Writers of Pro Football Prospectus 2008

16 May 2011

8th Circuit Grants NFL Motion For Stay of Lockout

By a vote of 2-1, the 8th U.S. Circuit Court of Appeals has granted the National Football League's request for a stay during their appeal of U.S. District Judge Susan Nelson's April 25 ruling that the lockout be lifted.

"In sum, we have serious doubts that the district court had jurisdiction to enjoin the league's lockout, and accordingly conclude that the league has made a strong showing that it is likely to succeed on the merits," Judges Steve Colloton and Duane Benton wrote in the majority opinion.

As with the temporary stay that was granted on April 29, Judge Kermit Bye dissented.

Previously, the 8th Circuit granted an expedited appeal, scheduling a hearing for June 3 in St. Louis.

The NFL and NFLPA resumed court-ordered mediation in U.S. Magistrate Judge Arthur Boylan's chambers in Minneapolis on Monday. It was the first talks the two sides have engaged in since April 20.

"The NFL's request for a stay of the lockout that was granted today means no football. The players are in mediation and are working to try to save the 2011 season. The court will hear the full appeal on June 3," the NFLPA announced in a statement on Monday night.

The league also issued a statement.

"It is now time to devote all of our energy to reaching a comprehensive agreement that will improve the game for the benefit of current and retired players, teams, and, most importantly, the fans. This litigation has taken the parties away from the negotiating table where these issues should be resolved. We remain confident that the appellate court will determine that this is a labor dispute that should be governed by federal labor law. But the league and players, without further delay, should control their own destiny and decide the future of the NFL together through negotiation."

Posted by: Brian McIntyre on 16 May 2011

97 comments, Last at 26 May 2011, 2:15pm by morganja


by Theo :: Mon, 05/16/2011 - 8:53pm

Meaning the players and owners are talking and June 3rd we will hear more?

by MilkmanDanimal :: Mon, 05/16/2011 - 9:33pm

Sounds to me that it's still meaning the players are saying they're not really negotiating until they hear the final word from the courts.

by tuluse :: Mon, 05/16/2011 - 9:46pm

Sounds to me like both sides are saying that.

by JasonK :: Mon, 05/16/2011 - 9:51pm

We won't hear more on June 3rd. That's just when the oral argument will happen on the merits of the appeal on the injunction. I don't know how long 8th Circuit panels generally take to make a ruling after hearing a case. Given that it has taken them 3 weeks just to rule on the interim stay, I wouldn't hold out much hope of a decision before July, at the earliest.

Of course, settlement negotiations could produce an agreement any day. But I really doubt that either side has much incentive to agree to concessions when there's still a chance that a Circuit Court ruling in their favor could shift the negotiating leverage considerably.

by ChicagoRaider :: Tue, 05/17/2011 - 1:46pm

I would not necessarily be so pessimistic. First, on deciding the stay motion, they were fresh to the case. Now they know more about it. Second, I expect the judges will have evaluated the briefs thoroughly at oral argument. Oral argument rarely changes a judge's mind because the best arguments were made in the briefs. Oral argument is not a time to make a new argument, but rather to answer a judge's questions about the argument you made.

Also, there is a rare occurrence, where the judges give the result and say that the explanation will follow. I do not see that happening here because that would only happen if the panel was 3-0. Given that the stay order was 2-1, I don't like the chances of 3-0 for either side.

by morganja :: Mon, 05/16/2011 - 9:56pm

Pathetic. These idiotic hacks on the court are going to tie labor law into a total mess with this moronic decision. Unless the Supreme Court weighs in and smacks these hacks down, it is going to open up a complete mess for businesses across the country.
It's nice to own some judges. Too bad for everyone else and too bad for the NFL. The owners are stupid enough to totally screw themselves and they are going to do it.

by not a lawyer (not verified) :: Mon, 05/16/2011 - 10:24pm

Do you trust Kennedy to do the right thing? I don't.

by Alternator :: Tue, 05/17/2011 - 1:19am

The initial decision said that, by dissolving a union, labor law no longer applies because it no longer counts as a labor dispute. That's absurd on the face of it. Labor law was designed to force owners and workers to settle their differences themselves, regardless how long that took, and to keep it out of the courts.

Labor law is specifically written with the intention of keeping it out of the courts. The initial decision was mind-boggling in its expansion of court authority, and the Court of Appeals is completely correct in striking it down.

by Scott P. (not verified) :: Tue, 05/17/2011 - 9:25am

The problem with that reasoning is that there are a number of crystal clear precedents that run counter to it.

by drobviousso :: Tue, 05/17/2011 - 10:09am

It's like I'm back at Volokh!

by Alternator :: Tue, 05/17/2011 - 12:19pm

Can you name a single instance where a union decertified for the exclusive purpose of pursuing antitrust claims, and then either won or received a favorable settlement? Because that's ultimately what the union is doing, and that's what most of the people who seem pro-owners are objecting to.

The union leadership is in control of the NFLPA, they're organizing everything still, and there's really no reason I can see to not believe the decertification is a sham.

by tuluse :: Tue, 05/17/2011 - 7:17pm

What about the first time the NFLPA did the same thing?

by GlennW :: Tue, 05/17/2011 - 1:25pm

Simple legal question: Would it be completely contradictory if this court has refused to end a lockout (undertaken as a response to NFLPA decertification soon after CBA expiration) while at the same time believing that in the absence of a new CBA the players' antitrust claims eventually will win out?

I'm not sure that the court can't and hasn't treated these two matters as separate issues, at least in the present brief timeframe. Logically (if not legally), I can see the point that decertification is a "sham" in its expediency towards litigation (I also recall reading that the last CBA didn't permit decertification until 6 months after expiration), while also agreeing that absent an eventual CBA free agency restrictions, salary cap, revenue-sharing etc. will all be ruled illegal with antitrust damages awarded. But isn't it possible that the court is just saying, hey, you've played under a CBA for years, why should we intervene at this time in favor of one side or the other, when meaningful negotiations should instead be taking place?

by mawbrew :: Tue, 05/17/2011 - 3:25pm

I think the players were allowed to decerify their union at any time. I think what you are remembering is the clause in the CBA (or was it the antitrust settlement) that said the owners could not claim the decertification was a sham if the players waited 6 months after the CBA expired before they decertified. The players didn't wait.

by GlennW :: Tue, 05/17/2011 - 4:11pm

Okay, I found a reference to this. The prior CBA stipulated that the NFLPA could not decertify for 6 months once the CBA had expired. To get around this, the NFLPA instead decertified one minute before the CBA was set to expire (after the couple brief negotiating extensions). It does seem as if it was the intent of the original CBA to require a 6-month negotiating period before antitrust litigation could be pursued. I don't know if the court considered this stipulation, or perhaps even addressed it specifically.

