Brady et al v. National Football League et al

Filing 60

MEMORANDUM in Support re 58 MOTION for Preliminary Injunction (originally filed in 11-748 SRN/JJG on 3/30/11) filed by Obafemi Ayanbadejo, Ryan Collins, Carl Eller, Priest Holmes. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(akl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
Carl Eller, Priest Holmes, Obafemi
Ayanbadejo,
and
Ryan
Collins,
individually, and on behalf of all others
similarly situated,
Civil Action No: 0:11-cv-00748-RHK-JSM
Plaintiffs,
v.
National Football League, Arizona
Cardinals, Inc., Atlanta Falcons Football
Club LLC, Baltimore Ravens Limited
Partnership, Buffalo Bills, Inc., Panthers
Football LLC, Chicago Bears Football
Club, Inc., Cincinnati Bengals, Inc.,
Cleveland Browns LLC, Dallas Cowboys
Football Club, Ltd., Denver Broncos
Football Club, Detroit Lions, Inc., 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,
New England Patriots, LP, New Orleans
Louisiana Saints, LLC, New York Football
Giants, Inc., New York Jets Football Club,
Inc., Oakland Raiders LP, Philadelphia
Eagles Football Club, Inc., Pittsburgh
Steelers Sports, Inc., San Diego Chargers
Football Co., San Francisco Forty Niners
Ltd., Football Northwest LLC, The Rams
Football Co. LLC, Buccaneers Limited
Partnership, Tennessee Football, Inc.,
Washington Football Inc.
Defendants.

MEMORANDUM IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION

TABLE OF CONTENTS
I. 

INTRODUCTION....................................................................................................... 1 

II.  FACTUAL SUMMARY............................................................................................. 1 
III.  ARGUMENT. ............................................................................................................. 6 
A. 

Plaintiffs Have Satisfied The Standard For A Preliminary Injunction. ................. 6 

B. 

The NFL’s Defenses Lack Merit. ........................................................................ 12 

IV.  CONCLUSION ......................................................................................................... 21 

i

TABLE OF AUTHORITIES
Page(s)
CASES
American Needle, Inc. v. NFL,
130 S.Ct. 2201 (2010) .............................................................................................. 8, 20
Brown v. Pro Football, Inc.,
518 U.S. 231 (1996)......................................................................................... 16, 18, 19
Cargill, Inc. v. Monfort of Colo.,
479 U.S. 104 (1986)....................................................................................................... 3
Dataphase Sys., Inc. V. CL Sys., Inc.,
640 F.2d 109 (8th Cir. 1981) ................................................................................ passim
Jackson v. NFL,
802 F.Supp. 226 (D. Minn. 1992)......................................................................... passim
Mackey v. NFL,
543 F.2d 606 (8th Cir. 1976), cert. dismissed, 434 U.S. 801 (1977)....................... 9, 15
McNeil v. NFL,
790 F.Supp. 871 (D. Minn. 1992)............................................................................ 9, 18
McNeil v. NFL,
No. 4-90-476, 1992 WL 315292 (D. Minn. Sept. 10, 1992) ....................................... 10
NFLPA v. NFL,
598 F.Supp.2d 971 (D. Minn. 2008)..................................................................... passim
Powell v. National Football League,
764 F.Supp. 1351 (D.Minn.1991).......................................................................... 17, 18
Powell v. NFL,
678 F.Supp. 777 (D. Minn. 1988), rev’d, 930 F.2d 1293 (8th Cir. 1989), cert.
denied, 498 U.S. 1040 (1991) ................................................................................ 16, 17
Powell v. NFL,
690 F.Supp. 812 (D. Minn. 1988).......................................................................... 16, 18
Reynolds v. NFL,
584 F.2d 280 (8th Cir. 1978) ....................................................................................... 20

ii

Smith v. Pro-Football,
420 F. Supp. 738 (D.D.C. 1976), aff’d in part and rev’d in part on other
grounds, 593 F.2d 1173 (D.C. Cir. 1978).................................................................... 10
United States Football League v. NFL,
644 F. Supp. 1040 (S.D.N.Y. 1986), aff’d, 842 F.2d 1335 (2d Cir. 1988).................... 9
West Pub. Co. v. Mead Data Cent., Inc.,
799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987).............................. 6
White v. NFL,
585 F.3d 1129 (8th Cir. 2009) ....................................................................................... 3
White v. NFL,
No. 4-92-906 (DSD), 2011 WL 706319 (D. Minn. March 1, 2011) ......................... 3, 4
STATUTES
15 U.S.C. §2 .................................................................................................................... 8, 9
15 U.S.C. §26 ...................................................................................................................... 2
29 U.S.C. §§101-15 ........................................................................................................... 12
29 U.S.C. §107 .................................................................................................................. 15
29 U.S.C. §109 .................................................................................................................. 12

iii

I.

