Brady et al v. National Football League et al
Filing
75
MEMORANDUM in Opposition (originally filed in 11-748 SRN/JJG on 4/4/11) re 58 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)(akl)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CARL ELLER, et al.,
Plaintiffs,
v.
NATIONAL FOOTBALL LEAGUE, et al.,
Defendants.
)
)
)
) No. 0:11-cv-00748-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 ................................................................................ ii
INTRODUCTION ................................................................................................ 1
I.
The Norris-LaGuardia Act Divests this Court of Jurisdiction to
Grant the Requested Injunctive Relief. .................................................... 3
II.
Resolution of Plaintiffs’ Claims Requires Determination of Issues
Within the Primary Jurisdiction of the NLRB......................................... 8
III.
Even if this Court Had Jurisdiction, Plaintiffs Are Not Entitled to
a Preliminary Injunction. ........................................................................ 12
A.
Plaintiffs cannot show a likelihood of success on the merits. ..... 12
B.
The balance of the equities favors the NFL. ................................ 17
CONCLUSION ................................................................................................... 19
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TABLE OF AUTHORITIES
Page(s)
CASES
Brown v. Pro-Football, Inc.,
518 U.S. 231 (1996) ................................................................. 1, 10, 12, 13, 15
Atwater v. NFL,
626 F.3d 1170 (11th Cir. 2010)..................................................................... 13
Auto. Transp. Chauffeurs, Demonstrators & Helpers,
Local Union No. 604 v. Paddock Chrysler-Plymouth, Inc.,
365 F. Supp. 599 (D. Mo. 1973) .......................................................................4
Capitol Market No. 1,
145 NLRB 1430 (1964) ....................................................................................9
Cargill, Inc. v. Monfort of Colo.,
479 U.S. 104 (1986) ....................................................................................... 16
Chi. Midtown Milk Distribs. v. Dean Foods Co.,
1970 WL 2761 (7th Cir. July 9, 1970) .............................................................4
Chi. Rock Is. & Pac. R.R. Co. v. Switchmen’s Union of N. Am.,
292 F.2d 61 (2d Cir. 1961) ...............................................................................4
Clarett v. NFL,
369 F.2d 124 (2d Cir. 2004) .......................................................................... 13
Constr. Bldg Materials, Local 682 v. Bussen Quarries, Inc.,
849 F.2d 1123 (8th Cir. 1988)....................................................................... 11
Davies v. Grossmont Union High Sch. Dist.,
930 F.2d 1390 (9th Cir. 1991)....................................................................... 15
Fair Issac Corp. v. Experian Information Solutions, Inc.,
645 F. Supp. 2d 734 (D. Minn. 2009) ........................................................... 17
Ginsburg v. Inbev NV/SA,
623 F.3d 1229 (8th Cir. 2010)....................................................................... 16
Henke Enters. v. Hy-Vee Food Stores, Inc.,
749 F.2d 488 (8th Cir. 1984)......................................................................... 16
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IBEW (Texlite),
192 NLRB 1792 (1958), enf’d, 266 F.2d 349 (5th Cir. 1959) .........................9
Jackson v. NFL,
802 F. Supp. 226 (D. Minn. 1992) ...................................................................7
Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n,
457 U.S. 702 (1982) ..........................................................................................6
JI Case Co. v. NLRB,
321 U.S. 332, 337 (1944) ............................................................................... 15
Lovett v. Gen. Motors Corp.,
975 F.2d 518 (8th Cir. 1992)......................................................................... 16
Marine Transp. Lines, Inc. v. Int'l Org. of Masters, Mates & Pilots,
770 F.2d 1526 (11th Cir. 1985)........................................................................4
McNeil v. NFL (sub nom. Powell v. NFL),
764 F. Supp. 1351 (D. Minn. 1991) .............................................................. 10
Minn-Dak Farmers Coop. Emps. Org. v. Minn-Dak Farmers Coop.,
3 F.3d 1199 (8th Cir. 1993)........................................................................... 11
Morello v. Federal Barge Lines, Inc.,
746 F.2d 1347 (8th Cir. 1984)....................................................................... 11
New Negro Alliance v. Sanitary Grocery Co.,