In any case the timing of the decertification was secondary to my main point. Morganja referred to the justices as "hacks" and "morons" and the like, apparently because he felt they were too clueless to realize that the players would obviously win out in the eventual antitrust suit. My contention is that the judges might totally agree with this opinion, but nonetheless are not compelled to uphold an injunction only for that reason. The latter action supposedly requires evidence of "irreversible damage" or the like.

by db :: Mon, 05/16/2011 - 10:39pm

Except for Doty's ruling this is it. The owners have won the right to extend the lockout and the players can hold their breath until they turn blue and it doesn't matter. If you wanted football this year this is a good thing. If you wanted the players to win, you lose.

by Dean :: Tue, 05/17/2011 - 9:31am


This ruling means that both sides have to negociate from equal footing. If the players can de-certify and the owners weren't allowed to lock them out, it would be absolutely absurd.

I'm still not convinced there will be football this year, but I'd love to be wrong. I just see both sides so entrenched that it's not going to change until one side breaks. The owners are at least making offers. The players walked out rather than make a counteroffer last time and with D. Smith seemingly more interested in cranking up the rhetoric than getting a deal done, we're still a long way off. I don't see the players even bothering to make a counteroffer this time either, but again I'd like to be wrong. If they're at least talking then that's better than not talking.

It'll take time, but the best case scenario isn't one side winning and the other side losing. If one side caves and gets a bad deal (like what happened to the players in '82 and the owners in '06), we'll just find ourselves dealing with this mess all over again in a few years. The best case is that both sides agree to a deal that they're not happy with but can live with. If that happens, there's a chance that it'll be a lasting deal like we got in '92. THAT is what we should all really be hoping for.

by morganja :: Tue, 05/17/2011 - 2:23am

What are you talking about? There will be no football this year. The only way there was going to be football is if the court ended the lockout. Unless this goes before the Supreme Court, in which case there will be a royal smackdown.
Expansion of court's authority? Where do you people get these moronic ideas? The court is absolutely wrong.
In any case, this is what's going to happen. Unless a union is formed before the Brady case, the owners have now screwed themselves. There will be no question who will win that case. There will be no draft, salary caps, restricted free agency, anything that is in restraint of free trade. We will have a baseball situation in which there are 6 teams that outspend everyone else and at least three quarters of the league won't even be trying to win. Games will be boring. Season will be boring. Fans won't watch.
So congratulations to all of you rooting against the free market. Enjoy your little victory.

by rfh1001 :: Tue, 05/17/2011 - 3:46am

Er, I'm all for the current system, but if you're rooting for it, then surely you're also rooting against a free market? The NFL is an endearing, enclosed socialistic command economy which manipulatively redistributes wealth in the name of equality.

Baseball is closer to a free market, and European football is closer than that. They're all different. The NFL is great, and works, and I don't want it to change, and a lot of the people involved in this debate are idiots, but don't go attaching political shibboleths.

by Stats are for losers (not verified) :: Tue, 05/17/2011 - 7:35am

Then let's solve this the American Way--more lawsuits.

A PSL holder in Cleveland is already suing--no reason the rest of 'em can't. There are at least 10 teams with PSLs, so that'll be 10 little class-action lawsuits, or One Big One.

How about a class-action lawsuit by the people who financed the stadiums that shall remain empty this season, providing none of the economic benefit that the citizens are paying for?

The NY state AG even has three teams he can subpoena documents from, for his inevitable investigation! So what if two of the teams are in NJ... let 'em come into court and argue that they're *not* NY teams.

If there's enough ridiculous legal action, it can keep me entertained for 16 weeks.

by Bnonymous (not verified) :: Tue, 05/17/2011 - 2:31pm

So lets see if we have this straight? You support the free market when it helps the players (and make sure to call everyone else fascists) and you ignore the principals of the free market when they benefit the owners (and twist the words fo those who disagree into some sort of warped, all-encompassing statement of their supposed worldview). Do I have this right? You really should make a zlionsfan template of all this so that we can more easily follow your rhetoric.

by Bnonymous (not verified) :: Tue, 05/17/2011 - 2:32pm

Sorry. This was directed at Morganja not you. Posted in the wrong place.

by Anonymouse 2 (not verified) :: Tue, 05/17/2011 - 12:52pm

Wow. I'm surprised you don't think DeMaurice Smith's only intent on decertification was so he could receive 1/3 of all the damages awarded by the Courts to the players. As legal counsel in a class action lawsuit over labor law/anti-trust he is entitled to a large sum.

So if the players are asking for 707 million from the League's "Lockout Fund" from the networks, he's entitled to about 353.5 million plus whatever damages come from the antitrust case.

Makes perfect sense why the NFLPA decided to reject the owners' last offer, decertify, and refuse to negotiate.

by mawbrew :: Tue, 05/17/2011 - 3:04pm

In the recent American Needle case the SC recognized that certain collective decisions (rules) to help maintain competitive balance are legitimate and important. I don't think a loss on the anti-trust case (assuming the NFL would create reasonable rules) is certain.

That said, I don't really think the NFL will end the lockout until there is a negotiated deal. And with a negotiated deal there is no anti-trust case. In fact, as long as the players are locked out (and no new rules established) I'm not sure how the players challenge anything like the draft, free agency, salary cap.

The last anti-trust case against the NFL took years to resolve. If the lockout isn't lifted I can't see the players waiting it out.

by Dave Bernreuther :: Tue, 05/17/2011 - 4:29pm

I'd love to know what authority you have to declare that federal court judges are completely wrong and morons. Do you sit on the supreme court?

Unless you're a lawyer, keep your mouth shut. You don't know what you're talking about.

by morganja :: Tue, 05/17/2011 - 6:34pm

Which two are you talking about? Oh, the two that support your position, not the two that supported the law. Obviously two are correct and two are completely wrong. They can't all be correct.
What authority? I need authority to have an opinion? Here's one. It's called the First Amendment. Check it out. It gives all sorts of people the authority to have opinions. How about in America on a blog about football that is discussing this issue I go ahead and have an opinion? Is that ok?
I do know what I am talking about. Obviously you don't. I'm a free market libertarian and I despise decisions made by useless political hacks, exactly what happened here, that defy the law and free market principles.

by rfh1001 :: Tue, 05/17/2011 - 6:42pm

For real? You are, for real, a free market libertarian who thinks that is compatible with centralised, unionised, labor-and-competition-restricting American football as it currently exists? How does that work?

by morganja :: Tue, 05/17/2011 - 9:35pm

Is that a sentence? What were you trying to say?

by wyatt (not verified) :: Tue, 05/17/2011 - 10:18pm

I believe that he is asking 'how can you claim to be a 'free market libertarian' and be against the ruling of the courts, as the ruling handed down by the Appellate Court is completely within the framework of Libertarianism? The Court said that businesses can do what they want to their workers (very loose paraphrasing), how much more libertarian do you want??

Also, FYI, the 1st Amendment does not guarantee anyone the freedom to an opinion without repercussion. All that it guarantees is that the government cannot punish you for what you have to say. There is a big difference between the two.

by Bnonymous (not verified) :: Wed, 05/18/2011 - 9:30am

And this is the reason for my post above calling him out.

