Brady et al v. National Football League et al

Filing 82

REPLY MEMORANDUM in Support (originally filed in 11-748 SRN/JJG on 4/4/11) re 58 MOTION for Preliminary Injunction filed by Obafemi Ayanbadejo, Ryan Collins, Carl Eller, Priest Holmes, Antawan Walker. (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, Antawan Walker, and Ryan
Collins, individually, and on behalf of all
others similarly situated,
Civil No. 11-CV-748 (SRN/JJG)
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.

REPLY
MEMORANDUM
IN
SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION

TABLE OF CONTENTS
I. 

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

II. 

ANTITRUST STANDING EXISTS. .................................................................................... 2 

III.  THE STATUTORY LABOR ANTITRUST EXEMPTION IS INAPPLICABLE. ............ 10 
IV.  THE NFL’S PRIMARY JURISDICTION ARGUMENT LACKS MERIT. ...................... 18 
V. 

THE NONSTATUTORY LABOR ANTITRUST EXEMPTION IS ALSO
INAPPLICABLE. ................................................................................................................ 20 

VI.  CONCLUSION.................................................................................................................... 22 

ii

TABLE OF AUTHORITIES
Page(s)
CASES
& Helpers, Loc. No. 604 v. Paddock-Chrysler Plymouth, Inc.,
365 F.Supp. 599 (E.D. Mo. 1973)......................................................................................12, 13
American Ad Management, Inc. v. General Tel. Co. of Calif.,
190 F.3d 1057-58 (9th Cir. 1999) ..............................................................................................4
Betteroads Asphalt Corp. v Federacion de Camioneros,
391 F.Supp. 1035 (D.P.R. 1975)..............................................................................................15
Boise Cascade Int’l Corp. v. Northern Minn. Pulpwood Producers Ass’n,
294 F.Supp. 1015 (D. Minn. 1968)..........................................................................................15
Boris v. National Hockey League,
No. CV 83-4980 LEW ...............................................................................................................5
Bowman v. NFL,
402 F.Supp. 754 (D. Minn. 1975)........................................................................................5, 17
Brady v. NFL,
No. 0:11-cv-00639-SRN-JJG (D. Minn.) ..............................................................................4, 5
Brown v. Pro Football, Inc.,
518 U.S. 231 (1996).................................................................................................................20
Burlington Northern Railroad Co. v. Bhd. of Maintenance of Way Employees,
481 U.S. 429, 437 (1987)...............................................................................................................11
Camping Constr. Co. v. District Council of Ironworkers,
915 F.2d 1333 (9th Cir. 1990) .................................................................................................11
Campos v. Ticketmaster Corp.,
140 F.3d 1166 (8th Cir. 1998) ...............................................................................................3, 4
Cargill, Inc. v. Monfort of Colo.,
479 U.S. 104 (1986)...............................................................................................................2, 4
Chicago Midtown Milk Distribs. v. Dean Foods Co.,
Nos. 18577 and 18578, 1970 WL 2761 (7th Cir. July 9, 1970).........................................12, 13
Clarett v. NFL,
306 F.Supp.2d 379 (S.D.N.Y.),................................................................................5, 17, 20, 21
iii

Converse v. Highway Constr. Co. of Ohio,
107 F.2d 127 (6th Cir. 1939) ...................................................................................................15
Denver Rockets v. All-Pro Management, Inc.,
325 F.Supp. 1049 (C.D. Cal. 1971) .....................................................................................5, 17
Five Smiths, Inc. v. NFLPA,
788 F.Supp. 1042 (D. Minn. 1992)..........................................................................................21
Ginsberg v. InBev NV/SA,
623 F.3d 1229 (8th Cir. 2010) ...................................................................................................3
Henke Enterprises v. Hy-Vee Food Stores, Inc.,
749 F.2d 488 (8th Cir. 1984) .....................................................................................................4
Jackson v. NFL,
802 F. Supp. 226 (D. Minn. 1993)...............................................................................12, 17, 18
Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s U.,
457 U.S. 702 (1982).................................................................................................................16
Jones v. NFL,
515 U.S. 1137 (1995) (“White I”)......................................................................................17, 20
Kapp v. NFL,
390 F.Supp. 73 (N.D. Cal. 1974) ...............................................................................................6
Linesman v. World Hockey Ass’n,
439 F.Supp. 1315 (D. Conn. 1977)......................................................................................5, 17
Local 1814, Int'l Longshoremen's Ass'n v. N.Y. Shipping Ass'n, Inc.,
965 F.2d 1224 (2d Cir. 1992)...................................................................................................12
Los Angeles Memorial Coliseum Comm’n v. NFL,
791 F.2d 1356 (9th Cir. 1986) .................................................................................................10
Lovett v. General Motors Corp.,
975 F.2d 518 (8th Cir. 1992) .....................................................................................................4
Mackey v. NFL,
543 F.2d 606 (8th Cir. 1976) ...................................................................................6, 17, 19, 20
McNeil v. NFL,
790 F.Supp. 871 (D. Minn. 1992)..................................................................................6, 17, 20
NFLPA v. NFL,
598 F.Supp.2d 971 (D. Minn. 2008)....................................................................................8, 18
iv