303 U.S. 552 (1938) ..........................................................................................6
Plumbers & Steamfitters Local 598 v. Morris,
511 F. Supp. 1298 (E.D. Wash. 1981) .............................................................4
Powell v. NFL,
690 F. Supp. 812 (D. Minn. 1988) ...................................................................8
Powell v. NFL,
930 F.2d 1293 (8th Cir. 1989)................................................................... 1, 11
San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236 (1959) ..........................................................................................9
S.D. v. Kan. City S. Indus., Inc.,
880 F.2d 40 (8th Cir. 1989)..................................................................... 16, 17
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Town of Newton v. Rumery,
480 U.S. 386 (1987) ....................................................................................... 15
W. Gulf Maritime Ass’n v. ILA Deep Sea Local 24,
751 F.2d 721 (5th Cir. 1985)............................................................................5
STATUTES AND REGULATIONS
29 U.S.C. §101 .......................................................................................................4
29 U.S.C. §104 .............................................................................................. 4, 5, 7
29 U.S.C. § 105 ................................................................................................. 4, 6
29 U.S.C. § 107 ......................................................................................................4
29 U.S.C. § 113 ......................................................................................................6
29 U.S.C. § 160 ............................................................................................. 10, 11
29 U.S.C. § 178 ......................................................................................................5
29 CFR Pt. 101 ................................................................................................... 11
OTHER AUTHORITIES
Donald H. Wollett & Harry H. Wellington, Federalism &
Breach of the Labor Agreement, 7 Stan. L. Rev. 445 (1955) .........................5
Restatement (Second) of Contracts § 178 (1981) ............................................. 15
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INTRODUCTION
The Eller plaintiffs’ motion for a preliminary injunction suffers from all
of the legal deficiencies that undermine the Brady plaintiffs’ motion plus one
more. Like the Brady motion, the Eller motion is precluded at the threshold
by, separately, the jurisdictional bar of the Norris-LaGuardia Act and the
primary jurisdiction doctrine. Even if the Court had jurisdiction to reach the
merits of the Eller motion, it must fail because of (i) the non-statutory labor
exemption to the antitrust laws; and (ii) the balance of equities, which tilts
sharply against the requested relief. In addition, the Eller plaintiffs do not—
and cannot—allege antitrust injury.
On the threshold legal issues, the authorities supporting the NFL and
its member clubs are three acts of Congress (the Norris-LaGuardia Act, the
Labor Management Relations Act, and the National Labor Relations Act), the
Supreme Court’s decision in Brown v. Pro-Football, Inc., 518 U.S. 231 (1996),
the Eighth Circuit’s decision in Powell v. NFL, 930 F.2d 1293 (8th Cir. 1989),
a plethora of Supreme Court and Eighth Circuit cases addressing the
doctrine of primary jurisdiction, and established precedent at the National
Labor Relations Board that a union’s disclaimer must be unequivocal, made
in good faith, and not a tactical measure.
Against these authorities, the Eller plaintiffs—like the Brady
plaintiffs—rely almost entirely on Judge Doty’s pre-Brown decisions in
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McNeil and Jackson. Neither of those decisions was reviewed by the Eighth
Circuit; neither dealt with a motion to enjoin a lockout; neither involved a
situation where there was pending before the NLRB a proceeding addressing
a key predicate issue in the lawsuit; neither is binding on this Court; and
each is otherwise readily distinguishable, as we demonstrate below.
That the Eller plaintiffs are not members of the bargaining unit does
not enable them to circumvent the governing legal principles and authorities
that bar an injunction here. Instead, that fact offers another reason why
their motion should be denied: They are unlikely to succeed on the merits of
their claim not only because of the legal deficiencies noted above, but also
because they lack standing and cannot allege antitrust injury.
The four moving Eller plaintiffs are former NFL players. (See Compl.