INTRODUCTION
Plaintiffs Carl Eller, Priest Holmes, Obafemi Ayanbadejo, and Ryan Collins

hereby move for a preliminary injunction restraining the National Football League
(“NFL” or “league”) and its member clubs from continuing a lockout that threatens to
cancel the 2011 NFL playing season. The lockout was commenced on March 12, 2011
and has the undisputed effects that if, continued, will result in the cancellation of the
2011 NFL season. That cancellation will have direct effects on the retired and rookie
members of the putative class sought to be represented by Plaintiffs here, as well as
active NFL players.
Plaintiffs’ motion is consistent with a motion for preliminary injunction against
the NFL lockout filed by ten active NFL players and one prospective NFL player. See
“Memorandum Of Law In Support Of Plaintiffs’ Motion For Preliminary Injunction”
(March 11, 2011) (Dkt. No. 4) in Brady v. NFL, No. 0:11-cv-00639-SRN-JJG (D. Minn.)
(“Brady”). This motion is due to be heard on April 6, 2011. “Order” (March 14, 2011)
(Brady Dkt. No. 33). Plaintiffs here ask that their motion be combined with the one
pending in Brady and heard at the same time.
II.

FACTUAL SUMMARY.
Plaintiffs represent a class composed of: (a) all retired or former professional

football players who were employed by any NFL member but are not now employed by
the NFL or any member club and who receive health, retirement or other benefits from
the NFL pursuant to the “Bert Bell/Pete Rozelle NFL Player Retirement Plan” (the

“Plan”) or other benefit plans subsidized by the NFL and (b) rookie professional football
players who, as of March 11, 2011 to the date of final judgment in this action and the
determination of any appeal therefrom, have not previously commenced negotiation with
any NFL club concerning employment and have not been selected in any NFL College
Draft. “Class Action Complaint” ¶20 (“Complaint”).
The common thread binding these two groups is that neither has any employment
relationship with the NFL or its member clubs. Rookies, as described above, have yet to
enter into any such employment relationship. Former or retired NFL players, as described
above, have ceased any such relationship. As also explained at paragraph 21 of the
Complaint, none of the putative class members fall within the definition of the Collective
Bargaining Unit (“CBU”) contained in the 2006-12 Collective Bargaining Agreement
(“CBA”) between the NFL Management Council (“NFLMC”) and the NFL Players
Association (“NFLPA”), the union that formerly represented that CBU. Affidavit of
Mark J. Feinberg (“Feinberg Aff.”), Ex. P.1
Nonetheless, all putative class members are alleged to be harmed irreparably by
the lockout, either because they face potential termination or reduction of retirement or
health benefits or because they confront a 2011 NFL College Draft process (slated to
occur on April 28-30, 2011) that is a naked restraint of trade in violation of the antitrust
laws. See Complaint, ¶¶42-49, 95-106. Plaintiffs and putative class members thus clearly
have standing to pursue claims for injunctive relief under Section 16 of the Clayton Act

1

All references to “Feinberg Aff.” are to the Affidavit of Mark J. Feinberg filed in support of the Motion for
Preliminary Injunction.