Ozark Air Lines, Inc. v. Nat'l Mediation Bd.,
797 F.2d 557 (8th Cir. 1986) ...................................................................................................11
Piazza v. Major League Baseball,
831 F.Supp. 420 (E.D. Pa. 1992) .............................................................................................10
Plumbers & Steamfitters Local 598 v. Morris,
511 F. Supp. 1298 (E.D. Wash. 1981) .........................................................................12, 13, 14
Powell v. NFL,
690 F.Supp. 812 (D. Minn. 1988)............................................................................................18
Powell v. NFL,
930 F.2d 1293 (8th Cir. 1989) ......................................................................................... passim
Radovich v. NFL,
352 U.S. 445 (1957)...................................................................................................................6
Robertson v. NBA,
389 F.Supp. 867 (S.D.N.Y. 1975)..................................................................................6, 17, 20
Smith v. Pro-Football,
420 F. Supp. 738 (D.D.C. 1976) ................................................................................................6
Taylor v. Local No. 7, Int’l U. of Journeymen Horseshoers of the United States &
Canada (AFL-CIO),
353 F.2d 593 (4th Cir. 1965) ...................................................................................................15
White v. NFL,
822 F.Supp. 1389 (D. Minn. 1993)..........................................................................................17
White v. NFL,
No. 4-92-906 (DSD), 2011 WL 706319 (D. Minn. March 1, 2011) (“White II”) ...............9, 17
STATUTES
15 U.S.C. §26...................................................................................................................................2
29 U.S.C. §§101-15 .........................................................................................................................1
29 U.S.C. §104....................................................................................................................... passim
29 U.S.C. §107.........................................................................................................................13, 18
OTHER AUTHORITIES
“Bert Bell/Pete Rozelle NFL Player Retirement Plan” (the “Plan”) .......................................2, 7, 8
v

Fed. R. Civ. P. 23(b)(2)..................................................................................................................17
http://www.dol.gov/ebsa/criticalstatusnotices.html .........................................................................9
http://www.dol.gov/ebsa/pdf/e-notice092210001.pdf .....................................................................9
laws. NFL Mem., pp. 15-16. Second ...............................................................................................1
NFL Mem., pp. 3-8. Third ...........................................................................................................1, 2

vi

I.

INTRODUCTION
Plaintiffs Carl Eller, Priest Holmes, Obafemi Ayanbadejo, Antawan Walker, 1 and

Ryan Collins (collectively “Plaintiffs”) hereby submit this reply brief in support of their
motion to enjoin preliminarily the NFL and its member clubs from continuing a lockout
that threatens to cancel the 2011 NFL playing season and in response to the
“Memorandum of Law of the National Football League and Its Member Clubs In
Opposition To Plaintiffs’ Motion for a Preliminary Injunction” (April 4, 2011) (Dkt. No.
34) (“NFL Mem.”).
In its opposing papers, the league has advanced various reasons why the motion
should be denied. First, it contends that former and prospective NFL players lack
standing to sue under the antitrust laws. NFL Mem., pp. 15-16. Second, it contends that
the statutory labor antitrust exemption of the Norris-La Guardia Act (29 U.S.C. §§10115) (“Norris-La Guardia”) bars injunctive relief here. NFL Mem., pp. 3-8. Third, it
contends that the doctrine of primary jurisdiction requires that the National Labor
Relations Board (“NLRB”) first decide whether the National Football League Players
Association (“NFLPA”) has properly renounced its representative status. Id., pp. 8-12.
Fourth, the NFL argues that the nonstatutory labor antitrust exemption bars Plaintiffs’
request for injunctive relief. Id., pp. 12-15. Finally, it contends that injunctive relief
1

Plaintiff Antawan Walker (“Walker”) was added as a plaintiff in the “First Amended
Class Action Complaint” (April 1, 2011) (Dkt. No. 33) (“FACAC”). He is a prospective
player in the National Football League (“NFL” or “league”) who has not been selected in
any College Draft and not commenced any negotiations for employment with any NFL
member club. Walker joins in the present motion and his status needs to be evaluated in
deciding whether or not to grant preliminary injunctive relief.
1

should be denied because the balance of hardships tips in the league’s favor. Id., pp. 1718.relief as well. None of these arguments are meritorious.
II.

ANTITRUST STANDING EXISTS.
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. FACAC ¶21. Neither constituent group is employed by the NFL or is member
clubs. As explained at paragraph 22 of the FCAC, 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 NFLPA, the union that formerly represented that CBU.
All putative class members have standing pursue claims for injunctive relief under
Section 16 of the Clayton Act (15 U.S.C. §26). As the United States Supreme Court
explained in Cargill, Inc. v. Monfort of Colo., 479 U.S. 104, 110-11 (1986) (“Cargill”):
Section 16 of the Clayton Act provides in part that “[a]ny
person, firm, corporation, or association shall be entitled to
sue for and have injunctive relief ... against threatened loss or
damage by a violation of the antitrust laws....” 15 U.S.C. § 26.
It is plain that § 16 and § 4[of the Clayton Act] do differ in
2

various ways. For example, § 4 requires a plaintiff to show
actual injury, but § 16 requires a showing only of
“threatened” loss or damage; similarly, § 4 requires a
showing of injury to “business or property,” cf. Hawaii v.
Standard Oil Co., 405 U.S. 251…(1972), while § 16 contains
no such limitation.