¶¶13-16.) None is currently employed by or seeking employment with an
NFL club. (See id. ¶¶20-21) None is a buyer or seller of services in the
allegedly restrained market for player services. None is being locked out. 1
The Eller complaint was amended on April 1—one day after the original
plaintiffs filed their motion for a preliminary injunction—to add a new
plaintiff, Antawan Walker, who purports to be draft-eligible. (Am. Compl.
¶17.) His claims are barred for the same reasons as those of the draft-eligible
plaintiff in Brady, Von Miller. If either Mr. Miller or Mr. Walker seeks to
enter into an employment relationship with an NFL Club, he will be within
the scope of the bargaining unit and lawfully locked out under the federal
labor laws. But as of now, neither is seeking employment with a club, neither
is being locked out, and neither has standing to seek to enjoin the lockout.
1
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And the remote and speculative injury that they allege—the prospect that an
NFL retirement plan can be “terminated” “if no new CBA is created within a
year” (id. ¶ 104)—is plainly not antitrust injury. Moreover, the uncertainty
and indirectness of any injury to the Eller plaintiffs underscore the fact that
the balance of equities weighs against preliminary injunctive relief.
We address each point briefly below, and incorporate by reference our
Opposition to the Brady plaintiffs’ motion for a preliminary injunction
(“Opp.”) (Docket No. 34 in Case No. 11-cv-639).
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 jurisdictional
threshold because of the anti-injunction provisions of the Norris-LaGuardia
Act. (See Opp. 9-16.) That the moving Eller plaintiffs are former NFL
players is irrelevant; the injunction that they seek is against the clubs’
lockout of current players. The Norris-LaGuardia Act specifically forbids
granting such relief.
The Eller plaintiffs, like the Brady plaintiffs, fail to cite a single case in
which an injunction was issued against a lockout. We are aware of none,
aside from the vacated district court decision in Chicago Midtown Milk
Distributors; that injunction was immediately dissolved on Norris-LaGuardia
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grounds by the Seventh Circuit. See Chi. Midtown Milk Distribs. v. Dean
Foods Co., 1970 WL 2761 (7th Cir. July 9, 1970).
In contrast, numerous courts have held that the Norris-LaGuardia Act
prohibits a court from entering an injunction against a lockout. See, e.g., Chi.
Midtown Milk Distribs. 1970 WL 2761, at *1; Plumbers & Steamfitters Local
598 v. Morris, 511 F. Supp. 1298, 1311 (E.D. Wash. 1981); Auto. Transp.
Chauffeurs, Demonstrators & Helpers, Local Union No. 604 v. Paddock
Chrysler-Plymouth, Inc., 365 F. Supp. 599, 601-02 (D. Mo. 1973). That bar is
evident in the general prohibitions of Section 1 of the Act as well as the
specific prohibitions of Sections 4 and 5. See 29 U.S.C. §§ 101, 104, 105. 2
After enactment of the Labor Management Relations Act (“LMRA”),
there can be no doubt that the Norris-LaGuardia Act removes jurisdiction
from the federal courts to enjoin lockouts as well as strikes. The LMRA
authorizes presidentially-initiated injunctions against a “strike or lock-out”
Plaintiffs argue (Mem. 15) that this Court can issue an injunction under
Section 7 of the Act, 29 U.S.C. § 107. But when Section 4 applies, no
injunction may issue, and there is no need to address Section 7. See, e.g.,
Chi. Rock Is. & Pac. R.R. Co. v. Switchmen’s Union of N. Am., 292 F.2d 61, 62
(2d Cir. 1961). Even if Section 7 applied, plaintiffs have not met and cannot
meet any of its many requirements; as but one example, plaintiffs have not
alleged (and could not responsibly allege) any committed or threatened acts
of “violence, intimidation, threats, vandalism, breaches of the peace [or]
criminal acts” that would meet the “unlawful act” requirement of Section
7(a), 29 U.S.C. § 107(a). Marine Transp. Lines, Inc. v. Int'l Org. of Masters,
Mates & Pilots, 770 F.2d 1526, 1530 (11th Cir. 1985).
