NFL’s Jeff Pash: “It depends on the scope of the injunction”

NFL Executive Vice President Jeff Pash spoke with media today about the NFL’s legal position following yesterday’s ruling by U.S. District Judge Susan Richard Nelson.

“We remain confident in our legal position,” Pash said. “We are taking steps, and already have taken steps, to put the process of review by an appeals court into place.  Last night we filed a notice of appeal.  As a first step, that appeal has already been docketed with the court of appeals for the Eighth Circuit.  The clerk’s office will, I’m sure, be in touch with the parties to set up a briefing schedule.  We will certainly suggest that the review be expedited so that we can get the guidance from the appeals court at the earliest possible time.  We also filed a motion last night with Judge Nelson asking that she stay the injunction that she entered pending review by the appeals court.  She directed earlier today that the players respond to that tomorrow morning.  Once that response is in, we expect that she’ll consider the briefs before her and give a ruling.  Then we will address whatever that ruling is either directly or with the court of appeals.”

Following is a transcript from Pash’s media briefing:

 

NFL EXECUTIVE VICE PRESIDENT JEFF PASH

MEDIA CONFERENCE CALL

Tuesday, April 26, 2011

 

Good afternoon, everyone.  I’m just going to speak very briefly and then respond to your questions.  Obviously, yesterday’s decision was not what we were looking for.  We reviewed it.  We remain confident in our legal position.  We are taking steps, and already have taken steps, to put the process of review by an appeals court into place.  Last night we filed a notice of appeal.  As a first step, that appeal has already been docketed with the court of appeals for the Eighth Circuit.  The clerk’s office will, I’m sure, be in touch with the parties to set up a briefing schedule.  We will certainly suggest that the review be expedited so that we can get the guidance from the appeals court at the earliest possible time.  We also filed a motion last night with Judge Nelson asking that she stay the injunction that she entered pending review by the appeals court.  She directed earlier today that the players respond to that tomorrow morning.  Once that response is in, we expect that she’ll consider the briefs before her and give a ruling.  Then we will address whatever that ruling is either directly or with the court of appeals.  I’ll stop there and take your questions.

On what kind of guidance the NFL would be looking for from the courts:

There are a couple of things going on in that respect.  One is obviously the stay motion and establishing a schedule from which the stays will be considered and the briefing in the appeals court.  The second is a request that the players filed last night with Judge Nelson asking – it’s called a motion for reconsideration – basically asking that she enter a new and different form of injunction, which would give a much broader form of injunction than was entered by the judge yesterday.  So that’s obviously something that needs to be addressed as well.  I think both sides need to have clarity as to what the court’s order is, whether a stay is in effect and the like.  That’s really what I had in mind when I talked about seeking that kind of guidance.

On what type of rules would be put in place if free agency is ordered to begin by the court:

I think again that depends on what the scope of the injunction is and whether there is a stay.  If the players got the injunction they requested last night, that would suggest a different set of rules.  If that request is denied or the underlying injunction is stayed pending appeal, then that would dictate a different response.  There’s a considerable degree of uncertainty about what exactly the scope of the relief is in light of the filing by the players last night.  I think we don’t agree on all that many things, but I think Jim Quinn said it well last night when he said, ‘What we need to do is let the dust settle for a day or two,’ I think those were his words, and see if a stay is put in place.  Then we’ll all know more and be able to go from there.

On if the league year has started, and if not, why some clubs have let players in and others reportedly have not:

I am not aware of any club that did not let any players in.  I believe there are some clubs where players did not try to come, where no one was there today.  But I do not know of any club where a player came and was not permitted in.

We have not asked Judge Nelson to determine when the new league year will begin.  That is something we will have to decide once we have an understanding of the scope of the order and the status of any motions for stay pending appeal.

On free agency and if any conversation with players occurred on the subject:

We did have some dialogue with representatives of players today, although it was through the attorneys and not directly through our office.  The question of what the rules are – it depends in part on a stay and in part, as I have said, on the scope of the order and the specifics of the order that Judge Nelson ultimately enters in response to the player’s request of last night.