Morganja is simply a troll trying to bait people. He/she claims to support the free market, but really just has a hatred of wealth. When someone’s broke, they’re noble, but once they achieve financial success, they instantly transform into evil personified. He’s not about the free market; rather he’s all about class warfare.

He’ll use a bunch of inflammatory rhetoric, then when someone takes the bait, he’ll twist their words into some sort of warped, all-encompassing statement of their worldview (i.e. – in his/her mind you can’t support a competitive balance in the NFL and still support free market economics). Then you’ll get insulted for good measure. Then a conclusion with 1 of 3 options. Your original point will either be ignored, be belittled, or there will be feigned confusion in hopes of baiting a further response.

by wyatt (not verified) :: Wed, 05/18/2011 - 10:35am

I was unaware of his 'status' thanks for the heads-up for future reference.

by Karl Cuba :: Wed, 05/18/2011 - 12:39pm

I don't think that Morganja is a troll, he's been posting here for a long time and that's never been said of him before. FO seem to have allowed an abnormal amount of leeway with their no politics rule on these lockout threads and frankly it serves to justify their standard policy. Sure he's used some hyperbole and some strong rhetoric but pretty much everyone has done that at one time or another (I know I have), can't we all try to raise the level of discourse and not lower it further with ad hominem attacks?

by Gray Jay (not verified) :: Wed, 05/18/2011 - 6:42pm

Completely agree, Karl. As a mostly longtime lurker, I can't agree with characterizing Morganja as a troll.

I'd almost rather Aaron, et al, locked these threads, as they are making the Manning/Brady wars or the "Running up the score" threads look tame.

by morganja :: Wed, 05/18/2011 - 5:05pm

The problem is that you seem to think pro-business is pro-free market. It's not. Milton Friedman, amongst many others, pointed out that businesses will almost always attempt to pass legislation or get regulations that are 'pro-business', meaning pro-existing business with the political connections. They will attempt to limit or eliminate competition, capture subsidies, direct or indirect, in short, anything they can do to capture economic rent. All of these activities are in fact anti-free market. They create unearned profits, the economic rents, for those with influence, but cost consumers and the economy much more in losses than they gain in unearned profit. There is a net loss to the economy which is why in free market economics, we criticize those arrangements.
The NFL is a cartel. One of the worst offenders in our economy. It is a poster child for corporate statism. The 'competitive balance' that you cite above, is a textbook example of restraint of free trade. Let me spell it out for you:
1) Restraint of free trade for labor via the draft is anti-free market;
2) Restricted free agency is anti-free market;
3) Salary cap is anti-free market;
4) TV contracts via a cartel agreement is anti-free market;

I could go on, but you should get the drift. So to answer your rant and ad hominem attack, yes being for 'competitive balance' in the NFL via the above mechanisms is to be against the free market. It's that simple and that unavoidable.

by speedegg :: Wed, 05/18/2011 - 7:58pm

Friedman? I'm intrigued. Does this mean you are not an advocate of Keynesian theory?

by morganja :: Wed, 05/18/2011 - 8:36pm

I'm a huge fan of Milton Friedman. I don't necessarily agree with everything he says, but his approach to solving problems is excellent, specifically, his Pragmatic approach in the philosophical sense of the word.
In modern economics there really aren't different schools as it is generally interpreted by the press and literati. As Milton Friedman once famously said, there were no such things as schools of economics, only good economics and bad economics.
As far as the NFL cartel is concerned, there is no disagreement over the facts amongst economists, no matter what 'school' they supposedly belong to. The NFL cartel creates economic rents, unearned profits, which are currently divvied up between the owners and the current players. That is what this battle is over.
The victims of this cartel are football fans, taxpayers in most NFL cities and states, and potential professional football players who would be able to play professional football if the NFL cartel did not exist.
Here is another pertinent quote:
"With some notable exceptions, businessmen favor free enterprise in general but are opposed to it when it comes to themselves."
Perfect example.

by rfh1001 :: Thu, 05/19/2011 - 4:26am

Football fans are only the victims unless the cartel creates a product which the fans want to buy, and which couldn't be produced by non-cartel behaviour.

In fact, you started by seeming to want this product. You bemoaned the fact that: 'There will be no draft, salary caps, restricted free agency, anything that is in restraint of free trade. We will have a baseball situation in which there are 6 teams that outspend everyone else and at least three quarters of the league won't even be trying to win. Games will be boring. Season will be boring. Fans won't watch.'

My original point was that if you want the boring, baseball-like NFL you describe (or European football) then a free market solution will produce it. But now you seem to be arguing that the NFL is anti-free trade (which it is) without acknowledging that free trade will produce a boring NFL which will alienate its fans.

by GlennW :: Thu, 05/19/2011 - 11:38am

Yes. In addition to the contradiction with his earlier MLB/NFL comparison, morganja is criticizing a court decision that essentially says, no, we're not going to force the owners to put the players back to work indefinitely under the old cartel system. That's quite a bit different than an antitrust decision which blows up the entire system (which is apparently what morganja really wants to see, at least in this latest argument). So, if elimination of these cartel elements is what you really believe is fair and just, why not just let it play out without court intervention in the interim?

by speedegg :: Thu, 05/19/2011 - 1:53pm

Hmmm, I was thinking something along the lines of Keynes and Friedman are different sides of the same coin. Good economics and bad economics is akin to saying there is good physics and bad physics, true but general. While Keynes provided the conceptual framework for post-war economies (like aggregate demand), Friedman repudiated several Keynes tenets (Phillips Curve). However, Friedman monetarism seems to agree with Keynes while disagreeing on specifics.

Though for the NFL I think the situation might be different. Unearned profits would be small market teams staying in small markets (Buffalo and Jacksonville) and resisting the push to move to a large market (LA). The League wants them to move, the teams don't. The NFL tried to modify revenue sharing to eliminate the subsidy to those teams. The NFLPA stopped it with a court order saying it violated the CBA. The NFLPA was afraid without revenue sharing the salary cap would stay the same or decrease at a slower rate (wage stickiness in effect, no?) teams would get away with paying less in player salaries.

While true for cheap owners, the better run teams would spend the money to acquire talent and remain competitive. Eventually, the cheaper teams would have to spend more to upgrade their coaches and players to become competitive (like Detroit or Arizona) to increase revenue because modified revenue sharing wouldn't subsidize their operating costs. Revenue sharing amongst the owners is the second most contentious issue besides player costs. One won't get solved without the other.

by morganja :: Sat, 05/21/2011 - 12:37pm

Sorry. I've been busy. Let me be more clear in my opinion. I believe that the best thing for football fans and potential professional football players and owners, is a complete free market. They would be the big winners. The losers would be primarily the NFL owners, the current NFL players and the NFL as a league.

I was pointing out earlier that the people cheering for the whacked court decision by the 8th circuit were under the assumption that the ruling meant that everything would go on as before but with the owners getting the lion's share of the loot. I don't think that is what is going to happen.

