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8th Circuit hears NFL arguments

Players ‘enjoying’ summer, team owners’ lawyer says

Two legal powerhouses squared off against each other Friday before a federal appeals court in St. Louis over whether the dispute between National Football League team owners and players is a labor issue or an antitrust issue.

Paul Clement, third from left in the front row, is the lawyer representing the National Football League and team owners before the 8th U.S. Circuit Court of Appeals. He leads a group of lawyers and others Friday toward the Thomas F. Eagleton U.S. Courthouse in downtown St. Louis. Photo by Karen Elshout

Paul Clement, arguing on behalf of team owners, told the three-judge panel of the 8th U.S. Circuit Court of Appeals it is a labor dispute, which should be decided by the National Labor Relations Board.

He asked the judges to overturn the April 25 decision of U.S. District Judge Susan Richard Nelson to issue an injunction barring team owners from locking out the players.

The best way to get players and coaches back on the field, Clement said, “is that you get extraneous considerations, like antitrust actions and antitrust injunctions, out of the process, and you let both sides use their labor law tools to resolve the dispute.”

Lawyer Theodore Olson, right, heads into the Thomas F. Eagleton U.S. Courthouse on Friday. Olson represents the NFL players. Photo by Karen Elshout

Theodore Olson, however, argued for the players that the federal law in question says labor disputes, by definition, involve unions. The players union ceased to exist by a vote of its members after it and the team owners reached an impasse in negotiations, so the players are entitled to the protection of antitrust laws, he said.

A provision of the 80-year-old Norris-LaGuardia Act, the federal law in question in the case, “was not intended to protect employers, it was not intended to preclude injunctions in cases against employers, and it was intended to protect the right to strike,” Olson said.

Clement and Olson each held the office of solicitor general under President George W. Bush.

The 8th Circuit’s en banc courtroom, on the 28th floor of the Thomas F. Eagleton U.S. Courthouse, was packed with observers for the hour and 10 minutes of arguments, including: DeMaurice Smith, head of the players association; Osi Umenyiora, of the New York Giants; Brian Robison, of the Minnesota Vikings; and the St. Louis Rams’ own Adam Goldberg.

The court had reserved about 75 seats for the parties, 40 for members of the media, 15 for court personnel and their guests and 40 for members of the public.

Judge Steven M. Colloton peppered the lawyers with questions, and to a lesser extent so did Judge Duane Benton.

The third judge on the panel, Judge Kermit E. Bye, remained quiet until the end of Clement’s rebuttal, when Bye asked if the lawyer would concede the players are suffering “irreparable harm” by the owners’ lockout.

Clement would not.

In fact, Clement said, “we also have reports that come in on a daily basis where players are saying: ‘This is the best thing that ever happened to me. I’m enjoying my summer; I get to spend time with my family.’”

At that, laughter rippled throughout the courtroom.

The case is Brady et al. v. National Football League et al., 11-1898.