On the start of free agency absent a stay:

I do not know the answer to that.  Jim Quinn’s point last night was a good one — that you have got to take a day or so, as he put it, to let the dust settle, see if there is a stay in place, and then figure out where you go from there.  Obviously, if a stay is granted, that tells you one thing; if it is not granted, then we will be prepared to respond to that.  But the fundamental point is that we are going to comply with whatever the court orders are.

On what the basis is of NFL’s confidence in its legal position given history of failure in court:

On these issues in particular, the history of appeals court rulings has been quite different from how trial courts look at this, for example, going all the way back to the Mackey case.  There were certain rulings made in the trial court, many of which were very substantially carved back by the Eighth Circuit in the court of appeals.  In the Marvin Powell case, there was an initial ruling on the scope of the labor exemption which was overturned by the court of appeals.  In the Brown case in the District of Columbia, there were initial rulings made by the district court that were overturned by the court of appeals on the scope of the labor exemption, and then the Supreme Court upheld that ruling.  In the Maurice Clarett case, there were initial rulings on the applicability of the labor exemption and issues like that by the trial court here in Manhattan, and then overturned by the second circuit.  So we think we may have a somewhat better track record on these issues than it appears certainly in the court of appeals.  We believe we have very credible legal arguments to assert, and we will know in a relatively short amount of time whether we are right about that or not.

On what the time frame of the appeal is:

The briefing, as I mentioned, the clerk’s office in the ordinary courts would get in touch with the parties to set a briefing schedule.  So I think it would depend on when they have a panel scheduled to hear arguments over the course of the next four to six weeks or so.  Then you work backwards from an argument date.  It could also be that the court would set up a separate schedule and just have a panel put in place to hear it.  That is really a function that the court’s office would handle.  The only thing I could say is that we will be prepared to have the issues addressed as quickly as the court can hear them.  But I honestly do not know a timetable.  The court can act relatively quickly, and we will be prepared to cooperate with any level of expedition that they think is appropriate.

On if judge’s ruling shuts down the NFL’s arguments on Norris-LaGuardia:

It’s definitely a lengthy, detailed opinion.  It’s obvious that the judge put a lot of time and effort and thought in to it.  I would simply say that we believe, as we did in the context of some of these other cases that I mentioned earlier, we believe that our legal position is meritorious. We believe it we be upheld on appeal.  We’re going to put those arguments to the appeals court.  We’ll do it in a way that addresses the point made in the district court’s opinion.  I think that is what you have to do on appeal as opposed to simply saying the same thing over again.  We believe that we have a strong and meritorious legal position.  I recall when we were asked some pretty tough questions when we got the district court’s opinion in the Maurice Clarett case, which was a long, detailed, thorough opinion.  I said at the time, and I think you and others might have been skeptical, that I felt pretty good about our prospects on appealing.  I’m not trying to ignore what the decision said yesterday but we understood what the issues were.  We assessed them pretty carefully and we think the fundamental point is that this dispute is a labor dispute.  It grows out of a collective bargaining relationship and so we believe that the Norris-LaGuardia Act should apply and we believe that the non-statutory labor exemption operates here.  We’ll know soon enough, I think, how the appellate court views those.

On the Brown case and if the issue was paying them for the last week of the strike:

That was different.  The Brown case involved an agreement among the clubs to pay uniform wage towards the developmental squad players.  The union challenged it as a price fixing agreement or players challenged it as a price fixing agreement, and as I say, the trial court ruled against us.  When up on appeal, that ruling was overturned on grounds of the labor exemption.  That was ultimately upheld by the Supreme Court.  The labor exemption means that when something arises out of or grows out of a collective bargaining relationship, that it is not subject to anti-trust attack.

On if the judge denies the stay, will the NFL start the new league year at that point:

You have to look at where you stand at the time.  Our fundamental point is to comply with court orders.  You would have to have an understanding of what the scope of the injunction is, what you are required to do, what you’re forbidden from doing, and what you are permitted to do where you have discretion.  We would also obviously asses the question of seeking a stay in the Eighth Circuit.  I think that would certainly be a likely step that we would take.

On how long it would take after a ruling to actually put rules in place:

I think we would be prepared to move promptly and ensure that all the clubs have the necessary information and make sure that we acted in a way that was orderly and businesslike and consistent with the court orders.

On how quickly the stay from the Eighth Circuit can come:

I honestly don’t know how quickly it would come. I would think because same motions are generally treated as urgent matters, there would be a ruling in a relatively short period of time.

