ST. LOUIS -- Lawyers for the NFL and its players met before a three-judge panel Friday at the U.S. 8th Circuit Court of Appeals, with the judges considering the league's appeal of an injunction lifting the nearly three-month lockout.
Kermit Bye, the presiding judge in the hearing -- and the lone dissenter in the appeals court's previous decisions to stay U.S. District Judge Susan Nelson Nelson's April 25 ruling -- said after the 90-minute hearing that the judges would rule "in due course."
Bye added that the panel "wouldn't be all that hurt if you go out and settle that case" and warned the decision will be one that neither party likes. That decision likely will come in 2 to 6 weeks.
Paul Clement, a former U.S. solicitor general representing the league, opened oral arguments by attacking the validity of the NFL Players Association's March 11 decertification. He maintained that, because of the non-statutory labor exemption, the league should have the right to lock out its players for at least one year. He also said the fact that this is the second time the NFLPA has decertified "ought to be a problem for them."
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If the union's decertification is ruled invalid, the Brady et al antitrust lawsuit against the NFL would disintegrate and cost the players almost all leverage they have in the labor fight.
Players counsel Ted Olson, Clement's predecessor as U.S. solicitor general, defended the union's decertification by emphasizing it only recertified in 1993 at the league's request.
Judges Steven Colloton and William Duane Benton repeatedly referenced the Norris-LaGuardia Act, which bars injunctions in cases arising from a labor dispute, in asking Olson why the law wouldn't make Nelson's judgment wrong.
Olson responded: "The union is not in existence anymore. The players cannot engage in collective bargaining because it's against the law." Olson also defended the validity of the Brady suit by saying the league had been found in violation of antitrust law "15 times."
Friday's hearing followed three days of clandestine talks in suburban Chicago between the league and players, who met with NFL Commissioner Roger Goodell and NFLPA executive director DeMaurice Smith in attendance, but without lawyers.
Clement was asked if those negotiations could hurt the validity of the union's decertification.
"I think what that underscores is that the union has not disappeared forever," Clement said. "Obviously, everyone can make their own judgment, but the problem with the argument on the other side is it assumes that the union is gone forever. I don't think many people who are a student of this game or a student of this industry really believe that's a fact."
Olson contended that the players' actions only were prompted by those of the owners, going back to their 2008 decision to opt out of the collective bargaining agreement that expired in March.
"We don't have much to say, other than to remind everybody that the National Football League cancelled the collective bargaining agreement that they negotiated and entered into," Olson said. "They prematurely and unilaterally cancelled the collective bargaining agreement. And then they unilaterally called a lockout, stopping football in its tracks. The players didn't do that. The National Football League did that."
Goodell was in Fort Bragg, N.C., visiting troops during the hearing, and a league spokesman tweeted that the commissioner isn't a lawyer and "wouldn't have added much to the legal proceedings." NFL general counsel Jeff Pash also didn't attend.
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Conversely, the contingent of active and retired players was over 20 deep. The active players included Jon Beason, Jordan Black, Matt Bryant, Tyson Clabo, Craig Dahl, Adam Goldberg, Cullen Jenkins, Brandon Moore, Jon McGraw, Rudy Niswanger, Chester Pitts, Tony Richardson, Brian Robison, Orlando Scandrick, Jake Scott, (Carolina's) Steve Smith, Andy Studebaker, Osi Umenyiora and Brian Waters.
"I think it was a great turnout because it shows where our jobs are right now, not caused by the players, but caused by the owners," said Smith, the Panthers' wide receiver. "It was important to them, important to myself, important to other players who couldn't be here that have a responsibility as a player rep.
"Maybe a guy couldn't come because his wife just had a baby, or his wife was sick, and we'll relay the message and the information that we observed. That's our responsibility and our job as reps, and also our job as teammates to inform and give each other's input on what's going on."
Spokesmen for both parties declined to comment on the negotiations earlier in the week, citing a court-ordered confidentiality agreement, and a federal magistrate canceled scheduled mediation sessions for next week in Minneapolis because of the "confidential settlement negotiations."
But George Atallah of the NFLPA was adamant that the ongoing legal battle shouldn't stop the parties from attempting to find a long-term solution, which was the aim of the Chicago summit.
"Anybody that believed with litigation or a settlement, that there was a choice between the two, those people are wrong," Atallah said. "We're here today to try and lift the lockout so players can play football. At the same time, that doesn't mean the settlement negotiations couldn't continue. You saw that over the past couple days."
The NFL, in defending its right to lock out the players, maintained that any deal has to happen through face-to-face negotiation, not litigation.
"What we tried to make clear in there is that we think the lockout is actually the best way to get players back on the field," Clement said. "And you might say, 'Why do you think that?' We think that because that's what all the labor laws say, the way you get labor peace is you allow the sides to use the tools that labor laws give them. That means employees get the right to strike and, in certain situation, employers get to lock people out.
"There are other tools available to both sides. The idea is using those tools will accomplish labor peace."
At the very least, the league and players wanted to show the seriousness of their respective approaches Friday.
"Really, our only purpose here today was to show it's important to us, and to represent our players and to show both the court and the public that it's important to us," said Goldberg, the St. Louis Rams' offensive tackle. "We want to get back to work. We want to play. We want to get back to work doing what it is we're trained to do, to put out a great product for you guys on Sundays."
Now the parties wait for the appeals court's ruling, with not much time to lose. Indianapolis Colts owner Jim Irsay said last week that he believed some decisions on opening training camps in late July needed to be made by July 4.
"We can't just go from where we are now and jump into games," free-agent offensive tackle Damien Woody, who last played for the New York Jets, told The Associated Press. "There has to at least be an abbreviated training camp to get us somewhat prepared for the season. If not, there are going to be a lot of injuries. ... Training camp usually starts in late July, and time is running out because it's already June. I think we have to get a deal done by late July at the latest."
Free-agent linebacker Ben Leber, one of 10 plaintiffs in the antitrust suit against the league, said the players haven't discussed a specific drop-dead date for reaching an agreement.
"Both sides have a day, whether they want to make it public or not," said Leber, who played for the Minnesota Vikings last season. "The biggest challenge is going to lie with whose day is going to come up first."
The Associated Press contributed to this report.
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