2

(15 U.S.C. §26). All that is required under that statute is that the alleged anticompetitive
conduct creates a threat of injury, not that actual injury exists currently. Cargill, Inc. v.
Monfort of Colo., 479 U.S. 104, 122 (1986).
The facts in this case are fundamentally not in dispute. The putative class
described in the Complaint clearly exists and is excluded from the definition of the CBU
contained in the 2006 CBA.
There is no dispute that the NFL and players entered into a Stipulation &
Settlement Agreement (“SSA”) on February 26, 1993 from which successive CBAs have
been generated. White v. NFL, 585 F.3d 1129, 1133-34 (8th Cir. 2009); White v. NFL,
No. 4-92-906 (DSD), 2011 WL 706319 at *1 (D. Minn. March 1, 2011) (“White II”). See
Complaint, ¶¶ 40-41 and Feinberg Aff., Ex. A. There is no dispute that the NFLMC and
NFLPA entered into the 2006 CBA as part of this process and that the league sought to
terminate it early in 2011. White II, 2011 WL 706319 at *1. See Complaint, ¶41. There is
no dispute that NFL owners as early as 2008 were considering an eventual player lockout
and took a series of steps to effectuate that goal. See Complaint, ¶¶ 49-74. There is no
dispute that as part of these efforts, they negotiated broadcast contracts that gave them
“lockout insurance”--guaranteed payments in the event an NFL season was cancelled in
whole or in part. White II, 2011 WL 706319 at *2-*5. See Complaint, ¶¶ 51-59. There is
no dispute that, as Judge David Doty held in White II:
However, under the terms of the SSA, the NFL is not entitled
to obtain leverage by renegotiating shared revenue contracts,
during the SSA, to generate post-SSA leverage and revenue
to advance its own interests and harm the interests of the
Players. Here, the NFL renegotiated the broadcast contracts to
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benefit its exclusive interest at the expense of, and contrary
to, the joint interests of the NFL and the Players. This conduct
constitutes “a design ... to seek an unconscionable advantage”
and is inconsistent with good faith.
As an example of this bad faith, Judge Doty offered the following (2011 WL 706319 at
*12 n.4 (citation omitted)):
The NFL's “Decision Tree” is one glaring example of the
NFL's intent and consideration of its own interests above the
interests of the Players. Moving forward with a deal depended
on the answer to the question: “Does Deal Completion
Advance CBA Negotiating Dynamics?” If yes, the NFL
should “Do Deal Now”; if no, the NFL should “Deal When
Opportune.”
This “Decision Tree” is attached as Exhibit B to the Complaint and the Feinberg
Affidavit. Similar types of internal NFL documents are attached as Exhibits C-E. See
Complaint, ¶58 and Feinberg Aff, Exs. C-E.
There is no dispute that after years of negotiation and the services of a federal
mediator, the 2006 CBA expired on March 11, 2011. Id., ¶¶76, 80-81. See Exhibits F-K
to the Complaint and Feinberg Aff., Exs, F-K. The federal mediator, George Cohen
(“Cohen”), had this to say in a press release dated March 11:
[T]he parties have not achieved an overall agreement, nor
have they been able to resolve the strongly held, competing
positions that separated them on core issues.
In these circumstances, having reviewed all of the events that
have transpired, it is the considered judgment of myself and
Deputy Director Scott Beckinbaugh, who has been engaged
with me throughout this process, that no useful purpose
would be served by requesting the parties to continue the
mediation process at this time.

4

Id., ¶81 & Exh. O to Complaint and Feinberg Aff., Ex. O. There is no dispute that on the
same day, the NFLPA renounced its status as a union and has taken multiple affirmative
steps to effectuate that renunciation. Id., ¶¶82, 84-87. The letters of renunciation are
attached as Exhibits L and M to the Complaint and the Feinberg Aff. There is also no
dispute that on March 11, 2011, the NFLMC responded with a letter advising NFL
players of a lockout commencing on March 12. Id., ¶87.That letter is attached as Exhibit
N to the Complaint and the Feinberg Aff.
There is no dispute that on April 28-30, 2011, the NFL plans to conduct the 2011
College Draft. Id., ¶99. In past years, the draft was conducted with an “Entering Player
Pool” (“EPP”). Id., ¶47.
There is no dispute that the NFL subsidizes various health and retirement plans for
retired or former NFL players, such as the Plan described above, the “88 Plan”, the NFL
Player Care Plan and others. Id., ¶¶42-46. Contributions to these plans are directly
jeopardized by the loss of revenue caused by a cancelled season. Id., ¶104. If no new
CBA is created within a year, the Plan itself could be terminated, by its own terms. Id.,
¶43. And the amounts contributed were affected by the terms in the CBA that has
expired. Id., ¶42.
The main factual disputes here are twofold: First, have the NFL and its member
clubs engaged in an antitrust violation? Second, is that violation exempt with respect to
this putative class because of the statutory or non-statutory labor antitrust exemptions.
Plaintiffs anticipate that they will see raised against them the same arguments raised by
the NFL in Brady: whether the NFLPA’s renunciation of its representative status was a
5

sham and hence whether any labor antitrust exemption can be applied? See
“Memorandum of National Football League And Its Member Clubs In Opposition To
Plaintiffs’ Motion For A Preliminary Injunction,” pp. 5-9 (March 21, 2011) (Brady Dkt.
No.34) (“NFL Memo.”), Plaintiffs here contend that: (a) the exemptions do not apply to
the putative class here because none of them have any employment relationship with the
NFL and were not within the CBU being represented by the NFLPA and (b) in any event,
under the controlling caselaw, the renunciation must be given full effect.
III.

ARGUMENT.
A. Plaintiffs Have Satisfied The Standard For A Preliminary Injunction.