2
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that imperils national security (see 29 U.S.C. §178(a) (mentioning “lockout”
twice)), and it explicitly exempts such injunctions from the jurisdictional bar
of the Norris-LaGuardia Act (see 29 U.S.C. § 178(b)). If injunctions against
lockouts were not within the scope of that bar, there would have been no need
for the LMRA specifically to exempt from the anti-injunction provisions of the
Norris-LaGuardia Act presidentially-initiated injunctions against lockouts. 3
The four moving Eller plaintiffs allege (Mem. 12) that the Act does not
bar the injunction they seek because, as retired players, “they no longer have
an employment relationship with the NFL or any of its member clubs.” But
the anti-injunction provisions of the Norris-LaGuardia Act apply broadly to
“any case ... growing out of any labor dispute,” regardless of who seeks the
injunctive relief. 29 U.S.C. § 104 (emphases added). See W. Gulf Maritime
Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 726 (5th Cir. 1985) (Section 4
of the Act “forbids courts to enjoin work stoppages in any case involving or
Even before the caselaw was settled to require a broad reading of the scope
of the Norris-LaGuardia Act, leading labor law scholars relied on the LMRA
to reach the same conclusion. See, e.g., Donald H. Wollett & Harry H.
Wellington, Federalism & Breach of the Labor Agreement, 7 Stan. L. Rev.
445, 456 n. 59 (1955) (“Section 208 of the [LMRA], 29 U.S.C. § 178 …
empowers the federal courts to issue injunctions in certain cases involving
strikes or lockouts imperiling the national health and safety, and it states
that the Norris-LaGuardia Act shall not be applicable. Implicit in th[is]
provision[] of the [LMRA] is the proposition that the Norris-LaGuardia Act is,
in the absence of specific statutory provisions to the contrary, applicable to
any case growing out of a labor dispute, irrespective of whether employer or
employee conduct is in question.”) (emphasis in original).
3
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growing out of a labor dispute.”); see also 29 U.S.C. § 105 (withdrawing
jurisdiction to issue any 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 any of the enumerated
activities in Section 4 (which include strikes and lockouts)).
The NFL and its member clubs fit squarely within the definition of
persons “participating or interested in” a labor dispute. 29 U.S.C. § 113(b).
And there is no question that this “case … grow[s] out of a labor dispute”
because it involves “persons who are engaged in the same industry, trade,
craft, or occupation; or have direct or indirect interests therein.” Id. § 113(a)
(emphasis added). The moving Eller plaintiffs, who allege that the lockout
may have a detrimental impact on their retirement benefits, assert an
“indirect interest” in the labor dispute between the NFL clubs and their
player-employees.
Like the Brady case, therefore, this case is subject to the antiinjunction provisions of the Act. See Jacksonville Bulk Terminals, Inc. v.
Int’l Longshoremen's Ass’n, 457 U.S. 702, 714 (1982) (reaffirming the
principle in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 555,
563 (1938), that the Act applies even when “[t]he relation of employer and
employees does not exist between” the parties)).
-6-
Plaintiffs’ extensive reliance (Mem. 13-15) on Judge Doty’s TRO
decision in Jackson v. NFL, 802 F. Supp. 226 (D. Minn. 1992), misses the
mark for several reasons. First, Jackson did not restrain a lockout, and thus
it did not implicate the express prohibitions of Section 4. The TRO in
Jackson applied to free agency rules known as “Plan B” which Judge Doty
expressly found did not implicate any of the “enumerated activities” of
Section 4. See 802 F. Supp. at 232 n.12. This case, in contrast, does involve
an enumerated activity: “ceasing or refusing to … remain in any relation of
employment,” 29 U.S.C. § 104(a).
Second, Judge Doty entered a TRO in Jackson only after an antitrust
challenge to Plan B had been tried to a jury verdict in McNeil. 4 (Immediately
after that verdict, four players who were not parties in McNeil filed the
Jackson case to challenge the same Plan B rules as applied to them.) Judge
Doty relied on the McNeil verdict to find Jackson “clearly distinguishable”
(802 F. Supp. at 234) from his decision four years earlier in Powell, in which
he had denied preliminary injunctive relief against more restrictive free
agency rules based upon the jurisdictional bar of the Norris-LaGuardia Act.