The only possible way for that to happen is for the players to completely cave and become a union and then give up everything they have fought for. From that point forward, there is nothing stopping the owners from taking everything.

That is what the owners think is going to happen. I don't agree. I think the players are going to take this anti-trust suit to court. They will win. At that point, the owners have nothing. They won't be able to draft, have salary caps, restricted free agency, whatever this nonsense is with player contracts, and most importantly, their ability to negotiate as a cartel with television networks and the monopoly powers that they could impose, would be gone.

This is exactly what Goodell, Kraft and Mara have been trying to scare us about. What they fail to tell us is that what would be bad for the NFL would be awesome for professional football. Where we now have one league run by an autocratic cartel, we would have numerous leagues each vying to be the best.

The owners are using the lockout as their nuclear option. The players are countering with the free market as their nuclear option.

It is mind-boggling to see people who scream 'free market' the loudest automatically support the owner's cartel while condemning the free market solution. The judges' decision that they support is one that mandates a union and forces players to belong to that union. If this same exact decision was in a different case these so called conservatives would be irate that the courts mandated a union and forced workers to belong to it.

by PatsFan :: Sat, 05/21/2011 - 7:50pm

Given that the current NFL scheme is a known quantity, the burden of proof is on you to explain why your ideological wet dream would result in an outcome that would be "awesome for professional football" than the current scheme. I'll concede it would be better for those who put ideological purity first, but for the rest of us it's far from as obvious as you pretend it would be -- walking around screaming "free market! free market!" as some magical mantra does not an explanation make.

by rfh1001 :: Sun, 05/22/2011 - 7:27am

+ 1.

by morganja :: Sun, 05/22/2011 - 12:05pm

Lucky for me, we have several thousand years of history and just about unanimous agreement amongst economists of every political leaning. My 'wet dream' is actually a Pragmatic 'wet dream', so pretty much anti-ideological by definition.
I apologize if I assumed a basic understanding of economies or reality. I can see how that puts you in an unfortunate position. Rather than educate yourself, it is entirely correct for you to demand that others spoon feed you what everyone else has taken the effort to discover on their own.
Be that as it may, there is universal agreement amongst economists as to the effects of the NFL cartel. No matter their political leanings, there is no debate.
Specifically, by limiting the supply of football, the ability of others to enter into competition, the NFL:
1) Increases the cost to consumers for the football they get;
a) Ticket prices and concessions at stadiums,
b) Prices that television networks must pay for broadcast rights,
c) Increasing the number of commercials during games;
d) The price of marketing for advertisers, increasing costs,
2) Eliminates the ability of alternate leagues to enter the industry;
a) Eliminates choice amongst football fans,
b) Decreases the ability of football fans to watch football as they desire,
c) Allows universal imposition of unpopular rules such as no smiling after touchdowns,
3) Limits the number of people who can play professional football,
a) People who could make a living doing what they want in the free market are prevented from doing so by the NFL cartel,
b) Increases the salaries of the limited number of people who can play in the NFL,
c) But not necessarily all of them, the distribution of salaries skews towards the 'superstars' while 'replacement' level players must compete with the un-football employed 'replacement' level players,
4) Prevents other leagues from starting,
a) prevents entrepreneurs from entering into the football industry,

I could go on, but you get the idea. These are all undisputed effects of the NFL cartel.

by rfh1001 :: Sun, 05/22/2011 - 7:36pm

1. 'Lucky for me, we have several thousand years of history and just about unanimous agreement amongst economists of every political leaning,' you say. This is just not true. It really isn't. Economists of every political leaning are not unanimous about anything.

2. Libertarianism is not anti-ideological. It is an absolutist ideology.

3. There *is*, however, quite a lot of agreement amongst free market obsessed economists that the free market is the best solution to everything. I am a historian, and this is what I usually say to them, tailored to your arguments in this specific context:

a) Show me evidence of something like this working. You started off saying you thought baseball - a more free market solution - was boring. What is a solution, that works in the real world, that you don't find boring? If you can find one, tell me how the NFL gets there from where it is now. If you can't find one, but imagine that one can be created here, why do you think that?

b) If you say that 'a perfect free market has never been tried', I say that it is never going to be, because it takes no account of human reality. You may say 'but it should be!' I say, 'I think that's unrealistic; I would need to be shown a way it could happen that bore plausible relation to existing conditions before I could even begin to take it seriously.'

And other stuff, but I'm in a hurry.

by morganja :: Sun, 05/22/2011 - 11:30pm

1. Yet they are unanimous about the fact that the NFL is a cartel and the effects it has.
2. Some Libertarians are absolutists. No one knows that better than I. But some libertarians, note the case of the letter l, are not. I am of the latter. My philosophy is pragmatic in the philosophical sense of the word. I don't think there is anything of which one can be absolutely certain, and I'm ok with that.
3a. History is nothing but examples of the free market working and the negative effects of interventions that distort the free market. It is also full of examples of market failures, public goods, and externalities, amongst other things, that could be improved upon through limited government intervention. The NFL isn't one of them.

Baseball also has an anti-trust exemption, so I'm not sure where people are going with that. I cited baseball as an example of a cartel in which the owners drove themselves off a cliff.

3b. I think you might have me confused with an Objectivist, or corporate apologist.

by rfh1001 :: Mon, 05/23/2011 - 6:30pm

1. Yup, sorry, you are right. They agree on cartel. Less on its effects, I'd guess. Hands up.

2/3. 'History is nothing but examples of the free market working and the negative effects of interventions that distort the free market' is a pretty absolutist statement. I don't get how it segues with what you say about market failures. I am not sure why you say that the NFL isn't improved by intervention.

Again, tediously, I want to know what examples you want to put forward of the kind of thing you are talking about working. It's not good enough, I don't think, to argue that it will. One would need, I suppose, an example somewhere of a free market producing something like what you want, in the field of massive professional sport. And then, personally, I'd like to know how it would work with football in the USA to produce a product you would like, and, more importantly, millions of other people would like.

It just seems that the NFL is an complex, evolved, messy system that no one would have or could have designed by starting bottom up. It needs scrutiny and careful attention, and changes are important from time to time - concussions, for instance, which is probably an anti-libertarian viewpoint, now I think about it, but I am not totally sure (I'm not trying to be cute - I sometimes am surprised by the viewpoints particular libertarians take, and I know there are lots of different flavours, I really do); and I am broadly on the players' side economically - but I see no precedent that makes me think a free market is the solution.