Plaintiffs have satisfied the standard for a preliminary injunction. The court
considers four factors when determining whether to issue either a preliminary injunction:

1. The probability that the movant will succeed on the merits
of its claims;
2. The threat of irreparable harm to the movant if the
requested relief is denied;
3. The balance between the harm to the movant if injunctive
relief is denied and the injury that will result if such relief
is granted; and
4. The public interest.
Dataphase Sys., Inc. V. CL Sys., Inc., 640 F.2d 109, 119 (8th Cir. 1981) (“Dataphase”).
None of these factors is determinative. “[R]ather, in each case the four factors must be
balanced toward or away from granting a preliminary injunction.” West Pub. Co. v. Mead
Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986), cert. denied, 479 U.S. 1070

6

(1987); Dataphase, 640 F.2d at 113. The Dataphase factors have been applied in this
district in two prior cases involving the NFL where preliminary injunctive relief or a
temporary restraining order (“TRO”) was granted: Jackson v. NFL, 802 F.Supp. 226 (D.
Minn. 1992) (“Jackson”) (issuing a TRO against enforcement of the league’s Right of
First Refusal/Compensation Rules (known as “Plan B”) rules limiting movement among
teams) and NFLPA v. NFL, 598 F.Supp.2d 971 (D. Minn. 2008) (“NFLPA”) (enjoining
enforcement of arbitral awards decreeing four-game suspensions for use of banned
substances).
The court in Jackson found a likelihood of success given prior rulings against the
NFL. 802 F.Supp. at 229-30. It found irreparable injury “because [plaintiffs] suffer
irreparable injury each week that they remain restricted under an illegal system of player
restraints.” Id. at 230-31. The balance of hardships tipped in plaintiffs’ favor because
“defendants have no justifiable interest in continuing to violate the Sherman Act by
preserving an illegal status quo. In balancing any hardship to defendants against
plaintiffs' harm if the requested relief is denied, the court finds that plaintiffs stand to
suffer the greater harm and thus this factor favors injunctive relief.” Id. at 232. And the
public interest favored the granting of an injunction because such relief fosters the
policies underlying the Sherman Act and does not undermine the policies of labor law.”
Id.
In NFLPA, the court found irreparable injury because the NFLPA raised a
substantial issue as to whether they were tainted by bias. 598 F.Supp.2d at 982.
Irreparable injury was found because “[a]s the NFLPA argues, a player who has been
7

suspended...is ineligible for post-season awards such as the Pro-Bowl. Those honors
carry significant economic and non-economic benefits. Moreover, at least some of the
players are central to their team's chances of making the playoffs. The failure to make the
playoffs and the effect of that failure on the players, teams, and fans is not compensable
monetarily and is therefore an irreparable harm.”
Id. These factors also tipped the balance of equities in plaintiffs’ favor. Id. at 983.
Finally, the court found that because of “the strong public policy of deterring breaches of
fiduciary duty, the public interest weighs in favor of an injunction here. Similarly, as
courts have recognized for more than a century, the public interest lies in ensuring that
innocent people are not subject to unjust punishment.” Id.
Many of these considerations apply here.
1.

Likelihood of success is high in this case. The United States

Supreme Court held last year in American Needle, Inc. v. NFL, 130 S.Ct. 2201, 2212-13
(2010) (“American Needle”) that each member team is legally capable of conspiring with
other member teams in violation of the antitrust laws:
The NFL teams do not possess either the unitary
decisionmaking quality or the single aggregation of economic
power characteristic of independent action. Each of the teams
is a substantial, independently owned, and independently
managed business. “[T]heir general corporate actions are
guided
or
determined”
by
“separate
corporate
consciousnesses,” and “[t]heir objectives are” not “common.”
... The teams compete with one another, not only on the
playing field, but to attract fans, for gate receipts and for
contracts with managerial and playing personnel.

8

Here, the NFL and its member clubs have agreed to engage in a group boycott—the
lockout—in furtherance of their anticompetitive practices. Absent some immunity, this
conduct is likely to be found to violate the antitrust laws.
The likelihood of success is also supported by the NFL’s position as a recidivist
antitrust violator. The NFL is an adjudicated monopolist that acquired its monopoly
power in the market for professional football in violation of Section 2 of the Sherman Act
(15 U.S.C. §2). Thus, in United States Football League v. NFL, 644 F. Supp. 1040, 105758 (S.D.N.Y. 1986), aff’d, 842 F.2d 1335 (2d Cir. 1988) (“USFL”), the court upheld jury
determinations that: (a) the NFL held monopoly power in the professional football
market, receiving 95% of the revenues from major league professional football and (b) it
had acquired that power through “predatory conduct.” These findings have been given
collateral estoppel effect in subsequent antitrust cases against the NFL. E.g., McNeil v.
NFL, 790 F.Supp. 871, 889-96 (D. Minn. 1992) (“McNeil I”).
The NFL has also been determined to have abused its dominant position in the
market for professional football services, which is the relevant market at issue in this
case. For example, in Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976), cert. dismissed, 434
U.S. 801 (1977) (“Mackey”), the issue was the validity of the “Rozelle Rule,” which
decreed that when a football player’s contract with an NFL club expired and he moved to
a different club, his present employer had to provide compensation to his former
employer, with the NFL Commissioner resolving any dispute. The United States Court of
Appeals for the Eighth Circuit upheld the district court’s determination of liability after a
55-day trial. The appellate court found that the relevant market was one for professional
9