In Powell, Judge Doty correctly recognized that the Act’s scope is
“intentionally broad, covering any case … in which the employer-employee
The judgment based on the jury verdict in McNeil has since been vacated.
(See Dkt No. 499 in Case No. 90-476.))
4
-7-
relationship is at the matrix of the controversy.” Powell v. NFL, 690 F. Supp.
812, 814-17 (D. Minn. 1988) (internal citation and quotation omitted). Of
course, the grounds for denial of an injunction here are even more compelling
than the grounds upon which Judge Doty relied in Powell: While Powell
involved only “player movement[,] a term or condition of employment” (id. at
814), this case implicates a lockout, one of the “enumerated activities” of
Section 4 of the Act as to which the withdrawal of jurisdiction is absolute.
II.
Resolution of Plaintiffs’ Claims Requires Determination of Issues
Within the Primary Jurisdiction of the NLRB.
Separate and apart from the lack of jurisdiction under the Norris-
LaGuardia Act, the doctrine of primary jurisdiction requires a stay of this
case until the NLRB can address the predicate, threshold issue of the validity
of the NFLPA’s purported disclaimer. (See Opp. 17-26.)
The Eller plaintiffs argue that “the union has, in effect, decertified
itself” (Mem. 20) and that this Court should itself decide that the purported
decertification is valid. But that is precisely why the primary jurisdiction
doctrine must apply here: there is, at the very least, a serious question
whether the NFLPA’s tactical disclaimer violated its obligations under the
National Labor Relations Act, and is therefore invalid. That issue must be
resolved by the NLRB.
The NFLPA publication The Huddle, published before the Union’s
purported disclaimer, indicates that the NFLPA members “gave the NFLPA
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permission to renounce its union status in the event of a lockout.” (Connolly
Decl. Ex. A, at 5.) This conditional delegation of authority confirms that the
players were not dissatisfied with the NFLPA or its leadership; instead, they
simply voted to let the Union’s leadership decide if and when it perceived a
tactical advantage to disclaim an interest in bargaining. At the very least,
there is a question whether such gamesmanship constitutes a valid exercise
of the Union’s obligation under Section 8 of the National Labor Relations Act
to bargain in good faith—a question that falls within the exclusive
jurisdiction of the NLRB. See, e.g., San Diego Bldg & Trades Council v.
Garmon, 359 U.S. 236, 245 (1959).
“Obviously, the Board is not compelled to find a valid and effective
disclaimer just because the union uses the word, and regardless of other facts
in the case. … The question must be decided in each case whether the union
has in truth disclaimed, or whether its alleged disclaimer is simply a sham
and for that reason not to be given force and effect.” Capitol Market No. 1,
145 NLRB 1430, 1431 (1964). Accord IBEW (Texlite), 192 NLRB 1792, 179899 (1958), enf’d, 266 F.2d 349 (5th Cir. 1959) (“A union’s ‘bare statement’ of
disclaimer is not sufficient to establish that it has abandoned its claim to
representation if the surrounding circumstances justify an inference to the
contrary.”).
-9-
The players, of course, are free to file their own unfair labor practice
charge if they believe that the NFL clubs are improperly influencing their
exercise of Section 7 rights to be or to not be represented by the NFLPA; they
may also seek expedited injunctive relief from the Board to protect any such
rights allegedly infringed by the lockout. See 29 U.S.C. § 160(j). But the
doctrine of primary jurisdiction requires that this Court stay this action
pending Board resolution of the threshold, predicate issues already before the
Board that implicate the NLRA and the Board’s specialized expertise.
As against the established Board precedent and the established
caselaw on the primary jurisdiction doctrine, the Eller plaintiffs rely entirely
on Judge Doty’s decision twenty years ago in McNeil v. NFL, 764 F. Supp.
1351 (D. Minn. 1991). That decision does not control here for several reasons.