The Eighth Circuit has further explained, in the context of claims by indirect
purchasers of allegedly price-fixed goods or services, that a plaintiff seeking an antitrust
injunction is not subject to the same standing requirements that would be imposed on a
plaintiff seeking antitrust damages:
Indirect purchaser status does not bar the plaintiffs from
seeking injunctive relief under § 16 of the Clayton Act. The
concerns of the direct purchaser rule have mainly to do with
the complexities of incidence analysis, complexities that do
not arise when the courts must consider the propriety of
injunctive relief. As Professors Areeda and Hovenkamp
explain, “An equity suit neither threatens duplicative
recoveries nor requires complex tracing through the
distribution chain. There are no damages to be traced, and a
defendant can comply with several identical injunctions as
readily as with one. Illinois Brick has not therefore barred an
indirect purchaser's suit for an injunction.” Phillip E. Areeda
and Herbert Hovenkamp, Antitrust Law ¶ 371d, at 259
(1995)....

Campos v. Ticketmaster Corp., 140 F.3d 1166, 1172 (8th Cir. 1998), cert. denied, 525
U.S. 1102 (1999) (“Campos”). See Ginsberg v. InBev NV/SA, 623 F.3d 1229, 1233 (8th
Cir. 2010). Here, as well, no tracing or allocation of monetary losses, and no concerns
about duplicative injunctive remedies should bar the relief sought.
The NFL responds correctly that Plaintiffs would still be obligated to demonstrate
“antitrust injury” under Section 16 of the Clayton Act, citing Cargill. NFL Mem., p. 16.
3

In Cargill, no such injury was found because the plaintiff suffered decreased profits due
to competition. 479 U.S. at 114-15. See Campos, 140 F.3d at 1172. The NFL then relies
on a series of cases denying standing to antitrust plaintiffs seeking damages under
Section 4 of the Clayton Act. NFL Mem., p. 16. See Lovett v. General Motors Corp., 975
F.2d 518, 520 (8th Cir. 1992), cert. denied, 510 U.S. 1113 (1884); Henke Enterprises v.
Hy-Vee Food Stores, Inc., 749 F.2d 488, 489 (8th Cir. 1984). Those cases are inapposite
here.
The NFL also contends that the Plaintiffs who are retired or former plaintiffs are
not participants in the market for professional football services. The short answer is they
are; they derive direct benefits from the playing of NFL games. Cf. American Ad
Management, Inc. v. General Tel. Co. of Calif., 190 F.3d 1057-58 (9th Cir. 1999)
(“market participants” not confined to competitors or consumers, but may include others
who can suffer antitrust injury, such as potential entrants, licensors, suppliers, landlords,
dealers and indirect purchasers).

But even if they were not deemed to be market

participants, they would still have standing to seek injunctive relief under Section 16 of
the Clayton Act. In Campos, the contention was that Ticketmaster and others were fixing
the prices charged for ticket distribution services to promoters of shows. The plaintiffs
were fans who bought tickets from promoters and the Eighth Circuit held that they stated
a claim for injunctive relief. 140 F.3d at 1172.
Here, the simple fact is that the league’s lockout has directly and simultaneously
harmed multiple groups of plaintiffs. Active NFL players, who are represented in Brady
v. NFL, No. 0:11-cv-00639-SRN-JJG (D. Minn.) (“Brady”), are being deprived of the
4

opportunity to play in football games, earn their wages, and build their professional
careers. Prospective players, who are represented in this case and in Brady, suffer similar
deprivations. Retired or former NFL players, who are represented only in this case, are
actually or potentially deprived of health and retirement benefits that many need in order
to survive and may be faced with the closure or financial endangerment of their Plan. All
of these harms are direct but distinct and may be properly pursued by the constituent
groups suffering them.
With respect to prospective players, there are numerous cases recognizing
implicitly or explicitly the right of a potential player in a sports league to sue under the
antitrust laws to challenge (usually on a group boycott theory) eligibility or exclusionary
rules blocking or limiting player entry into the league. See, e.g., Clarett v. NFL, 306
F.Supp.2d 379, 397-98 (S.D.N.Y.), rev’d on other grounds, 369 F.3d 124 (2d Cir. 2004)
(“Clarett”) (challenge to league eligibility rule; antitrust standing found); Linesman v.
World Hockey Ass’n, 439 F.Supp. 1315, 1320 (D. Conn. 1977) (“Linesman”) (court
preliminarily enjoined sports league’s age limitation on the hiring of rookie hockey
players); Bowman v. NFL, 402 F.Supp. 754, 756 (D. Minn. 1975) (“Bowman”) (court
preliminarily enjoined NFL’s policy of not hiring former players of the World Football
League); Denver Rockets v. All-Pro Management, Inc., 325 F.Supp. 1049, 1058-62 (C.D.
Cal. 1971), injunction reinstated sub nom. Haywood v. National Basketball Ass’n, 401
U.S. 1204 (1971) (“Denver Rockets”) (enjoining National Basketball Association’s
(“NBA”) eligibility rules); Boris v. National Hockey League, No. CV 83-4980 LEW
(Kx), 1984 WL 894 at *4 (C.D. Cal. Feb, 28, 1984) (settlement decree resolving
5