football services (id. at 617-18) and that the “Rozelle Rule, as enforced, unreasonably
restrains trade in violation of §1 of the Sherman Act” (id. at 622).
Likewise, it has been determined that the NFL’s College Draft “cannot be
regarded as ‘reasonable’ under the antitrust laws.” Smith v. Pro-Football, 420 F. Supp.
738, 747 (D.D.C. 1976), aff’d in part and rev’d in part on other grounds, 593 F.2d 1173
(D.C. Cir. 1978).
Similarly, after a ten-week trial, a jury in another case held that the NFL’s
conspiratorial “Plan B” rules that limited the mobility of professional football players
after their contracts expired and they became “free agents” had a “a substantially harmful
effect on competition in the relevant market for the services of professional football
players.” McNeil v. NFL, No. 4-90-476, 1992 WL 315292 at *1 (D. Minn. Sept. 10,
1992) (“McNeil II”).
In 1992, a group of players brought suit seeking relief for injuries they suffered as
a result of the very same anticompetitive restraints that the jury in McNeil II found
violated Section 1 of the Sherman Act. As noted above, in Jackson, the district court gave
collateral estoppel effect to the jury’s findings. Id. at 802 F.Supp. at 229-30. It then issued
a temporary restraining order against the enforcement of the rules. Id. at 230-31.
Irreparable injury is also present. Retirees and other former NFL players who
receive retirement and health benefits (see 2007 Bert Bell/Pete Rozelle NFL Player
Retirement Plan, Feinberg Aff., Ex. Q) are innocent victims of the NFL lockout. As the
Complaint alleges (Complaint, ¶¶93-94, 103), the average career of an NFL player is
short and they can suffer devastating injuries or long term effects (such as the “dementia”
10

that Plan 88 is directed against) that shorten their lives and greatly impact the quality of
those lives. Often, their only hope of survival is through benefits received from the
league. Any cessation or reduction of those benefits caused by a lockout is an injury that
is life-threatening for many putative class members and hence is truly irreparable. This is
the type of “unjust punishment” that the court in NFLPA decried.
Likewise, rookies who are denied the right to play in all or part of the 2011 NFL
season will suffer irreparable injury. Id., ¶105. If they don’t play because of the lockout,
their careers are shortened and they may be in the unenviable position of competing for
slots on NFL clubs against the rookie contingent available during the year that play
resumes. They are also denied honors that may enhance their careers. And they are put at
a greater risk of injury when they do return because of not having played for months or
perhaps years.
And the NFL fans’ potential loss of all or part of the 2011 NFL season is also an
injury for which money is no compensation. Id., ¶106.
The balance of hardships tips in favor of Plaintiffs and putative class members,
given that the lockout is a naked restraint of trade in furtherance of other restraints of
trade. And when one compares the vast wealth of, and receipts received by, NFL club
owners, it cannot be denied that players (including rookies and former players) will bear
the brunt of any hardship. Id., ¶¶30-35, 92-94.
The public interest is best served by enjoining antitrust violations. And the public
interest is best served by having a 2011 NFL season go forward, so that the many
millions of fans of NFL football are not unfairly disadvantaged.
11

B. The NFL’s Defenses Lack Merit.

The NFL’s counterarguments against injunctive relief made in the Brady case do
not compel a contrary result with respect to the present motion. The league argues that:
(a) the statutory labor antitrust exemption of the Norris-La Guardia Act (29 U.S.C.
§§101-15) (“Norris-La Guardia”) bars injunctive relief here (NFL Memo., pp. 9-16); (b)
the nonstatutory labor antitrust exemption and principles of primary jurisdiction (alleged
to arise from fact that the NFL has filed an unfair labor charge against the NFLPA)
require this Court to stay any injunction directed at the league’s lockout until the agency
makes a ruling (id., pp. 17-27); and (c) the various Dataphase factors operate in the
league’s favor (id., pp. 28-48). None of these arguments have merit.
Statutory labor antitrust exemption. The NFL’s discussion of the statutory labor
antitrust exemption in its brief in Brady characterizes that case as part of a “dispute with
their [NFL clubs’] employees over terms and conditions of their employment.” NFL
Memo., p. 12. On its face, that is not what this case is about. The former NFL players
defined to be part of the putative class no longer have an employment relationship with
the NFL or any of its member clubs, The rookies defined to be part of this class have
never had any such relationship. Buy its terms, Norris-LaGuardia applies to disputes
“between one or more employers or associations of employers and one or more
employees or associations of employees.” 29 U.S.C. §109. That is simply not this case.
Even if one were to assume the contrary, as noted above, on March 11, 2011, the
NFLPA renounced its representative status. In Jackson, the court denied the applicability