To begin, Judge Doty recognized in McNeil that his decision with respect to
the nonstatutory labor exemption presented an issue as to which there was
“substantial ground for difference of opinion.” 764 F. Supp. at 1360.
Moreover, McNeil was decided five years before the Brown decision in which
the Supreme Court articulated the “sufficiently distant in time and in
circumstances test” and advised that courts must seek the “detailed views of
the Board” when addressing the exemption. 518 U.S. at 250.
Second, the decertification at issue in McNeil was arguably distant in
time, if not in circumstances, from the collective bargaining process. It came
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years after the 1987 CBA had expired, and it followed years of litigation.
Here, in contrast, the NFLPA purported to disclaim before the CBA even
expired—literally in the midst of negotiations—and the NFLPA caused its
members to file suit the very same day.
Third, when Judge Doty decided McNeil, there was no pending unfair
labor practice charge relating to the purported disclaimer. Here, to the
contrary, the case is in the same posture as Powell, where Judge Doty
appropriately stayed his decision on the merits of the nonstatutory labor
exemption when an unfair labor practice charge related to a predicate issue
had been filed, but the Board had not yet decided whether to issue a
complaint. See Powell 930 F.2d at 1296 (recounting procedural history). 5
An unfair labor practice charge initiates a “proceeding” under the National
Labor Relations Act. See, e.g., 29 U.S.C. § 160; 29 CFR Pt 101. Without
mentioning or considering whether the Board had issued a complaint, the
Eighth Circuit has routinely applied the primary jurisdiction doctrine when
cases implicate matters within the NLRB’s jurisdiction. See, e.g., Minn-Dak
Farmers Coop. Emps. Org. v. Minn-Dak Farmers Coop., 3 F.3d 1199 (8th Cir.
1993); Constr. Bldg Materials, Local 682 v. Bussen Quarries, Inc., 849 F.2d
1123 (8th Cir. 1988); Morello v. Federal Barge Lines, Inc., 746 F.2d 1347 (8th
Cir. 1984). Cf. Powell, 930 F.2d at 1303-04 (“[A]s 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.”) (emphasis
added).
5
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Fourth, history now establishes what Judge Doty could not have known
in 1991: When the NFLPA says it is no longer collectively bargaining, that
does not mean that it will no longer collectively bargain. (See Opp. 4-9.)
III.
Even if this Court Had Jurisdiction, Plaintiffs Are Not Entitled to a
Preliminary Injunction.
Even if the Court had jurisdiction to consider their motion, the Eller
plaintiffs, like the Brady plaintiffs, could not demonstrate entitlement to the
extraordinary injunction they seek. They cannot show a likelihood of success
on the merits because (a) the nonstatutory labor exemption bars their claim
and (b) separately, they do not suffer antitrust injury. As to the other factors,
the Eller plaintiffs cannot demonstrate irreparable harm and the balance of
the equities favors the NFL.
A.
Plaintiffs cannot show a likelihood of success on the merits.
1. Nonstatutory Labor Exemption. Plaintiffs here, like the Brady
plaintiffs, simply fail to come to grips with Brown’s “sufficiently distant in
time and in circumstances” test or with Brown’s direction that a court should
not decide the outer boundaries of the test “without the detailed views of the
Board.” 518 U.S. at 250. (See Opp. 27-39.)
Like the Brady plaintiffs, the Eller plaintiffs simply refuse to read the
entirety of the Supreme Court’s opinion in Brown, including the passages
addressing the nonstatutory labor exemption at page 250 of the reported
opinion. (See Mem. 19 (quoting Brown, but omitting the following: “We need
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not decide in this case whether, or where, within these extreme outer
boundaries [of decertification of a union or “extremely long impasse”
accompanied by “defunctness” of the multiemployer bargaining unit] 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.” 518 U.S. at 250 (emphasis added).) And, like the
Brady plaintiffs, the Eller plaintiffs rely exclusively on pre-Brown caselaw to
argue that the nonstatutory labor exemption does not bar their claim.