challenge to National Hockey League’s eligibility rules). The NFL effectively concedes
that Walker, the prospective NFL player, has antitrust standing. NFL Mem., p. 17 n.7.
There can also be no dispute that former professional sports players can challenge
ongoing anticompetitive practices of a sports league. See, e.g., Radovich v. NFL, 352 U.S.
445, 448-50 (1957) (former NFL player stated an antitrust claim for conspiracy to destroy
the All-American Conference through blacklisting and other means); Mackey v. NFL, 543
F.2d 606, 609, 622 (8th Cir. 1976), cert. dismissed, 434 U.S. 801 (1977) (“Mackey”)
(group of present and former NFL players successfully challenged NFL’s Rozelle Rule);
McNeil v. NFL, 790 F.Supp. 871, 875, 897(D. Minn. 1992) (“McNeil”) (eight former
NFL players allowed to proceed with challenge to NFL’s Plan B rules); Smith v. ProFootball, 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) (“Smith”) (in response to challenge by former
NFL player, court deemed NFL’s College Draft to be an unreasonable restraint of trade);
Robertson v. NBA, 389 F.Supp. 867, 890-903 (S.D.N.Y. 1975) (“Robertson”) (14 former
players could represent class that included future players to challenge NBA’s and
American Basketball Association’s draft, reserve, blacklisting and boycott policies;
defense summary judgment motions denied and class certified); Kapp v. NFL, 390
F.Supp. 73, 82 (N.D. Cal. 1974), vacated in part on other grounds, 1975 WL 959 (N.D.
Cal. April 11, 1975), aff’d in part and dismissed in part as moot, 586 F.2d 644 (9th Cir.
1978), cert. denied, 441 U.S. 907 (1979) (former NFL player had standing to challenge
Rozelle rule, draft rule and other rules, and won summary judgment).

6

The NFL contends that retired or former players are not direct victims of the
league’s lockout, but instead suffer only from some remote, indirect or secondary injury.
NFL Mem., p. 16. That is simply not the case. Retirees and other former NFL players
who receive retirement and health benefits are not suffering under the threat of mere
collateral damage from the NFL’s lockout. As the FACAC alleges (¶¶94-95, 104), the
average career of an NFL player is short and they can suffer devastating injuries or long
term effects (such as the “dementia” that the NFL’s 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.
Several programs sponsored by the NFL Player Care Foundation and The
Professional Athletes Foundation (“Foundations”) will be put in jeopardy because they
are funded in part by money received if the 2011 NFL season goes forward. FACAC,
¶105. The lockout means these sources of revenue will no longer support these programs.
This could result in the removal of vital services for the retirees – which particularly
affects those who would otherwise not be able to afford them, e.g., the high percentage of
retired players who live off of less than $200 per month in pensions. If these programs
are not provided in a timely way, it could result in a player not finding an illness in time,
not obtaining vital prescription drugs, and/or medical treatment. Id. 2

2

The affected programs include: (a) the Cardiovascular Health Program, which provides
extensive cardiovascular screenings and education; (b) obesity screening and nutritional
counseling; (c) the prostate screening program; (d) the NFL Neurological Care Program,
which evaluates and treats spine-related conditions among retired players; (e) priority
7

Former or retired players are injured by the lockout in other ways as well. Id. They
may be denied access to their medical records which could prevent a timely
diagnosis. Testing and treatment for dementia under the NFL’s 88 Plan will not be
allowed for those retired players who were not enrolled prior to the expiration of the 2006
CBA. Tuition assistance programs for retired players will be eliminated and a retired
player may be unable to finish his education. The presence of the lockout and the absence
of a new CBA mean that there will not be needed revenue that might permit medical
monitoring for retired players. With the high rate of retired players being diagnosed with
dementia and deceased retired players being diagnosed with CTE (Chronic Traumatic
Encephalopathy), the faster such monitoring procedures are instituted, the faster players
will be able to receive treatment. And NFL Hall of Famers and prospective Hall of
Famers may not receive the once in a lifetime Hall of Fame experience that is normally
guaranteed to Hall of Famers because the Hall of Fame game may be canceled due to the
lockout and the funds that are obtained through that game go toward funding the Hall of
Fame ceremonies. 3
The NFL makes the point that even if the Plan is dissolved due to a continued
lockout with no CBA, the benefits accrued up to that date are nonforfeitable. NFL Mem.,
access to eligible retired players for assisted living; (e) the Discount Prescription Drug
Card program; (f) the Medicare supplement program; and (f) the Player Assistance Trust,
which provides financial assistance to former players for financial crises, completion of
bachelor degrees, and programs provided by the NFL Care Foundation.
3

See NFLPA v. NFL, 598 F.Supp.2d 971, 982 (D. Minn. 2008) (“NFLPA”) (inability to
play in Pro Bowl deemed to be part of irreparable harm supporting players’ request for an
injunction).
8

p. 17. That argument misses the point. The preliminary injunction is sought to ensure that
future league contributions to the Plan are protected. This is a legitimate concern. In
August of 2010, the United States Department of

Labor (“DoL”) put the Plan on

"endangered" status because the Plan's funded percentage was only 75%. 4 The DoL’s
letter to the Plan (available from its website at http://www.dol.gov/ebsa/pdf/enotice092210001.pdf) noted that the Plan needed to devise a “funding improvement plan”
and said that "if the collective bargaining agreement is extended and provides for future
contributions by the NFL Clubs under the same methodology as currently exists, those
future contributions will exceed the minimum amounts required under federal law for a
funding improvement plan." (Emphasis added.) Of course, the league’s “lockout
strategy,” culminating in its actual lockout (White v. NFL, No. 4-92-906 (DSD), 2011
WL 706319 at *1-*5 (D. Minn. March 1, 2011) (“White II”); FACAC ¶¶51-88)),
precluded that possibility. If the 2011 NFL season is not played and the revenue
otherwise obtainable from that season is not available to the Plan, it could well fall from

4

As DoL explains at its website, http://www.dol.gov/ebsa/criticalstatusnotices.html :
“[u]nder Federal pension law, if a multiemployer pension plan is determined to be in
critical or endangered status, the plan must provide notice of this status to participants,
beneficiaries, the bargaining parties, the Pension Benefit Guaranty Corporation and the
Department of Labor. This requirement applies when a plan has funding or liquidity
problems, or both, as described in the Federal law. If a plan is in critical status,
adjustable benefits may be reduced and no lump sum distributions can be made. Pension
plans in critical and endangered status are required to adopt a plan aimed at restoring the
financial health of the pension plan.”

