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Q&A: Where does the labor situation sit after Friday's hearing?

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  • By NFL.com
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NFL Network legal analyst Gabe Feldman was at the U.S. 8th Circuit Court of Appeals in St. Louis for Friday's hearing in which lawyers representing the league asked a three-judge panel to consider its appeal of an injunction lifting the lockout. Lawyers for the players asked the court to honor the injunction.

Here are Feldman's thoughts on what transpired:

What did we learn from each party today?
GF: Both stuck with the party lines. They stuck with the themes they've been using since negotiations broke down in March.

From the owners' prospective, this is a labor dispute that should be resolved through the collective bargaining process. They believe that antitrust law would interfere with that.

And the players believe that they have a right, as all employees do, to choose between being in a union or not being in a union, and a choice between labor law and antitrust law, and that by dissolving their union in March, they have clearly chosen antitrust law. To them, the lockout that the owners have implemented is a clear violation of antitrust law and should be enjoined.

So when can we expect a decision, and did the judges hint at what that decision might be?
GF: That's the billion-dollar question.

In terms of timing, at the very end of the hearing, Judge Kermit Bye said the ruling would come in "due course" and urged the parties to reach a settlement before the ruling came. "Due course" doesn't give us any indication. At this point, that could be anywhere from 2 to 6 weeks.

Whether or not the judges tipped their hand as to what the ruling may be, it's difficult to speculate. We know the judges ruled on the stay and that two judges had serious doubts about the ability of a federal court to enjoin a lockout. There was nothing in (Friday's) hearing to suggest that those two judges had seriously moved from that position.

Based on what we saw (Friday), it does seem that two judges still believe the Norris-LaGuardia Act prevents federal courts from enjoining a lockout. They both seem uncomfortable with the concept that the lockout could last forever and can never be enjoined, but they also seem uncomfortable with granting an injunction, at this point, to prevent the owners from locking the players out.

How important is the timing of the decision?
GF: It's more important, in some ways, than the substance of the decision for the fans. If it's closer to 2 weeks, then we're in better shape because we're still in June. And if negotiations don't pick up until the end of June, there's still time to salvage the entire regular season. But if the sides wait for the decision, and it doesn't come until the middle of July, then that clock is ticking if the parties don't start negotiating until then. Then we run the risk of missing some regular-season games or rescheduling some of those games.

No matter whose side you're on, you're rooting for a quick decision from the judges.

Does it feel like one side has the upper hand right now, or is this truly still at a standstill?
GF: I think it's still at a standstill because, even if the lockout stays in place, the other key question that remains is whether the players can continue with their antitrust suit. The scenario we would be left with potentially is that the federal court can't enjoin a lockout, but the players could still sue under antitrust for triple damages, claiming that the lockout violates the Sherman Act. And that situation would leave both sides with leverage.

On the one hand, the owners would be able to lock the players out and not pay them. On the other hand, the players would be able to sue and claim the lockout entitles them to three times the damages. That may not be the result. The court may say the players' antitrust suit should not go forward. Of course, the court could surprise us and say the lockout has to be lifted. We still don't know anything for certain.

What is the possibility of a deal being done before this decision comes down?
GF: I think it's more likely that real movement occurs after the decision. Both parties believe that they can get a better deal through litigation and win litigation. I think we may see some behind-the-scenes negotiations. I think there's still a chance we get movement before a decision, but it's much more likely that the significant movement once the court has ruled and both sides get an understanding of what their true leverage is.

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