(I am enjoying this by the way. I am all for FO's anti-politics stand, but here and now there is no discussion of sport without economics and thus politics. This is all about the sport.)

by morganja :: Tue, 05/24/2011 - 5:57pm

I think that we need to be careful about the terms we are using in this discussion, not for silly word games, which I hate, but to be clear on the ideas. Specifically, in this example, you use the term NFL. I would agree that market intervention is good for the NFL. What I don't agree with is that market intervention is good for professional football.
For the former, the NFL owners are clearly winners here. Current players are winners as well. The question is are football fans winners? We can argue back and forth over the relative merits of the NFL, but it ends up begging the question, who decides?
Given a choice, the fans would decide with their checkbooks. Without an alternative, or more accurately, a close substitute, it's a take it or leave it proposition for the fans.
The owners make decisions on what increases their profits. In a market environment, that is great for consumers, because the owners must innovate and compete on price and value. In a cartel environment, it is terrible for consumers.
A trip to watch a professional football team with the family can easily set a person back over $1000, if they can even get tickets.
Most of the recent innovations in the NFL came about because the USFL did them first. With competition between professional leagues, the game itself becomes better.
I have to go jump on the bed with my son, but look at professional soccer in England. There are a number of leagues and levels I can choose to be a fan of. If I can't stand the Premier league, or afford to be a fan of the Premier League, I can instead follow the Football League, or another lower level league.

by rfh1001 :: Wed, 05/25/2011 - 6:53pm

I agree about word games - I really hope I haven't been doing that.

And I also agree that it's ultimately all about the fan experience. The problem with European football, and I'm in London, is that I don't think the free European market produces anything as compelling as the NFL.

I qualify that. It produces lots of very compelling things; the NFL is another type of compelling thing. Moreover, it's compelling in a way that couldn't be produced by a free market, and I love it, and a lot of other people do to, and I honestly believe that a free market would not produce something as compelling.

The NFL is a better piece of short-term theatre, I think. A better piece of weekly television; of escapism. It's an artificial construction. European football is more like life, reflects its struggles better and so on. It both suits and is created by its free market environment. I think there is a place for both. But I certainly find the NFL, in its un-free-market way, precious and, in its essentials, worth preserving.

by morganja :: Wed, 05/25/2011 - 10:40pm

That's exactly what I am talking about. There should be a spectrum of choices competing with each other, or finding their niche. A league could form that mimics the NFL experience in many ways. Instead of separate teams, there is one organization. All players and coaches work for the one organization. All profits are divided between the stock-holders. That organization would not be breaking anti-trust laws by establishing budgets, salary maxes and mins, for each team, nor would they be violating anti-trust laws by assigning players to each team.
Of course players would be free to walk away and play for other football organizations/leagues, and they could not try to force media to not cover other leagues.
People like us, who favor parity, would be more likely to follow this football league. People who like one team to dominate could follow another. Everyone is happy.

by rfh1001 :: Thu, 05/26/2011 - 3:57am

All I think is that it wouldn't happen like this. You wouldn't get something like the NFL emerging from a free market, even if people wanted it. I can't see any process whereby it would, and if it did, it would swiftly become a cartel. Part of what makes it what it is is that it is the only show in town. I see why you might not like this, but it is one of the primary things that makes it compelling.

by GlennW :: Thu, 05/26/2011 - 11:24am

The NFL and its fan bases are just too firmly entrenched for this free market utopia which morganja describes to come about, at least not for decades. Morganja makes a good point about more football and more choices being better (not that such efforts haven't been made before), but these would effectively be minor leagues regardless of what economic system the NFL ends up with-- even a less competitive one that resembles the European football leagues. The other stuff like lower NFL ticket prices for the consumer and the major TV networks clamoring to broadcast the rival league games is a pipe dream. For example minor-league baseball is fun, affordable family entertainment, but it's not exactly making a dent in MLB's financial operations (it enhances them if anything). Likewise the NFL is going to dominate the marketplace for the long-foreseeable future regardless of what might happen in the antitrust court.

by morganja :: Thu, 05/26/2011 - 2:15pm

What we are discussing here is brand loyalty to the NFL. I think there is significant brand loyalty with the older people, but not much at all with the younger crowd. As far as a natural monopoly of one cartel I don't see that at all. Natural monopolies come about due to returns to scale that dwarf the market. What is it exactly that the NFL does that creates return to scale that dwarfs the market for professional football?

by rfh1001 :: Sun, 05/22/2011 - 1:29pm

again, accidentally repeated and can't delete. again, sorry.

by speedegg :: Sun, 05/22/2011 - 5:49pm

Um, well yeah. There isn't a dispute on whether the NFL is a cartel or a monopoly (remember Donald Trump's anti-trust lawsuit against the NFL?), it is. It can exist as such because of the previous agreements with the NFLPA. It also prevents dominance of one team by its practices (draft, salary cap, etc), because it isn't there to ensure "excellent" football, it's to provide entertainment. That's a distinct difference in what "product" to provide. As such, it wants a compelling game, not outright dominance. That gets more eyeballs watching the game. With the eyeballs come companies that pay for commercials and endorsements.

As for how a free-market NFL would look, just look at the chip or rental car industry. At first there are several competitors in the market. As time goes on the viable ones become more dominant and the bad ones go bankrupt or focus on another industry. Intel and Enterprise Rental are the biggest players in their industries by a wide margin and will continue to stay that way. The market is mature and the barriers to entry are high. So for football, the most profitable team (Washington Redskins) will probably be the dominant team in the NFL. New England and Dallas might challenge Washington every other season, but Dan Synder can just sign the top 5 players every year. The bottom half of teams would fold, because nobody wants to watch them. A free-market NFL would be more anti-competitive.

As for entrepreneurs entering the industry...there wouldn't be any. A new entrant would need around $100 million for a new stadium and $+123 million for payroll for just one team. The cost of a new league would be prohibitive. No new league could offer a competitive salary for players. Even if they were close, Dan Synder would outbid them. A new comer would be Donald Trump forming a competing league. He did, folded, sued the NFL and won, and for all his troubles got $1 for damages.

by morganja :: Sun, 05/22/2011 - 11:54pm

Interesting that you mention the USFL. Part of the reason that the USFL folded was because the NFL could, and did, exert their monopoly power on media to essentially ignore the USFL. Does anyone else remember how impossible it was to find any news or coverage of the USFL?
The jury found the NFL guilty of anti-trust violations. The award of $1 was clearly a mis-carriage, but neither here nor there.
Let's look at the facts. The NFL is receiving much higher than normal ROI. This is indisputable. Normally, when an industry experiences higher ROI than other sectors of the economy, it attracts entrants.
Why is this not happening?
You cite barriers to entry and this is very true. But the barriers to entry aren't from returns to scale, or any other legitimate cause. They are from the anti-trust exemption that the NFL currently enjoys.
Without that exemption, the barriers to entry aren't so very daunting after all. Especially with the ROI. You don't think there are thousands of people with those sorts of resources and connections who aren't salivating at owning a professional football team while making money hand over fist?
Let's not forget where most of the money comes from in the first place. I'm betting that ESPN, NBC, ABC and Fox are loving the thought of not having to meet the NFL's demands. They would love a little bargaining power themselves. ESPN could finance a league by itself. So could the others. Better than that, if they knew the NFL couldn't lock them out of Football, they can easily sign a long-term contract with a league that would create an instant viable alternative.
If you think about it, its the television networks that add most of the value that the players aren't creating. It's hard to understand, except for the financing, what the owners contribute.

by speedegg :: Mon, 05/23/2011 - 1:42am

I alluded to the USFL on purpose. If you recall, the USFL was formed because businessmen saw an opportunity to form a football league in the NFL's off-season. They also set up franchises in cities without an NFL team. They didn't try to compete directly with the NFL at first.