9

“endangered” to “critical” status and the former and retired NFL players who are
beneficiaries of the Plan could be injured irretrievably.
In sum, the retired and former NFL players, like current and prospective players,
are suffering actual or threatened antitrust injury directed against them, for which they are
entitled to injunctive relief. 5
III.

THE STATUTORY LABOR ANTITRUST EXEMPTION IS
INAPPLICABLE.
The NFL argues that the statutory labor antitrust exemption embodied in Norris-

LaGuardia bars Plaintiffs’ claims. It reasons that under 29 U.S.C. §104, this Court lacks
jurisdiction to issue an injunction in “any case involving or growing out of any labor
dispute to prohibit any person or persons participating or interested in such dispute (as
these terms are herein defined) from doing, whether singly or in concert, any of the
following acts.” There follows a list of nine types of conduct; employer lockouts are not
listed.
In interpreting this language, it is important to understand both its purpose and its
subsequent judicial interpretation. it is well-settled that courts may issue injunctions in
labor disputes so long as the injunctive relief is consistent with the Act's underlying
5

Cf. Los Angeles Memorial Coliseum Comm’n v. NFL, 791 F.2d 1356, 1365 (9th Cir.
1986), cert. denied, 484 U.S. 826 (1987) (the Los Angeles stadium was held to have
standing to raise an antitrust damage claim against a league rule prohibiting the Oakland
Raiders from transplanting to Los Angeles. The Ninth Circuit held that the stadium
suffered direct harm because of the NFL’s conduct, not some mere “ripple effect” based
on its “indispensable and intimate connection with professional football and football
teams. An injury such as that suffered by the Coliseum in the present case cannot be
characterized fairly as an indirect ‘ripple effect.’”); Piazza v. Major League Baseball, 831
F.Supp. 420, 432-34 (E.D. Pa. 1992) (individual partners in partnership denied the right
to enter sports league with a new club stated an antitrust claim).
10

policies “to safeguard the right to strike in a labor dispute” (the “core” concern of the
Act), and to encourage the arbitration of labor disputes. See Ozark Air Lines, Inc. v. Nat'l
Mediation Bd., 797 F.2d 557, 562-63 (8th Cir. 1986). See also Burlington Northern
Railroad Co. v. Bhd. of Maintenance of Way Employees, 481 U.S. 429, 437 (1987)
(“[Norris-LaGuardia] expresses a basic policy against the injunction of activities of labor
unions.”)
Courts have recognized that Norris-LaGuardia’s anti-injunction provision has to be
read in light of subsequent judicial and legislative developments. As the Ninth Circuit
explained in Camping Constr. Co. v. District Council of Ironworkers, 915 F.2d 1333,
1343 (9th Cir. 1990), cert. denied, 500 U.S. 905 (1991) (emphasis in original):
With many statutes our inquiry would end with the discovery
of a literal meaning so plain. However, the Supreme Court
has made it clear that the Norris-LaGuardia Act is not
necessarily to be construed literally in all circumstances.
Enacted in 1932, the Norris-LaGuardia Act is one of the
oldest surviving pieces of labor legislation in this country.
More recent acts providing for more extensive regulation of
labor-management relations (such as the Wagner Act, the
Taft-Hartley Act, and Title VII of the Civil Rights Act of
1964) have changed the face of labor law in the United States,
yet there has been no accompanying revision of the NorrisLaGuardia Act. The courts have thus been left with the task
of attempting to accommodate Norris-LaGuardia to later acts
in order to create a coherent whole. … The result has been
that, in spite of what the Norris-LaGuardia Act says, the
Supreme Court has held that federal courts do have
jurisdiction to issue injunctions in some labor disputes, even
in some of the circumstances covered by section 4's outright
ban.
It is well-established that the Norris-LaGuardia Act must “give way” when its
“jurisdictional bar” is inconsistent with “the mandates of [another] specific federal
11