12

of Norris-La Guardia after a similar renunciation by the NLPA, explaining its persuasive
reasoning at length:
Defendants also contend that the Norris-LaGuardia Act, 29
U.S.C. §§ 101-15, bars any injunctive relief in the present
case. That Act limits federal courts' jurisdiction to issue
injunctive relief in cases “involving or growing out of a labor
dispute” and specifically prohibits any injunctive relief
“contrary to the public policy declared” in the Act. 29 U.S.C.
§ 101. The Act defines public policy in “labor matters” as
follows:
Whereas under prevailing economic conditions, developed
with the aid of governmental authority for owners of property
to organize in the corporate and other forms of ownership
association, the individual unorganized worker is commonly
helpless to exercise actual liberty of contract and to protect
his freedom of labor, and thereby to obtain acceptable terms
and conditions of employment, wherefore, though he should
be free to decline to associate with his fellows, it is necessary
that he have full freedom of association, self-organization,
and designation of representatives of his own choosing, to
negotiate the terms and conditions of his employment, and
that he shall be free from the interference, restraint, or
coercion of employers of labor, or their agents, in the
designation of such representatives or in self-organization or
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection; therefore, the
following definitions of and limitations upon the jurisdiction
and authority of the courts of the United States are enacted.
Id. § 102. Thus, the Act seeks to protect:
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) (quoting Act). Based on
the court's determination in McNeil that any bargaining
relationship between players and defendants ended no later
than November, 1989, Powell and McNeil v. National
13

Football League, 764 F.Supp. 1351, 1358-59 (D.Minn.1991)
(holding only in McNeil) and that the Plan B rules were
thereafter subject to antitrust challenge, id. at 1359, the court
determines that the Act does not preclude injunctive relief in
the present case because such relief will not undermine any
labor policy set forth in the Act. See Los Angeles Meat &
Provision Drivers Union, Local 626 v. United States, 371
U.S. 94, 99-102... (1962) (Norris-LaGuardia Act does not
prohibit injunctive relief where labor union conspires with
employer to violate the Sherman Act because such an illegal
combination to restrain competition does not grow out of a
labor dispute); Robertson v. National Basketball Ass'n, 389
F.Supp. 867, 880 (S.D.N.Y.1975) (rejecting as “patently
meritless” argument that Norris-LaGuardia Act should be
used to dissolve injunction that prevented the merger of two
rival professional basketball leagues because Act “did not
apply to an antitrust case”); Nassau Sports v. Peters, 352
F.Supp. 870, 882 (E.D.N.Y.1972) (Act did not apply to
dispute between hockey player and hockey club because
player's contract was one for “unique personal services to be
rendered by an individual”, and thus did not involve either a
labor dispute or labor contract); Flood v. Kuhn, 316 F.Supp.
271, 280 n. 15 (S.D.N.Y.1970) (Act did not apply to action by
baseball player challenging professional baseball's reserve
system); cf. Mackey, 543 F.2d at 623 (upholding permanent
injunctive relief based on determination that Rozelle Rule
violated the Rule of Reason, and stating that it was unclear
whether case presented a labor dispute as defined by the Act).
Denying injunctive relief in the present case may actually
subvert the labor policies set forth in the Act. As the court
previously stated, the players sacrificed their union
representation and the protection of the labor laws to pursue
their antitrust remedies. Powell and McNeil, 764 F.Supp. at
1355-59 (decision in McNeil ). It would be ironic if a statute
that had been enacted to protect the rights of individual
employees from improper actions by employers and the
courts were turned against those employees and used to
justify the continued application of a system found illegal
under the Sherman Act. Cf. United States v. Women's
Sportswear Mfg. Ass'n, 336 U.S. 460, 464... (1949) (reversing
denial of government's request for antitrust injunctive relief
involving activities of unincorporated trade association
14