You will also recall, that the USFL had a tumultuous life. They made mistakes. Early on, franchises had to move to different markets or merge to stay viable. I'm sure the NFL exerted influence on some of the networks, but they probably didn't have to do much. What national network would sign a regional team with a small fan base and declining ticket sales? That was just the start, things really got bad when they decided to compete directly with the NFL. Remember, the USFL had a net loss of over $100 million when they closed shop.

Normally, a business wants to find an unfulfilled niche and fill it. The USFL tried that, decided against it, and got burned. The XFL (remember those guys?) tried the same thing and faded away. Ironic that the founder of the XFL found his niche in another industry, he's the Chairman of the WWE.

When there's high barriers to entry, no matter how much money is made, there's few new entrants. Going back to Intel and Enterprise, any new entrants in their industries? ROI or not, it's tough to break into a new sector. Microsoft (if that's not a NFL sized gorilla, not sure what is and they've been to court for anti-trust violations) cancelled their Zune music player because it couldn't compete.

Of course the networks would love to set the rules for NFL broadcasting, but it's hard when the League and owners developed and marketed their product so well that it's in high demand. Want to know what ownership does? Look at Apple or Intel. Bad ownership? Try Sony or AMD. In this case, a better example of bad ownership would be American Soccer and MLS. How can't they develop a potentially huge market with a big following? How many kids play soccer? MLS should be the biggest professional sport in the US, but it isn't.

by tuluse :: Mon, 05/23/2011 - 12:09pm

A few things are not exactly correct with your argument. 1) Intel is not the largest chip producer, and by a huge margin. Texas Instruments makes way more chips in a year than Intel does. 2) AMD has had trouble competing with Intel due to a couple things, the main one being lack of money to build factories on par with Intel's but also Intel was sued by AMD for anti-competitive behaviors and found guilty and AMD was awarded a much larger sum than $1.

Also, Apple has a larger market cap than Intel or Microsoft. So while Microsoft might be huge they are in fact smaller than Apple (although this was probably different when the Zune was introduced). MP3 players don't have a very large barrier to entry anyways, you don't have to make much to sell MP3 players. You can just contract all the actual production out.

I still don't agree with morganja, near as I can tell European soccer is the closest any sports organization comes to a free market system and I think it's way less compelling than the NFL. Meanwhile, I would argue the NFL is the furthest from a free market system and it is the largest sports league in the US, and it's popularity growth seems correlated with reducing how it resembles a free market.

by speedegg :: Mon, 05/23/2011 - 1:02pm

Dude, it's like when I alluded to USFL or MLS. It's like a tripwire. The Intel vs AMD and Microsoft vs Apple are messy examples of free market, legal hardball, and anti-trust laws. You can argue for or against, I just wanted to see where he was going with his point and see how much he thought it through.

by Jerry :: Mon, 05/23/2011 - 1:49am

1. In the USFL markets I'm familiar with (Boston '83, Pittsburgh '84), coverage of the team and league was good. ABC had a national Game of the Week. A quick look at 1984 TV listings shows that ESPN, which wasn't related to ABC then, had a Monday night USFL game. (Granted that there were many fewer cable households.) There may have been particular markets where the league was ignored, but I don't think lack of coverage was generally the problem.

2. Speedegg mentioned the XFL, which was a spectacular failure of a network trying to create its own football product (with the "help" of Vince McMahon). If someone were to come along with something else that drew NFL-like audiences, the networks would indeed jump at it. As we've seen with the WFL and USFL and XFL and UFL and Arena Football, a new football league isn't going to deliver that audience; maybe, given enough time, a league can develop a large enough following, but a bunch of people will lose a lot of money before they get there.

by Karl Cuba :: Sun, 05/22/2011 - 11:02am

I've been assuming that if the court decisions went the way you have predicted then it wouldn't result in no draft or salary caps. I think at that stage the owners would realise that they need the agreement of a union in order to put those things in place for the good of the game. Unfortunately that would take much longer than a year and that means no football this season.

by GlennW :: Mon, 05/23/2011 - 11:09am

> The judges' decision that they support is one that mandates a union and forces players to belong to that union.

How so? Your opinion on the desirability of a free market aside (which is a fair one), why must the courts order the owners to open their doors? Why not just continue to pursue the lawsuit in antitrust court, as the players are (apparently) doing? I've asked this question a few times now-- why are the courts obligated to intervene with an injunction? In my opinion the only ruling that the appellate court has made is that the legal justification for the interim "right to work" was not met. That decision might have been right or it might have been wrong, but it's not central to the ultimate decision on any free-market antitrust violations.

by Dave Bernreuther :: Wed, 05/18/2011 - 8:38am

Congratulations on being a libertarian. That's great. It's also irrelevant.

You can have an opinion, but you're not qualified to interpret the law or call those who do morons. That's ridiculous. You just don't like the decision.

by Stats are for losers (not verified) :: Tue, 05/17/2011 - 9:12pm

Love this line of reasoning... that's why all court decisions are unanimous? 'Cause they're all lawyers?

by Dave Bernreuther :: Wed, 05/18/2011 - 8:35am

Who said anything about that?

I was taking offense to the fact that he called these very well-qualified judges "morons" and "hacks" for correctly interpreting the law and declaring that Nelson was overreaching.

by GlennW :: Wed, 05/18/2011 - 10:53am

Even if the appellate court's decision ultimately is proved to be wrong on appeal, yeah, I'm having trouble taking seriously the legal opinions of someone who is on record that the *majority* of judges (not just these two) are incompetent political hacks. Methinks morganja is more anarchist than libertarian.

by Anonymoose 2 (not verified) :: Wed, 05/18/2011 - 11:39am

Methinks morganja got his greenhouse impounded and lost the appeal.

by The Ninjalectual :: Wed, 05/18/2011 - 11:31pm

Methinks morganja got his greenhouse impounded and lost the appeal.

Not sure where you live, but here in Colorado growing and smoking are perfectly legal according to state law, and the feds currently aren't interested in enforcing federal law here.

by Anonymoose 2 (not verified) :: Thu, 05/19/2011 - 5:16pm

It's not the Feds, it's local. For the legal pot houses, it's not the sellers or buyers. It's crooks that think there's a pile of cash behind the counter that causes problems. For the growers, they think fire and building codes don't apply, so their crop goes up in smoke. Unfortunately, it also takes out the nearby houses and buildings. Folks don't take kindly to that.

by ChicagoRaider :: Wed, 05/18/2011 - 3:19pm

Recently the Supreme Court decided that some wackos had the right to protest at funerals of American soldiers. 8-1. Now, it is pretty clear that the politics of the situation was that the protests should be banned.