statute.” See Local 1814, Int'l Longshoremen's Ass'n v. N.Y. Shipping Ass'n, Inc., 965
F.2d 1224, 1232 (2d Cir. 1992), cert. denied, 506 U.S. 963 (1993) (enjoining consent
judgment to accommodate the policies underlying federal racketeering statute); Jackson
v. NFL, 802 F. Supp. 226, 233-34 (D. Minn. 1993) (“Jackson”) (“the Act [NoeeisLaGuardia does not preclude injunctive relief' because “such relief will not undermine
any labor policy set forth in the Act” and because denying such relief would “justify the
continued application of a system found illegal” under federal antitrust statutes).
The NFL relies on three cases that it claims recognize the statutory bar on
injunctions applies to lockout activity: Plumbers & Steamfitters Local 598 v. Morris, 511
F. Supp. 1298, 1311 (E.D. Wash. 1981) (“Morris”); Automobile Transport Chauffeurs,
demonstrators & Helpers, Loc. No. 604 v. Paddock-Chrysler Plymouth, Inc., 365 F.Supp.
599 (E.D. Mo. 1973) (“Paddock”) and Chicago Midtown Milk Distribs. v. Dean Foods
Co., Nos. 18577 and 18578, 1970 WL 2761 (7th Cir. July 9, 1970) (“Dean Foods”). 6 The
cases on which the NFL relies are distinguishable.
In Dean Foods, a lockout was not the subject of a temporary restraining order
(“TRO”); it was the defendants’ refusal to sell milk to master vendors based on their
lockout against the relevant union that was enjoined. The Seventh Circuit reversed the
grant of the TRO, but did not cite 29 U.S.C. §104. It did note that there was a basis to

6

It also relies on the fact that under the Labor Management Relations Act (“LMRA”), the
President of the United States can enjoin a lockout imperiling national security. The fact
that the President is empowered to do so in certain instances does not mean that courts
were disempowered to do so in others.
12

conclude that the master vendors were represented by the union for collective bargaining
purposes. 1970 WL 2761 at *1. That is not true here. No case has followed Dean Foods.
In Paddock, the Court was dealing with a request for an injunction under NorrisLaGuardia (pursuant to 29 U.S.C. §107) and the LMRA. It did not construe 29 U.S.C.
§104. More importantly, there was a factual dispute as to whether a lockout had occurred
because picketing employees had been allowed to return to work. 365 F.Supp. at 601.
The district court did not say that lockouts cannot be enjoined; it stated that the plaintiff
had not made a sufficient showing to warrant injunctive relief, noting that a prior TRO
had been “improvidently granted because of the gross contradictions in the verified
complaint and the actual facts.” Id. at 602. No subsequent decision has cited Paddock.
In Morris, members of a local union were locked out in a dispute with a MCA, a
multi-employer collective bargaining agent for mechanical contractor firms, over
exclusive bargaining rights. The local began entering into collective bargaining
agreements with non-MCA members. The MCA brought an unfair labor charge, saying
the local was trying to withdraw from a historical bargaining unit. That matter settled and
the local filed an unfair labor charge of its own alleging that the lockout resulted from a
conspiracy in support of MCA’s goal to force the local to recognize MCA as the
exclusive bargaining agent for all firms in the local's jurisdiction. See 511 F.Supp. at
1305. The district court found no restraint of trade:
Local began negotiations with non-MCA members shortly
after the lockout. It both recognized and signed an agreement
with a newly formed employer group during the strike and
lockout period. Obviously, its freedom to do so was
unimpaired by the lockout. Again, the question: what trade of
13

Local was restrained? Local and its employees relationship
with independent contractors was unaffected through the
strike and lockout. Indeed, Local's interests in relationships
with non-MCA members appears to have been strengthened.

Id. at 1309. In acknowleged dicta (id. at 1310-11), the court said the statutory labor
antitrust exemption applied, with very little analysis. Id. at 1311. This dicta is hard to
reconcile with the court’s previous statement that:
Local characterizes this [MCA’s exclusivity demand] as a
demand backed by the coercive force of the lockout. But
Local rejected MCA’s proposal, presented no counter
proposal, and struck, aware that the Defendants intended to
lockout. The union could freely reject any “demand” so long
as it bargained in good faith. Presented with an impermissible
motivated negotiating demand Local could have filed a
complaint with the NLRB. The union had other choices. It
could consent to an agreement containing an unlawful
demand and safely refuse to abide by a term the effective
enforcement of which would violate Section 1 or 2 of the
Sherman Act....It could sue for declaratory or injunctive
relief.
Id. at 1309 n. 6 (emphasis added). Morris is thus unpersuasive and no court has followed
it.
Under the NFL’s view, 29 U.S.C. §104 bars injunctive relief with respect to any
dispute that in any way arises from or is related to the differences between the league and
the NFLPA, no matter whom it is brought by or when it is brought. A plain reading of the
statute indicates, however, that disputants need not have an employer-employee
relationship only where the dispute concerns “the association or representation of persons
in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of
employment.” The Fourth Circuit has stated:
14

From its study of the Clayton and Norris-LaGuardia Acts and
the interpretation of those acts by the courts, the trial court
concluded, and we agree, that boycotting and price-fixing
activities, such as those engaged in by the defendants in the
instant case, would be exempt from operation of the antitrust
laws (1) if the parties to a dispute stand in the relationship of
employer and employee and dispute some aspect of that
relationship, or (2) if the employer-employee relationship of
others is the crux of the dispute between the parties.
Taylor v. Local No. 7, Int’l U. of Journeymen Horseshoers of the United States &
Canada (AFL-CIO), 353 F.2d 593, 605 (4th Cir. 1965), cert. denied, 384 U.S. 969
(1966). The employer-employee relationship must have a “central bearing” on the dispute
in question. Betteroads Asphalt Corp. v Federacion de Camioneros, 391 F.Supp. 1035,
1038 (D.P.R. 1975) (association of truck owners picketing manufacturer to give them
exclusive hauling rights not a labor dispute). See Converse v. Highway Constr. Co. of
Ohio, 107 F.2d 127, 131 (6th Cir. 1939) (coercion to join contractors’ association not a
labor dispute); Boise Cascade Int’l Corp. v. Northern Minn. Pulpwood Producers Ass’n,
294 F.Supp. 1015, 1024-25 (D. Minn. 1968) (“[t]he court is clear that the NorrisLaGuardia Act, 29 U.S.C. § 104, does not apply to the facts of this case so as to prevent
preliminary injunctive relief. It would seem that this is not a ‘labor dispute’ in the
traditional sense and thus that act has no application….Rather what is presented in the
case at hand is an apparent violation of the Sherman Act by virtue of what appears to be
an illegal boycott by what the trier to [sic] fact may ultimately well find to be a legal
organization”).

