NFL, union will square off in St. Louis

BY Alex Marvez • June 2, 2011

Although there is no guarantee of a 2011 NFL season, the league and its players are set for the Super Bowl.

Of litigation, that is.

Ted Olson and Paul Clement don’t carry the same cache among football fans as Green Bay’s Aaron Rodgers or Pittsburgh’s Ben Roethlisberger. But how well both high-profile attorneys fare in a St. Louis circuit court Friday will go a long way toward determining whether those quarterbacks shall get the chance for a championship rematch.

Olson and Clement will each argue before a three-judge panel about whether the NFL should be forced to lift its player lockout as part of the Brady v. NFL antitrust lawsuit. The decision, which isn’t expected until at least late June, could prove the tipping point in stalled labor negotiations between the two parties.

With a favorable verdict, the NFL can continue to delay the start of its calendar year. Players cannot sign contracts, receive roster/workout bonuses or report to team headquarters. With paychecks set to get missed if regular season games are canceled, there will be increasing pressure upon player leaders to reach a new collective bargaining agreement or risk cracks in what has proven a unified front since the lockout began in mid-May.

The lifting of the lockout would force NFL teams to adopt a set of salary and personnel rules while welcoming players back into the fold. Even if the league and players don’t agree to a long-term labor pact, there would be a far greater likelihood of the season starting on time as Brady v. NFL worked its way through the court system.

“This one is important,” Olson told about the magnitude of the circuit court’s ruling. “Whether or not the lockout is temporarily enjoined does not resolve the question of whether the lockout violates the antitrust law. That’s going to be something that plays itself out further.”

Based upon past rulings, Olson has a daunting task ahead. He must sway at least one of the two circuit judges who voted to overrule a federal district court decision that had ordered the lockout lifted. Olson also must insure that judge Kermit Bye once again sides in favor of the Brady v. NFL plaintiffs.

That won’t be easy considering the legal opinion expressed last month by circuit judges Steven M. Colloton and Duane Benton in a 24-page brief. The duo rebutted many of the main points presented by federal district judge Susan Nelson, who had cited “irreparable harm” to players and “public interest” in her late April decision to order the lockout lifted. Colloton and Benton also objected to Nelson’s interpretation of labor laws that the NFL is trying to use to maintain the lockout and get Brady v. NFL dismissed entirely.

“I have been pretty confident about the NFL’s position on all these issue since I first became involved in the case,” Clement told on Wednesday. “Obviously, the league and I were gratified by the decision we’ve gotten from the panel on the temporary stay. But any good lawyer doesn’t read too much into any one ruling and you don’t take anything for granted.

“I would say I’m very confident about the strength of our position, not just because of the ruling to date but our reading of the law and everything we’ve seen written in the (two circuit judges’) brief.”

Olson feels just as confident in the case he plans to present before the panel.

“The league unilaterally terminated the CBA (early) and unilaterally implemented the lockout,” Olson said. “They broke off the deal they had with the players which would have gone a couple more years and decided they’d try to get a better deal than the one negotiated a couple years ago. It’s my sense the players are the victim of a league with monopoly power.”

Olson and Clement, both of whom held the prestigious position of solicitor general under President George W. Bush, were hired because of their legal prowess and familiarity in presenting appellate court cases. They will only have 30 minutes each to present their arguments while also answering questions from the three-judge panel.

“It does take a lot of preparation,” said Olson, whose most high-profile case was successfully representing Bush before the Supreme Court in the Bush v. Gore election trial. “There’s a famous aphorism that it takes a lot longer to write something short than write something long. There’s a lot more prep work required if you want to compress a lot of complicated arguments in a short period of time.

“You need to be crisp and concise. In most courts, you never know what the particular situation is going to be like. Judges are asking you questions and possibly interrupting you for answers or to press questions further. There’s a lot going on at the same time. In Supreme Court, sometimes you have to answer 60 different questions in the course of a half-hour. You have to be somewhat agile on your feet and prepare to shift directions if necessary.”

Olson raised the possibility that the losing side may appeal the circuit court’s ruling to the Supreme Court — a maneuver that could lead to even more legal wrangling and obstacles in ending the NFL work stoppage. Because of an upcoming summer recess, Olson doesn’t believe the Supreme Court would consider whether to hear an appeal until after the regular season was set to open in September.

“There are significant legal questions here that, if decided one way or the other, one side may not be satisfied,” Olson said. “The (Supreme) Court has frequently considered decisions involving professional sports. It would not at all be unheard of in a case like this that it would go to the Supreme Court.”

Clement downplayed speculation about a possible Supreme Court appeal.

“I’m in the process of focusing on the Eighth Circuit (Court). I’m not too worried about what will happen after that,” said Clement, who succeeded Olson in the Bush White House. “When you’re talking about the Supreme Court, you don’t have any guarantees they will look at the case at all. In fact, the odds are stacked against you. They hear only about one of every 100 (appealed) cases.

“I’m not saying this isn’t a big case. But I do think both sides have to go into this argument knowing that they are not likely to have an appeal (granted) to a higher court at this stage.”

An appeal also would be rendered moot if both sides agreed to a CBA. Multiple reports state parties from the league and players that included NFL commissioner Roger Goodell and NFL Players Association executive director held what was supposed to be a secret labor meeting Wednesday in Chicago. The talks ended Thursday.

“The parties met pursuant to court mediation," the NFL and the NFL Players Association said in a joint statement Thursday. "Owners and players were engaged in confidential discussions before Chief Magistrate Judge (Arthur) Boylan. The court has ordered continued confidentiality of the mediation sessions.”

Friday’s hearing will not be televised, but the eighth circuit court is expecting a full chamber of media members and spectators that will include law students wanting to see Olson and Clement perform their craft. The duo has opposed each other in court before as well as worked on cases together, which has led to a personal and professional relationship.

They also have a vested interest in the NFL. That’s because Clement and Olson are football fans. Clement, a Wisconsin native, supports the Packers. Now living in Washington D.C., Olson cheers for the Redskins.

“I’m looking forward to the argument,” Clement said. “I think by the end of it the court will have gotten representation from both sides that provides real clarity on the issues.”

Finding a resolution to those issues is essential if the NFL and its players are going to resume crowning their champions on the field rather than in the courtroom.

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