Disagreements among judges are far more driven by judicial philosophy than party politics. What weight does the purpose of the law get versus the literal text? What if there are two close, but subtly disagreeing precedents and one is old and the other is recent? How much deference does a judge give judgments by Congress in an issue that has no clear answer? As a judge who gets reviewed on appeals, do you try to predict what the appellate court will like, or do you just do what you think is right? Republicans tend to text over purpose. But on the other issues, it is highly variable regardless of party.

by Stats are for losers (not verified) :: Wed, 05/18/2011 - 4:24pm

Let's put the rhetorical shoe on the other foot, then:

Unless you play football professionally or own a football team, keep your mouth shut. You don't know what you're talking about.

by morganja :: Wed, 05/18/2011 - 5:09pm

I'm sorry, which well-qualified judges 'correctly' interpreted the law? We have three that have interpreted it one way, two the opposite. But we can also add in just about every other legal opinion from disinterested observers. Your two are in the extremely slim minority.

by rfh1001 :: Tue, 05/17/2011 - 3:47am

Oops. I meant this to be a reply to 9. I've posted that reply where it should be. I'd like to delete this post but I am not sure I can.

So, er, hi. Sorry.

by DFJinPgh (not verified) :: Tue, 05/17/2011 - 12:16pm

Regarding this, from the ruling: "In sum, we have serious doubts that the district court had jurisdiction to enjoin the league's lockout, and accordingly conclude that the league has made a strong showing that it is likely to succeed on the merits."

I'm not a lawyer, so I'm asking those who are. Isn't this a non-sequiter?

The first clause says the district court did not have jurisdiction. The second says that the league has merits to its arguments. (Are either of these interpretations correct? Lawyers talk very different from humans.)

How does the lack of jurisdiction of a lower court that ruled against on the merits of a case mean the merits are stronger than ruled upon?

by Alternator :: Tue, 05/17/2011 - 12:28pm

IANAL, but I've seen this analyzed by enough lawyers that I think I understand anyway.

The finding that the lower court probably didn't have jurisdiction means, essentially, that the lower court did not have sufficient reason to enjoin the lockout: one or more of the criteria required was not present. (Obviously this isn't a final finding, and don't take it as totally official.)

The finding that the league has merits means that the league actually DOES have all the requirements for a stay of the lockout; in other words, the league proved its case sufficiently well for the stay to remain until the full appeals judgement is rendered. Note that what the league needs to prove for a stay is different than what the NFLPA needed to prove to have the lockout enjoined.

The combination of the two means that the Court of Appeals has ruled that the lower court likely erred, and may have incorrectly interpreted the law. The Court of Appeals finds that these two are sufficiently likely for the lower court's ruling to be put on hold pending appeal.

The exact phrasing of the ruling also strongly, strongly implies that the owners are going to receive a favorable final judgement from the Court of Appeals. This would mean that, pending a ruling on the Brady vs. NFL case and the NFL's claims in labor court, the lockout will be maintained indefinitely.

by PatsFan :: Tue, 05/17/2011 - 12:30pm

The question before the district court was:
(a) did the court have jurisdiction to enjoin the lockout, and
(b) if it did have jurisdiction, should it enjoin the lockout

Remember that the NFL was arguing the court did not have jurisdiction while the whole "Is the decertification a sham or not" question was being pondered by the NLRB.

The CA8 panel is saying that it has serious doubts about the district court having jurisdiction. Since lack of jurisdiction is what the NFL was arguing it, that means the court believes the NFL's arguments have a good chance of being successful ("succeed on the merits") and that's why the CA8 panel has stayed the injunction pending the appeal.

by ChicagoRaider :: Tue, 05/17/2011 - 1:59pm

Let's take it part by part:

"Did not have jurisdiction": the Court did not have the power to make its ruling. There is a reason that traffic court does not make personal injury decisions, even if the injury happened in traffic. Traffic court only has jurisdiction over traffic matters such as speeding tickets. Here the issue is whether a court or the National Labor Relations Board was the place to go in the first instance.

"And accordingly, conclude that the league has made a strong showing that it is likely to succeed on the merits": because there are "serious doubts" about not having jurisdiction, the league has a decent chance of winning. Not a lock. Maybe even not 50-50. But enough that the courts should not change the status quo.

If the court does not have power to issue its injunction, that is very important. Federal Courts are courts of limited powers. They are not courts of what is called "general jurisdiction" that can hear any case. There is a list (a very long list) of things they can hear. But if the law is that you go to the NLRB first, they have to dismiss you. It is a common reason for dismissal -- "failure to exhaust administrative remedies." E.g. "Go to the NLRB and try there first."

by Karl Cuba :: Tue, 05/17/2011 - 1:10pm

This isn't directly a lockout thing but why does the US have such a partisan way of selecting judges? It seems to me that this pretty much guarantees that the court system will be riddled with politics and even worse, politicians. What's the upside that I'm missing?

by PatsFan :: Tue, 05/17/2011 - 1:39pm

Who do you propose should pick federal judges? How would you make it less partisan?

The US Constitution specifies that the President appoints Supreme Court justices subject to Senate confirmation. So that process can't be changed absent a constitutional amendment.

The entire federal court system below SCOTUS is essentially a creature of statute, as the Constitution leaves that open. Congress has passed laws that parallel the Constitutionally-mandated SCOTUS process and so both judges of the Circuit Courts of Appeal and the District Courts are also appointed by the President subject to Senate confirmation (though that can be changed by law).

This is (IMHO) a much better process than having judges stand for election as is done in many states.

I suppose one could argue that some allegedly neutral commission could appoint judges, but that (a) only moves the partisan problem back a step (how do the commissioners get appointed?) and (b) reduces accountability.

by Karl Cuba :: Tue, 05/17/2011 - 3:15pm

IN the UK we have a judiciary committee which selects judges on the basis of their experience and qualifications.

I just find it odd to read that court A favours right wing cases and court B favours the left. All I want from a court is for it to be fair and treat all cases equally before the law that has been determined by the legislative body.

It could be that it is impossible to do in a state with a written constitution.

by PatsFan :: Tue, 05/17/2011 - 4:41pm


Here's an interesting post from a leading Supreme Court lawyer about the alleged ideological biases of the court:


by Karl Cuba :: Tue, 05/17/2011 - 5:57pm

Thanks for that, not sure if it makes it any clearer and now I have a headache but thankyou all the same.

by tuluse :: Tue, 05/17/2011 - 7:23pm

Judges are still people, and some laws take interpretation to rule on. They aren't black and white cases. So when you have small groups of people making judgements on the law, sometimes they will disagree with each other.