The Eller plaintiffs contend that because they are not members of the
bargaining unit, the nonstatutory labor exemption cannot apply. That is
simply wrong as a matter of law. See, e.g., Clarett v. NFL, 369 F.2d 124, 139
(2d Cir. 2004) (rejecting argument that nonstatutory exemption could not
apply to bar an antitrust claim by a prospective draftee challenging the
upcoming NFL Draft as a “group boycott”). Nor have the plaintiffs cited any
law that would subject to antitrust challenge retired players’ claims about
threatened deprivation of collectively-bargained retirement benefits. Cf.
Atwater v. NFL, 626 F.3d 1170, 1185 (11th Cir. 2010) (fact that retired
players were not members of the bargaining unit did not mean that their
claims were not preempted by federal labor law).
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In their complaint, the Eller plaintiffs seek to invoke the purported
“waiver” in Article LVII, Section 3(b) of the CBA (Article XVIII, Section 5(b)
of the SSA). (See Compl. ¶¶116-20.) Their attempt to do so fails for the same
reasons that the Brady plaintiffs’ similar argument fails. (See Opp. 39-42.)
Because the players purported to end the NFLPA’s collective bargaining
status before expiration of the CBA and SSA, presumably in an effort to avoid
the six-month bar on antitrust suits imposed by Section 3(a), the “waiver”
contemplated by Section 3(b) simply does not apply.
The purported “reaffirmation” of the disclaimer is irrelevant.
“Reaffirming” a pre-expiration vote “to end the collective bargaining status of
the NFL,” Section 3(b) (emphasis added), does not and cannot change the fact
that the vote being “reaffirmed” was taken pre-expiration; nor can it change
the fact that if, as plaintiffs contend, the pre-expiration vote was effective,
there was no collective bargaining status post-expiration “to end.” The
predicate for Section 3(b)—a vote after expiration “to end” the collective
bargaining status of the NFLPA—simply has not been met.
Even if the predicate for Section 3(b) were satisfied, the waiver itself
would have to be declared void as against public policy. Plaintiffs cannot
seek to hold the NFL liable under the antitrust laws for conduct that is
exempt from antitrust scrutiny. If invoked to prevent the NFL from
demonstrating that the antitrust laws are not applicable here, Section 3(b)
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and its SSA counterpart would be void as against public policy. See, e.g.,
Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1397 (9th Cir.
1991) (voiding provision in consent judgment, citing Town of Newton v.
Rumery, 480 U.S. 386, 392 (1987) and Restatement (Second) of Contracts
§ 178 (1981)).
In any event, there can be no argument that Section 3(b) operates to
waive the jurisdictional bar of the Norris-LaGuardia Act, the doctrine of
primary jurisdiction, the NFL’s right to pursue an unfair labor practice
charge before the Board 6, or the “sufficiently distant in time and in
circumstances” test of Brown—each of which is sufficient to find that
plaintiffs are not entitled to an injunction.
2. Antitrust Injury. The moving Eller plaintiffs cannot show antitrust
injury because the indirect injury that they allege—a speculative possibility
that their pensions or other benefits will be affected—is not the type of injury
against which the antitrust laws protect.
The Eller plaintiffs misstate the law in arguing that all that is required
under Section 16 of the Clayton Act to seek injunctive relief “is that the
alleged anticompetitive conduct creates a threat of injury, not that actual
injury exists currently.” (Mem. 3, citing Cargill, Inc. v. Monfort of Colo., 479
The NFL’s rights under the NLRA to present charges to the Board are not
waivable. See, e.g., JI Case Co. v. NLRB, 321 U.S. 332, 337 (1944).
6
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U.S. 104, 122 (1986).) In fact, in Cargill, the Supreme Court held that a
private plaintiff invoking Section 16 of the Clayton Act as a basis for
injunctive relief must demonstrate “antitrust injury,” a component of
“antitrust standing.” 479 U.S. at 122; see also Ginsburg v. Inbev NV/SA, 623
F.3d 1229, 1235 (8th Cir. 2010).