15

More

recently,

in

Jacksonville

Bulk

Terminals,

Inc.

v.

International

Longshoremen’s U., 457 U.S. 702, 712-13 (1982) (footnote omitted), which the league
cites in its brief (NFL Mem., p. 6), the United States Supreme Court explained that:
The critical element in determining whether the provisions of
the Norris-LaGuardia Act apply is whether “the employeremployee relationship [is] the matrix of the controversy.”
Columbia River Packers Assn., Inc. v. Hinton, 315 U.S. 143,
147…(1942). In this case, the Employer and the Union
representing its employees are the disputants, and their
dispute concerns the interpretation of the labor contract that
defines their relationship. Thus, the employer-employee
relationship is the matrix of this controversy.
Here, the dispute between Plaintiffs and the NFL—the continuance of the lockout
—does not concern the nature of any labor contract that defines their relationship. The
2006 CBA to which Plaintiffs were not parties (attached as Exhibit P to the prior
Declaration of Mark Feinberg (Dkt. No. 13)) has no provision dealing with a lockout
after the expiration of the agreement; it does contain a provision (Article IV §1)
precluding the NFL or its member clubs from engaging in any lockout, but only for the
duration of the agreement. 7 Moreover, the NFLPA has renounced its representational
status and no longer seeks to negotiate or arrange terms of employment; the 2006 CBA
has ended and no successor CBA is being discussed.

The employee-employer

relationship between active players and the NFL and its member clubs is not the “crux”
or “matrix” of the controversy between Plaintiffs and the NFL.
7

Indeed, in Powell v. NFL, 930 F.2d 1293, 1300 (8th Cir. 1989), cert. denied, 498 U.S.
1040 (1991) (“Powell I”), the Eighth Circuit suggested that even once a labor impasse
has been reached, “an employer’s continued adherence to the status quo is authorized.”
Under the logic of Powell I, the lockout ban in the 2006 CBA, should have continued to
have been adhered to by the NFL and its member clubs.
16

In addition, the NFL’s broad reading of Norris-LaGuardia is hard to square with
cases in this Circuit and district (as well as elsewhere) that have permitted the granting of
injunctive relief against the NFL and other sports leagues. The Eighth Circuit in Mackey
upheld an injunction against the Rozelle Rule, saying the statutory labor exemption was
intended to “insulate legitimate collective activity by employees….” 543 F.2d at 611. See
Powell v. NFL, 930 F.2d 1293, 1298 n.4 (8th Cir. 1989), cert. denied, 498 U.S. 1040
(1991) (“Powell I”); McNeil, 790 F.Supp. at 880-81. The statutory labor antitrust
exemption was also not applied in injunction cases like Bowman, Linesman, and Denver
Rockets. See Clarett, 306 F.Supp.2d at 391 n. 74 (statutory exemption deemed
inapplicable to league eligibility rules); White v. NFL, 822 F.Supp. 1389, 1411 (D. Minn.
1993), supplemented, 836 F.Supp. 1458 (D. Minn. 1993), aff’d, 41 F.3d 402, 406 (8th
Cir. 1994), cert. denied sub nom. Jones v. NFL, 515 U.S. 1137 (1995) (“White I”) (court
certified a settlement class under Fed. R. Civ. P. 23(b)(2), saying that “[t]he factual
circumstances of this case, and its predecessors, confirm that it is a case in which the
plaintiff class's claims for structural, injunctive relief ‘predominate’ over its claims for
damages”); Robertson, 389 F.Supp. at 886-90 (finding no exemption under labor laws);
White II, 2011 WL 706319 at *12 (court ordered a separate hearing at which injunctive
relief could be sought).
The statutory labor antitrust exemption was also explicitly not applied in Jackson,
where the district court said that “[i]t 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
17

of a system found illegal under the Sherman Act.” 802 F.Supp. at 233. See NFLPA, 598
F.Supp.2d at 978 (“[t]he Act, however, is not a blanket prohibition on any injunction in a
labor case”).
Even if the Court concludes that Plaintiffs’ claims might otherwise fall within 29
U.S.C. §104, the court in Jackson squarely held that the statutory antitrust exemption
ceases once a union renounces its representative status, as has happened here. 802
F.Supp. at 234. The NFL says that Judge Doty was not dealing with a lockout. NFL
Mem., p. 7. That is true, but his opinion does not turn exclusively on that distinction.
Judge Doty distinguished his prior ruling in Powell v. NFL, 690 F.Supp. 812 (D. Minn.
1988) primarily on the ground that “[t]he present case, however, is clearly distinguishable
from Powell as a result of the court's subsequent determination that the nonstatutory labor
exemption terminated after the players abandoned their union....” 802 F.Supp. at 234.
Finally, if the Court elects to treat the Plaintiffs’ claims as falling within the ambit
of Norris-LaGuardia, it should alternatively issue an injunction under 29 U.S.C. §107.
NFLPA, 598 F.Supp.2d at 978.
IV.