because “benefits to organized labor cannot be utilized as a
cat's-paw to pull employers' chestnuts out of the antitrust
fires”).
Jackson, 802 F.Supp. at 232-34 (footnotes omitted).
Here, as well, the NFLPA’s renunciation of representative status renders Norris-La
Guardia’s statutory labor antitrust exemption inapplicable because no “labor policy” is
being challenged. Here, as in Mackey and the other cases cited in the quotation, there is a
real issue as to whether the present dispute can be characterized as a “labor dispute,” any
more than could the antitrust viability of the Rozelle rule in Mackey. And NorrisLaGuardia certainly does not immunize a lockout accomplished in part by the league
obtaining “lockout insurance” in bad faith by conspiring and contracting with non-labor
entities such as broadcasters.
In addition, 29 U.S.C. §107, which is part of Norris-La Guardia, does permit a
district court to issue injunctions relating to labor disputes if is shown that: (1) illegal acts
either have been committed or are threatened to be committed; (2) the movant will suffer
irreparable harm; (3) the balance of harms weighs in favor of the movant; (4) there is no
adequate remedy at law; and (5) “the public officers charged with the duty to protect
[movant's] property are unable or unwilling to furnish adequate protection.” In NFLPA,
the district court held that, except for the fifth factor (which it deemed inapplicable and is
inapplicable here as well), these considerations “echo[ed]” the Dataphase factors; “the
Court finds that, should the NFLPA succeed in establishing the Dataphase factors listed
above, preliminary injunctive relief is appropriate.” 598 F.Supp.2d at 978.

15

The NFL cites many cases with respect to its Norris-LaGuardia argument, but only
two involve the league: Brown v. Pro Football, Inc., 518 U.S. 231 (1996) (“Brown”) and
Powell v. NFL, 690 F.Supp. 812 (D. Minn. 1988) (“Powell II”). As the Supreme Court
stated in Brown, it was concerned with the nonstatutory labor antitrust exemption, not the
statutory labor one created in Norris-LaGuardia. 518 U.S. at 235-36. And in Powell II,
the court did not want to undermine what it viewed as an ongoing collective bargaining
process. 690 F.Supp. at 817. Here, of course, collective bargaining ended on March 11,
2011.
Nonstatutory labor antitrust exemption/primary jurisdiction. The NFL’s
argument that, pursuant to the nonstatutory labor antitrust exemption and principles of
primary jurisdiction, this Court should hold antitrust actions seeking to enjoin the
league’s lockout in abeyance based on the primary jurisdiction of the NLRB is equally
unfounded.
To begin with, since the nonstatutory labor antitrust exemption arises from the
collective bargaining relationship (Brown, 518 U.S. at 235-36), it should have no
application to this case, where no member of the putative class is part of the CBU that
was negotiating with the NFL.
In addition, the cases on which the league relies that has arisen in the context of
NFL disputes is Powell v. NFL, 678 F.Supp. 777 (D. Minn. 1988), rev’d, 930 F.2d 1293
(8th Cir. 1989), cert. denied, 498 U.S. 1040 (1991) (“Powell I”) and Brown. Powell I is
distinguishable and the NFL fails to consider what happened subsequent to that decision.
The district court in Powell I noted that there is a duty to continue bargaining until an
16

“impasse” is reached. Because it viewed a finding of good faith as a precondition to
determining if an impasse exists, it applied the nonstatutory labor antitrust exemption and
decided to await the resolution of an unfair labor charge brought before the NLRB by the
NFL. Certainly, the Cohen statement quoted above provides a basis for determining an
“impasse” here. However, on appeal in Powell I, the Eighth Circuit ruled that use of an
“impasse” standard focused on a point too early in the discussions between employers
and employees. 930 F.2d at 1302. It declined to identify when a proper juncture would
occur, but said:
Upon the facts currently presented by this case, we are not
compelled to look into the future and pick a termination point
for the labor exemption. The parties are now faced with
several choices. They may bargain further, which we would
strongly urge that they do. They may resort to economic
force. And finally, if appropriate issues arise, they may
present claims to the National Labor Relations Board. We are
satisfied 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 labor exemption applies.
Id. at 1303-04.
The case was remanded to the district court and, in the interim, the NFLPA, as
here, renounced its representative status. Powell v. NFL, 764 F.Supp. 1351, 1356 (D.
Minn. 1991) (“Powell III”). The district court held that this action nullified any
nonstatutory labor antitrust exemption:
Based on the foregoing, the court holds that the plaintiffs are
no longer part of an “ongoing collective bargaining
relationship” with the defendants. The NFLPA no longer
engages in collective bargaining and has also refused every
overture by the NFL defendants to bargain since November of
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1989. The NFLPA further has abandoned its role in all
grievance arbitrations and has ceased to regulate agents,
leaving them free to represent individual players without
NFLPA approval. The plaintiffs have also paid a price for the
loss of their collective bargaining representative because the
NFL defendants have unilaterally changed insurance benefits
and lengthened the season without notifying the NFLPA.
Because no “ongoing collective bargaining relationship”
exists, the court determines that nonstatutory labor exemption
has ended. In the absence of continued union representation,
the Eighth Circuit's rationale for the exemption no longer
applies because the parties may not invoke any remedy under
the labor laws, whether it be collective bargaining, instituting
an NLRB proceeding for failure to bargain in good faith or
resorting to a strike.
Id. at 1358-59. Accord McNeil I, 790 F.Supp. at 883-84.2
The NFL argued that this unilateral renunciation was insufficient and said that the
district court was required to wait for the NLRB to rule on the validity of the
decertification. The district court rejected that argument, stating that:
Just as certification is not required to create a collective
bargaining relationship, a decertification proceeding is not
required to end it. ... In the present case, a majority of players
have voted to end collective bargaining. The NFLPA also
concedes that it has lost its majority status and may no longer
bargain on the players' behalf. Thus, there is no need for the
NLRB to decertify the NFLPA.
764 F. Supp. at 1358.
Based on Powell III, this Court is not barred from acting until the NLRB issues
some ruling. This principle should apply with special force in this case, where the