On the possibility of a 48-hour or a 72-hour league year and the stay being granted days later:

I certainly do understand. The point you’re making, I think, is a very powerful reason for getting a stay because what it suggests– whether its 48 hours, or 72 hours, or three weeks, whatever, — that you can well find yourself in a situation where a team and players have made decisions and taken actions that are very difficult to undo. It is preferable for everyone to have some greater degree of clarity and certainly and to proceed on that basis. That is certainly what we are looking for right now and what we will continue to look for. Obviously we have a legal position that we believe in and that we want to continue to advance. What we would like to avoid, I think for everyone’s benefit, is a situation where you are trying as they say to unscramble an egg. I think that really goes to the comment that Jim Quinn made last night– you need to take a day or two, whatever it was that he said—to let the dust settle and see about a stay and things like that.

On whether damage done by a shortened league year would be greater than the damage incurred by the players by being locked out:

You are talking about a relatively brief period of time. We are talking about an expedited appeal. We are talking about getting relatively prompt rulings, I believe. There is an interest on everyone’s part in having some degree of clarity as to what your prerogatives are before you go and make decisions; either party makes decisions that could be very difficult or impossible to undo.

On the possibility of Judge Nelson stating there is no need for further guidance on her ruling:

I think you always have to be mindful of those issues and that’s why I say our fundamental point is we are going to comply with court orders. It is also true that the law does provide for stays of injunction. It provides for immediate appeal of preliminary injunctions—which is most unusual—relatively few orders that are immediately appealable as of right, as you know. I think that is a recognition that preliminary injunctions are often granted on a basis where prompt appellate review serves everybody’s interest, including the public’s interest. I think we are proceeding in a way that is responsible, that is consistent with the law — that is certainly consistent with the concept that I think Jim Quinn mentioned last night — and so I believe we are being respectful and appropriate in how we are handling this matter at the moment.

On if the NFL has decided to seek a bond from the players in the event the injunction is overturned:

No, not at this point. 

On the NFL’s right to seek a bond from the players and the significance of the bond:

I really can’t get into a lot more detail at this point.  We were trying to identify a possible issue, which we hope never to have to address because obviously we are looking to have a stay and take the matter up on appeal, which would make that unnecessary. 

On the standards necessary for the appeals court to determine ‘abuse of discretion’ in order to overturn a district court judge’s ruling:

It depends really on what the district court findings are.  I think we are recently comfortable that on some of these core issues, such as the applicability of the Norris-LaGuardia Act and the application of the non-statutory labor exemptions.  Those really are pure questions of law.  On those points, appeals courts tend not to give a lot of deference to the district court’s decision.  They are entitled to review on what is called a ‘de novo’ basis, which means you start over.  They have the district court’s decision, obviously, as a reference point, but it is not like some actions of a district court where the appeals court is obligated to defer or assume that it was decided correctly, which would be the case on an abuse of discretion type standard.

On if the abuse of discretion standard is relevant to the NFL’s appeal:

There may be some issues that would be reviewed under the abuse of discretion standard.  On the core legal issues, which will certainly be the ones that we would focus on, those would tend, I think, to be issues that would be subject to this less deferential standard, a de novo review. 

On issues that would be reviewed under an abuse of discretion standard:

The extent of irreparable injury is one.  Findings on that, I think, would be addressed under that standard. 

On if free agency could potentially open prior to the 2011 NFL Draft:

I just don’t know.  It is hard to speculate on what the timing would be.  I probably just shouldn’t try to speculate.  I can only say that we are going to press the issues as expeditiously as we can, as evidenced by the fact we filed our stay paper last night.

On if trades are allowed during the 2011 NFL Draft:

You can trade draft picks. 

On if not having operating rules in place prior to the 2011 NFL Draft could make the league susceptible to further damages:

It depends really on where you are in terms of the scope of the injunction and things like that.  Given the request that was made last night, there is a good deal of uncertainty as to what exactly the final order will be and how the rules will apply.  We need to know where we stand on that and where we stand on the stay.  Then we can go forward, but there is not going to be a significant degree of uncertainty in terms of how we respond once we know how the pending motions are addressed.  We will make sure we are in compliance with whatever the orders are.

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