the inquiry. Any
delay in the payment of salary or bonuses is obviously compensable in
monetary damages. “The temporary loss of income, ultimately to be
recovered, does not usually constitute irreparable injury.” Sampson v.
- 43 -

Murray, 415 U.S. 61, 90 (1974). Similarly, the fact that the jury found that
some of the McNeil plaintiffs had failed to prove monetary damages (Pls.’
Mem. 15 & n.3) does not demonstrate the absence of an adequate remedy at
law; it is simply evidence of a failure of proof by those individual plaintiffs.
Finally, plaintiffs’ assertion that they face immediate irreparable harm
in not being able to practice with or work out with their teammates lacks
merit when one considers that (i) it is the offseason; the start of training
camp is months away (Ruocco Decl. ¶10); (ii) plaintiffs Mankins and Jackson
intentionally skipped the entirety of their respective club offseason training
programs last year (id. ¶12); (iii) many players choose to work out on their
own in the offseason (id. ¶13); and (iv) many players, including many rookies,
historically have held out from training camps and other organized team
activities (id. ¶14). Indeed, many players have already made arrangements
to work out together under the Union’s supervision. (Id. ¶13 & Tab 2.)
Plaintiffs rely on cases concluding, based principally on theories of a
harm to reputation, a loss of ability to compete for postseason honors, or
damage to one’s career vis-à-vis other players, that professional athletes
would suffer “irreparable harm” without preliminary injunctive relief
permitting them to play in games. (See Pls.’ Mem. 15-16 & n.4 (citing, inter

alia, NFLPA v. NFL (“Starcaps”), 598 F. Supp. 2d 971, 982-83 (D. Minn.
2008) (involving suspensions of two players under the NFL’s steroid policy);
- 44 -

Jackson v. NFL, 802 F. Supp. 226, 230-31 (D. Minn. 1992) (involving a
challenge to “Plan B” free agency rules preventing some but not all players
from signing with other clubs); In re Haywood v. NBA, 401 U.S. 1204 (1971)
(Blackmun, J.) (in chambers) (staying injunction that would have prohibited
player from participating in the playoffs).) Such cases are inapposite here: no
player’s reputation suffers because of the lockout; no one player is
disadvantaged vis-à-vis others, as the lockout applies equally to all.
C.

The balance of harms favors the NFL.

Granting plaintiffs’ proposed injunction would cause considerably more
harm to the NFL than denying it would cause plaintiffs.
If this Court grants the requested injunction, the NFL member clubs
undoubtedly would be subject to additional antitrust claims. (See Ruocco
Decl. ¶5.) Plaintiffs’ complaint itself purports to challenge on antitrust
grounds terms and conditions of employment that are part of the status quo

ante established by the prior CBA. (Compl. ¶¶125-136.)
An order barring the lockout would effectively require the clubs to
produce their inherently joint and collective product, which in turn would
inevitably require the clubs to reach agreements with each other concerning
numerous terms and conditions of player employment. See Brown, 518 U.S.
at 248-49; Am. Needle, Inc. v. NFL, 130 S. Ct. 2201, 2216 (2010) (“The fact
that NFL teams share an interest in making the entire league successful and
- 45 -

profitable, and that they must cooperate in the production and scheduling of
games, provides a perfectly sensible justification for making a host of
collective decisions.”); Reynolds v. NFL, 584 F.2d 280, 287 (8th Cir. 1978)
(“Precise and detailed rules must of necessity govern how the sport is played
…. 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.”).
Necessary decisions designed to promote competitive balance on the
football field and enhance the quality of the League’s entertainment product
would expose the member clubs to treble-damage antitrust claims by players
contending that the decisions unreasonably restrain competition in a
purported market for player services; each suit would create a debilitating
cloud of legal uncertainty over NFL clubs (to say nothing of the unrecoverable
expense and burden of defending such suits). (Ruocco Decl. ¶¶4-5.)
In addition, an injunction would lead to the irreparable harm of which
the Eighth Circuit warned in Reynolds: Ordering the NFL clubs to resume
football operations would likely lead to the more favorably-situated teams
signing the best players. See Reynolds, 584 F.2d at 287; Ruocco Decl. ¶¶6-9.
Indeed, plaintiffs’ complaint expressly seeks that result by challenging any
- 46 -

“restrictions on player free agency.” (Compl. ¶132.) But that would
irreparably harm the NFL by destroying the competitive balance that is
essential to keeping it’s entertainment product attractive to fans. See Powell,
690 F. Supp. at 818 (“[T]he potential migration of many key players from less
attractive clubs to more desirable ones could have a devastating, long-term
impact on the competitive balance within the League.”).
Although such an injunction “would only be ‘preliminary’ pending final
resolution of this matter, its effects may be felt for years since many players
who moved undoubtedly would sign long-term contracts with their new
clubs.” Id. at 816. It would be difficult, if not impossible, to unscramble the
eggs and return those players to clubs who otherwise may have had contract
arrangements with (or, at least, a greater ability to enter into contracts with)
such players in the absence of an injunction. (See Ruocco Decl. ¶7.)
D.

The public interest will be furthered only if the Court
denies plaintiffs’ motion.

The dominant public interest in this case lies in “fair, unfettered
collective bargaining”; in parties’ acting consistently with “fair labor
practices”; and “in protecting and promoting the bargaining process.”

Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 372 (8th Cir.
1991); Osthus ex rel. NLRB v. Laborers Dist. Council of Minn. & N.D., 2010

- 47 -

WL 3927409, at *6 (D. Minn. Oct. 4, 2010); Powell, 690 F. Supp. at 818; see

also Brown, 518 U.S. at 236; Anderson, 803 F.2d at 955.
Even if both sides faced irreparable harm during the pendency of an
appeal, that would only underscore the importance of the strong public
interest in encouraging parties in a labor dispute to resolve their differences
via collective bargaining, free from the skewing effect of an injunctive order.

See In re Dist. No. 1, 732 F.2d at 75. Strikes and lockouts ultimately lead to
agreements precisely because both sides have something to lose. Enjoining
one side in a labor dispute from using the economic tools available to it under
the labor laws would contravene the policy underlying the Norris-LaGuardia
Act, the primary jurisdiction of the NLRB, and federal labor law generally, by
replacing bilateral negotiation with a unilateral ability to place a judicial
injunctive thumb on the collective bargaining scale.
In aid of the public interest in collective bargaining, “the federal labor
laws provide the opposing parties to a labor dispute with offsetting tools, both
economic and legal, through which they may seek resolution of their dispute.”

Powell, 930 F.2d at 1302. A lockout—implemented as part of the collective
bargaining process, Brown, 50 F.3d at 1053-54—is a tool consistent with the
public interest. Antitrust litigation is not. Indeed, an injunction here “would
wholly subvert the collective bargaining process and thereby offend a central
purpose of the Norris-LaGuardia Act.” Powell, 690 F. Supp. at 817.
- 48 -

“[W]hen federal labor policy collides with federal antitrust policy in a
labor market organized around a collective bargaining relationship, antitrust
policy must give way.” Brown, 50 F.3d at 1056. Accordingly, “employees
confronted with actions imposed lawfully through the collective bargaining
process must respond not with a lawsuit brought under the Sherman Act, but
rather with the weapons provided by the federal labor laws.” Id. at 1045
(emphasis added).
CONCLUSION
For the foregoing reasons, this Court should deny plaintiffs’ motion.
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)

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
March 21, 2011
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