Plaintiffs invoking Section 16 must show that their injuries will be
“inflicted directly” by the alleged anticompetitive conduct, and that they will
suffer more than “indirect, secondary, or remote injury.” Lovett v. Gen.
Motors Corp., 975 F.2d 518, 520-521 (8th Cir. 1992). “In short, consequential
injury is not an antitrust injury.” Id. at 521.
The moving Eller plaintiffs are all retired players; none is a
“competitor, participant, nor consumer” within the allegedly restrained
market for player services. Henke Enters. v. Hy-Vee Food Stores, Inc., 749
F.2d 488, 489-90 (8th Cir. 1984); see also S.D. v. Kan. City S. Indus., Inc., 880
F.2d 40, 46 (8th Cir. 1989) n.6 (“[T]he fact that a party is not a participant in
the relevant market must be weighed heavily against a grant of standing.”).
The injuries that the moving plaintiffs allege, a potential loss of
retirement benefits and the potential absence of fine money to fund charities
from which indigent retired players may seek help in the future, is at best
“incidental to the alleged antitrust activity” and not antitrust injury of the
kind that Section 16 requires. See Lovett, 975 F.2d at 521; see also Kan. City
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S. Indus., Inc., 880 F.2d at 47 (“Because the antitrust laws were intended to
protect competition, standing has been generally limited to actual
participants in the relevant market: competitors and consumers.”).
The moving Eller plaintiffs also cannot show that they “face a
sufficiently impending or imminent threat to satisfy the standing
requirement of § 16 [of the Clayton Act].” Fair Issac Corp. v. Experian
Information Solutions, Inc., 645 F. Supp. 2d 734, 754 (D. Minn. 2009). They
allege that if the lockout lasts for more than a year, and if there is no new
CBA, and if the NFL Retirement Plan is then terminated, then they might
lose benefits. The first three components are obviously not immediate; the
fourth is simply wrong. The Retirement Plan itself provides that even in the
event of termination “the right of affected Players to benefits accrued to the
date of such termination … will be nonforfeitable.” (Pls.’ Ex. Q at 33.) 7
B.
The balance of the equities favors the NFL.
Finally, the balance of the equities favors the NFL. For the same
reasons that they cannot show antitrust injury, the moving plaintiffs here
cannot show any harm—let alone harm that is immediate and irreparable, or
Even if the Court were to consider the motion brought on behalf of the
subsequently-added plaintiff, Mr. Walker, there would still be no ground for
an injunction. If drafted, Mr. Walker (like Mr. Miller in the Brady case)
would fall within the bargaining unit represented by the NFLPA, and his
antitrust claim against the lockout would not have a likelihood of success on
the merits due, among other reasons, to the nonstatutory labor exemption.
7
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that would not have an adequate remedy at law in a claim for damages,
under ERISA or otherwise.
On the other hand, the NFL would be irreparably harmed by an
injunction because it would put the NFL clubs in a Catch-22 of being
compelled by an antitrust court to choose between exposing themselves to
antitrust challenge under the plaintiffs’ own theories or attempting to
operate without any common terms and conditions of employment of the kind
necessary to sustain competitive balance on the football field.
A preliminary injunction against the lockout also would undoubtedly
place the NFL in a situation in which it would be impossible to unscramble
the eggs and restore the League and individual clubs to the positions they
hold today. (See Opp. 45-47.)
In addition, here, as in Brady, the public interest in collective
bargaining—especially multi-employer collective bargaining—free from
intervention by antitrust courts favors denial of the injunction. (See Opp. 4749.)
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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
(914) 749-8200
(914) 749-8300 (fax)
William A. Isaacson (pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
5301 Wisconsin Ave., NW
Washington, DC 20015
(202) 237-2727
(202) 237-6131 (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
(612) 766-7806
(612) 766-1600 (fax)
Gregg H. Levy (pro hac vice)
Benjamin C. Block (pro hac vice)
COVINGTON & BURLING LLP
1201 Pennsylvania Ave., NW
Washington, DC 20004-2401
(202) 662-6000
(202) 662-6291 (fax)
Counsel for the NFL and NFL Clubs
April 4, 2011
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