2

Interestingly, the district court in Powell II noted that the NLRB “dismissed the owners’
charge of bad faith bargaining” by the NFLPA. 690 F. Supp. at 814.
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putative class consists of persons excluded from the CBU contained in the 2006 CBA,
over whose claims the NLRB would have no jurisdiction.
The NFL further argues that the nonstatutory labor antitrust exemption applies to
its lockout in light of the United States Supreme Court’s 1996 decision in Brown, where
the Court also expressed some deference to having an NLRB determination. This
argument is unavailing. Brown did not involve the NFLPA’s renunciation of its union
status, however. There, collective bargaining over developmental squad salaries reached
an impasse and the NFL club owners unilaterally implemented their plan. 518 U.S. at
234-35. The Supreme Court ruled that this conduct was protected by the nonstatutory
labor antitrust exemption, but carefully distinguished that conduct from the type of
situation present here:
For these reasons, we hold that the implicit (“nonstatutory”)
antitrust exemption applies to the employer conduct at issue
here. That conduct took place during and immediately after a
collective-bargaining negotiation. It grew out of, and was
directly related to, the lawful operation of the bargaining
process. It involved a matter that the parties were required to
negotiate collectively. And it concerned only the parties to the
collective-bargaining relationship.
Our holding is not intended to insulate from antitrust review
every joint imposition of terms by employers, for 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. See, e.g., [Brown v.
Pro Football, Inc.,] 50 F.3d, [1041] at 1057 [(D.C. Cir.
1995)](suggesting that exemption lasts until collapse of the
collective-bargaining relationship, as evidenced by
decertification of the union)

19

518 U.S. at 249. Here, the union has, in effect, decertified itself and the collective
bargaining relationship has collapsed. And here, the league’s conduct does not concern
only parties to the collective bargaining relationship.
Dataphase factors. In Brady, the NFL also contends that the various Dataphase
factors cannot be satisfied. The decisions in Powell III and Brown refute the NFL’s claim
that a preliminary injunction cannot be granted against the lockout because success on the
merits is not likely in light of the nonstatutory labor antitrust exemption. The decisions in
Jackson and NFLPA defeat the NFL’s contention that irreparable injury cannot be found.
The NFL does contend that the balance of hardships tips in its favor because the Eighth
Circuit in Reynolds v. NFL, 584 F.2d 280, 287 (8th Cir. 1978), in approving a settlement
class, said that “[p]recise and detailed rules must of necessity govern how the sport is
played, the rules of the game, and the acquisition, number, and engagement of players.”
There are two answers to this contention. First, the lockout is not about “precise and
detailed” rules of play; it is designed to prevent play from occurring. Second, in light of
the United States Supreme Court’s ruling in American Needle, collusive “precise and
detailed” rules of play that are anticompetitive will not be countenanced. Finally, in
discussing the public interest in factor in Dataphase, the NFL asserts that the public has
an interest in supporting national labor policy. However, as reflected in the decision in
American Needle, the public also has an interest in having the antitrust laws properly
enforced.

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IV.

CONCLUSION
For all of the foregoing reasons, the request for preliminary injunctive relief

should be granted.
Dated: March 30, 2011

Michael D. Hausfeld
Hilary K. Scherrer
HAUSFELD LLP
1700 K Street, NW
Suite 650
Washington, D.C. 20006
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Michael P. Lehmann
Jon T. King
Arthur N. Bailey, Jr.
HAUSFELD LLP
44 Montgomery Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Respectfully Submitted,
/s/Mark J. Feinberg
Mark J. Feinberg (#28654)
Michael E. Jacobs (#0309552)
Shawn D. Stuckey (#0388976)
ZELLE HOFMANN VOELBEL & MASON, LLP
500 Washington Avenue, South
Suite 4000
Minneapolis, MN 55415
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Daniel S. Mason
ZELLE HOFMANN VOELBEL & MASON, LLP
44 Montgomery Street
Suite 3400
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Samuel D. Heins (#43576)
Vince J. Esades (#249361)
HEINS MILLS & OLSON, P.L.C.
310 Clifton Avenue
Minneapolis, MN 55403
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

355548v1

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