As for you first sentence, experience and qualifications are the primary driver of judge and justice appointments in the US too. They're not putting Halliburton execs on the Supreme Court.

by morganja :: Wed, 05/18/2011 - 5:14pm

Absolutely and completely wrong. The primary driver of justice appointments in the US has always been political connections and reliability to support the party. This is not even in debate. Just look at history. The courts have always been filled with political hacks. Always.

by Anonymous88 (not verified) :: Tue, 05/17/2011 - 1:46pm

I'm not sure how you can avoid a judge's political beliefs. What alternative is there to how judges are selected?

by ChicagoRaider :: Tue, 05/17/2011 - 2:16pm

First, 99% of law is not controversial. The vast majority of cases are criminal cases in state courts. And there is no particularly strong political bias in almost all of those cases. There, the dispute lands in the jurors' laps and is not decided by judges very much. Second, a lot of other cases are about money between two companies. Again, unlikely that politics has an ax to grind. Which one gets the money is rarely the stuff of partisan politics.

The fact is that we hear about the controversial cases in the press. Also, the higher you go, the more judges there are. You get averaging. How many of the 75 or so Supreme Court cases do you hear about a year? 5? 3?

So far 63% of the cases decided by the Supreme Court this term are 9-0. (http://sblog.s3.amazonaws.com/wp-content/uploads/2011/04/SB_stat_pack_4-...) And another 13% 8-1. Only 6% are 5-4. This is biased by the more controversial cases coming out later. For the past several years, 41% of cases are 9-0, and another 8% are 8-1. But the number of 5-4 cases are at 22%. But I think you would find that the 5-4 breakdowns are not the 5-4 you would expect.

by morganja :: Wed, 05/18/2011 - 5:29pm

The main problem is that, as many show here, there is this naive fantasy that judges are 'impartial'. By some kind of fairy dust they are transformed from politicians into impartial arbitrators through a system in which they are selected by governors or presidents. Presumably, people here think that governor appointments to the DOT, University trustees and the other political appointments they do result in the same high quality impartial, selfless service.
They are extremely political. The should be elected to limited terms.

by morganja :: Tue, 05/17/2011 - 6:42pm

It's a serious problem that has gotten worse. It looks to me that the entire issue is going to come to a head very soon. In just about every political issue judges ALWAYS support their political machine. Judges once operated under the illusion that they were impartial judges of the law. It has increasingly become obvious that they are nothing but political hacks, exactly what one would expect from judges selected by a political machine for their party loyalty.
Here we have the ludicrous situation of republican judges supporting the anti-free market position because they owe political favors to the NFL owners. That is exactly what happened here. The judges are not interpreting the law. They are simply siding with their political allies.
It's pathetic and insulting that America is saddled with this entrenched corruption.

by Moderate Mouse (not verified) :: Tue, 05/17/2011 - 7:35pm

Whoa, dude. You either need to live up to your namesake or quit cold turkey. Judge Doty is a Reagan appointee. Die-hard republican supporting free market enterprise. He should have agreed with the special master and ruled for the owners. Instead he ruled AGAINST the owners in the broadcasting revenue case because the contract overwhelmingly favored the owners and is counter-productive for a free market. What entrenched interest was he supporting? The players? Their lawyer? The entire NFL system is socialist, overwhelmingly pro-owner, and a violation of antitrust law, but it's exciting and works.

Seriously, if you want an idea of how a judge will rule look at their past opinions, the cases they worked as lawyers, and upbringing. I never understood why judges rule the way they do until Ben Stein spoke at a buddy's graduation from law school. He said judges' interpretation of the law is based on their past experiences. It's that simple.

by morganja :: Tue, 05/17/2011 - 9:51pm

Judges almost always side with the political machine that put them in power. Doty is one of the rare exceptions, a judge who actually believes in the free market and makes his decisions based on those principles. Almost every other judge is a political hack. Pure and simple.
No governor or president ever sat around one day and thought to himself, 'Who is the best, most impartial, independent judge of the law in the land? I'm going to appoint him to this judge position.'
What they think to themselves is who can I pick that I owe a favor and can be totally depended on to support my political machine? That is called a political hack.
Historically, the only good judges we have ever had in this country are the ones that slipped through the system by accident.
The NFL, in my opinion, doesn't work well. We are missing the alternative. From economics we know that socialist, violation of anti-trust law cartels benefit some to the much greater detriment of others. The beneficiaries are the owners and current NFL players, who are squabbling over the economic rents looted from the consumer. The people who are losing are the fans of football and players who could have played in a non-cartel environment.
Without the cartel there would be more football, better football, and it would be much cheaper for the consumer.

by wyatt (not verified) :: Tue, 05/17/2011 - 10:32pm

Since federal judges are appointed for life, what reason do they have to support or be beholden to anything?

by Anonymous88 (not verified) :: Wed, 05/18/2011 - 11:06am

To the extent that you think judges side with the political machine that put them in power, I would suggest that only means that the political machine that put them in power accurately predicted what kind of judge they would be. After all, most of the people appointed have some history that suggests which way they are likely to rule in certain instances, whether it be judicial decisions from their positions on lower courts or a party affiliation that is obvious. There are other instances of judges who did not side with those who put them in power besides the Doty example someone else mentioned. Former Justice Souter is the most obvious example, as he was appointed by the first Bush and was expected to be conservative but ended up being middle of the road to liberal. I highly doubt that these judges are being called in for favors on specific cases, but that there records reflect what they honestly believe is appropriate. To the extent it lines up with the beliefs of those who put them in power, I think it's far more likely that whatever politician picked them was well informed as to what their beliefs were when they picked them.

by Gray Jay (not verified) :: Wed, 05/18/2011 - 6:49pm

Add Earl Warren and Warren Burger to the list of Justices that ruled a little differently than their nominating Presidents (Eisenhower, Nixon) thought.

One thing I haven't seen mentioned in the legal analysis here: given that both of the 8th Circuit panel's rulings have gone 2-1, what are the chances of their final order on the injunction being reheard en banc? And then what is likely to happen?

Finally, when is Judge Doty going to get on the stick already and issue an order specifying damages and remedies? (Not that his ruling won't be immediately appealed to the 8th, of course.)

by morganja :: Wed, 05/18/2011 - 8:41pm

I think he is giving them every opportunity to solve this themselves and will not rule until he has to.

by Alexander :: Tue, 05/17/2011 - 9:16pm

For those seeking clarity the ruling in short is this:
1. There is a strong likelihood that the NFL is correct in its assertion that the courts are not allowed to hear this case (The District Court Judge is probably wrong).
2. The Owners have shown that continuing the stay would cause them irreparable harm. Irreparable harm is probably related to paying salaries they otherwise would not etc.

by northandsouth (not verified) :: Fri, 05/20/2011 - 4:13pm

irreparable harm was already proven on behalf of the players by the Nelson ruling, who was absolutely correct in stating that the issue at hand is not privy to the judgement of the NLRB, the position supported by the league reps.

The owners have not shown a legal finding of irreparable harm in both the Nelson and 8th Circuit courts.

by Dean :: Fri, 05/20/2011 - 4:50pm

The ruling that was "absolutely correct." That was the one that was overturned on appeal, right?

by Alexander :: Fri, 05/20/2011 - 11:09pm

It is not impossible for both sides of a dispute to be subject to irreparable harm if the other side prevails.