THE NFL’S PRIMARY JURISDICTION ARGUMENT LACKS MERIT.
The NFL contends that this court should defer to the primary jurisdiction of the

NLRB, before which the league has filed an unfair labor charge against the NLPA,
asserting that the union has engaged in a sham renunciation of its representative status
and has to return to the collective bargaining table. This argument is specious. The NFL
says that the union cannot turn its representative status on and off like a light switch. By
the same token, the league cannot yank some imaginary collar around the neck of the
18

NFLPA to coerce it to bargain collectively when its members have said they do not want
it to do so.
This argument is unavailing. Judge Doty rejected a similar argument in White I:
The court further concludes that, in the present context,
findings with respect to the reconstitution and recognition of
the NFLPA as the players' union are not within the primary
jurisdiction of the NLRB. The nonstatutory labor exemption
is a judicially created doctrine, and the definition of its scope
and application must be made by the federal courts, not the
NLRB. In order to determine whether the nonstatutory labor
exemption applies to the provisions of the Settlement
Agreement that have been incorporated into the new
Collective Bargaining Agreement, the court must make
preliminary findings that the Collective Bargaining
Agreement has been negotiated at arm's length by a valid
collective bargaining representative, and that the terms of the
agreement are mandatory subjects of collective bargaining. In
McNeil, the court held that the nonstatutory labor exemption
had ended because the NFLPA was no longer a union,
thereby rejecting the NFL's argument that such a
determination could only be made by the NLRB. See Powell
[v. NFL,], 764 F.Supp. [1351] at 1356-57 [(D. Minn. 19910
(“Powell II”)] (holding only in McNeil ). The court now finds
that the NFLPA has been validly reconstituted as a union as a
necessary predicate to its ruling on the applicability of the
nonstatutory labor exemption. The court therefore rejects any
claims that the findings concerning the nonstatutory labor
exemption are within the NLRB's primary jurisdiction.

Powell I, 836 F. Supp. at 1500-01 (footnote omitted).
Similarly, the district court said in Mackey, in an antitrust suit challenging the
league’s free agency rules:
8.1 The National Labor Relations Board does not have
exclusive jurisdiction over the subject matter of this lawsuit.

19

8.2 The National Labor Relations Board does not have
primary jurisdiction over issues necessary to the Court's
determination.
8.2.1 The doctrine of exclusive primary National Labor
Relations Board jurisdiction has never been applied by the
Supreme Court to avoid a determination on the merits of an
antitrust claim.
407 F.Supp. at 1011. Accord, Robertson, 389 F.Supp. at 877 (rejecting primary
jurisdiction defense based on NLRB authority).

V.

THE NONSTATUTORY LABOR ANTITRUST EXEMPTION IS ALSO
INAPPLICABLE.
The NFL also argues that the nonstatutory labor antitrust exemption bars

Plaintiffs’ claims. Plaintiffs contend that this exemption should not apply to a class that
was not a part of the CBU that used to exist. The NFL responds that the Second Circuit in
Clarett took a different view, finding that the antitrust claims of a prospective NFL player
challenging the league’s eligibility rules were barred. There are at least five responses to
this argument.
First, the Second Circuit disagreed with the Eighth Circuit’s analysis in Mackey,
which is, of course, controlling law here. See 369 F.3d at 133-34.
Second, there was no issue in Clarett of the union renouncing its representative
status. Where that has occurred, courts in this district have deemed the nonstatutory labor
antitrust exemption inapplicable. McNeil, 790 F.Supp. at 883-84; Powell II, 764 F.Supp.
at 1358-59. See Brown v. Pro Football, Inc., 518 U.S. 231 (1996). The Eighth Circuit
cited the Powell II decision in White I, saying that the decision recognized the NFLPA’s
20

“disclaimer of its status as exclusive bargaining representative, thus ending the
nonstatutory labor exemption.” 41 F.3d at 406.
Third, the eligibility rules at issue in Clarett were part of the relevant CBA; here,
the last applicable CBA said nothing about an employer lockout after the agreement
expired.
Fourth, the NFL’s current view of the scope of the nonstatutory labor antitrust
exemption is impossible to reconcile with its prior unsuccessful effort to sue the NFLPA
for allegedly attempting to fix player wages in violation of the antitrust laws. See Five
Smiths, Inc. v. NFLPA, 788 F.Supp. 1042 (D. Minn. 1992).
Finally, the NFL’s current views are also inconsistent with what it told the Eighth
Circuit in Powell I:
The League concedes that the Sherman Act could be found
applicable, depending on the circumstances, if a challenged
restraint related to a permissive rather than a mandatory
subject of bargaining; if the restraint had been imposed on
employees outside the collective bargaining process or had
not originally been proposed in good faith; or if the affected
employees ceased to be represented by a certified union.
930 F.2d at 1303 n. 12 (emphases added). 8

8

The NFL also makes arguments about the balance of equities.NFL Mem., p. 17 n. 7.
Those arguments have been refuted in Plaintiffs’ prior brief.
21

VI.

CONCLUSION
For all of the foregoing reasons, as well as those presented in Plaintiffs’ opening

brief, the request for preliminary injunctive relief should be granted.
Dated: April 4, 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 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]
22

[e-mail]
Attorneys for Plaintiffs

23