Ca8 Players Opposition To Stay

No.
11-1898
_________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT
_________________________
TOM BRADY et al.,
Plaintiffs-Appellees,
v.
NATIONAL FOOTBALL LEAGUE et al.,
Defendants-Appellants.
_________________________
On Appeal From The United States District Court

For The District Of Minnesota
_________________________
PLAYERS’ OPPOSITION TO APPELLANTS’ EMERGENCY MOTION

FOR A STAY AND A TEMPORARY STAY PENDING APPEAL
_________________________
James W. Quinn Theodore B. Olson

WEIL, GOTSHAL & MANGES LLP Counsel of Record
767 Fifth Avenue Andrew S. Tulumello
New York, NY 10153 Scott P. Martin
(212) 310-8000 GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Jeffrey L. Kessler Washington, DC 20036
DEWEY & LEBOEUF LLP (202) 955-8500
1301 Avenue of the Americas (202) 530-4238 (facsimile)
New York, NY 10019
(212) 259-8000
Counsel for Plaintiffs-Appellees

[Additional Counsel Listed on Inside Cover]
Appellate Case: 11-1898 Page: 1 Date Filed: 04/29/2011 Entry ID: 3782366
Barbara P. Berens Bruce S. Meyer
Justi Rae Miller WEIL, GOTSHAL & MANGES LLP
BERENS & MILLER, P.A. 767 Fifth Avenue
3720 IDS Center New York, NY 10153
80 South Eighth Street (212) 310-8000
Minneapolis, MN 55402
(612) 349-6171 David G. Feher
David L. Greenspan
Timothy R. Thornton DEWEY & LEBOEUF LLP
BRIGGS & MORGAN, P.A. 1301 Avenue of the Americas
2200 IDS Center New York, NY 10019
80 South Eighth Street (212) 259-8000
(612) 977-8550
TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
BACKGROUND .......................................................................................................3
ARGUMENT .............................................................................................................7
I. The NFL Defendants Will Not Suffer Any Irreparable Harm

Between Now And A Decision On The Merits Of The Appeal ...........7
II. The Players And Public Will Be Irreparably Harmed If The

Stay Is Granted ....................................................................................11
III. The NFL Defendants Are Unlikely To Succeed On The Merits

Of The Appeal .....................................................................................14
A. The Lockout Violates Section 1 Of The Sherman Act .............14
B. The District Court Properly Rejected The NFL

Defendants’ “Primary Jurisdiction” Argument ........................22
C. The Norris-LaGuardia Act Does Not Bar The District

Court’s Injunction .....................................................................25
CONCLUSION........................................................................................................30
TABLE OF AUTHORITIES
Cases Page(s)
Access Telecomms. v. Sw. Bell Tel. Co.,
137 F.3d 605 (8th Cir. 1998)................................................................................25
Alpharma, Inc. v. Pennfield Oil Co.,

411 F.3d 934 (8th Cir. 2005)................................................................... 23, 24, 25
Am. Needle, Inc. v. NFL,

130 S. Ct. 2201 (2010) ................................................................................ 2, 9, 15
Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. Co.,

353 U.S. 30 (1957) ...............................................................................................26
Bowman v. NFL,
402 F. Supp. 754 (D. Minn. 1975).........................................................................1
Brown v. Pro Football, Inc.,

50 F.3d 1041 (D.C. Cir. 1995) .............................................................................16
Brown v. Pro Football, Inc.,

518 U.S. 231 (1996) .................................................................... 15, 16, 17, 18, 28
Cal. Dental Ass’n v. FTC,

526 U.S. 756 (1999) .............................................................................................15
Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100,
421 U.S. 616 (1975) .............................................................................................18
De Arroyo v. Sindicato de Trabajadores Packinghouse,

425 F.2d 281 (1st Cir. 1970) ......................................................................... 29, 30
FTC v. Superior Ct. Trial Lawyers Ass’n,

493 U.S. 411 (1990) .............................................................................................15
Hilton v. Braunskill,
481 U.S. 770 (1987) ...............................................................................................7
Hinrichs v. Bosma,
440 F.3d 393 (7th Cir. 2006)..................................................................................1
ii
(continued)
Page(s)
IBEW & Local 59,
119 NLRB 1792 (1958) .......................................................................................22
In re Pittsburgh Steelers, Inc.,

Case 6-CA-23143, 1991 WL 144468 (June 26, 1991) ........................................21
Int’l Ladies’ Garment Workers’ Union v. NLRB,

366 U.S. 731 (1961) .............................................................................................21
Jackson v. NFL,
802 F. Supp. 226 (D. Minn. 1992).................................................................. 1, 25
Kan. City S. Transport Co. v. Teamsters Local Union No. 41,

126 F.3d 1059 (8th Cir. 1997) .............................................................................29
Laosebikan v. Coca-Cola Co.,

2011 WL 661495 (11th Cir. Feb. 24, 2011) ........................................................27
Linseman v. World Hockey Ass’n,

439 F. Supp. 1315 (D. Conn. 1977).....................................................................13
Local 2750, Lumber & Sawmill Workers Union v. Cole,

663 F.2d 983 (9th Cir. 1981)......................................................................... 29, 30
Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea Co.,
381 U.S. 676 (1965) .............................................................................................17
Mackey v. NFL,
543 F.2d 606 (8th Cir. 1976)..................................................................... 1, 15, 17
McNeil v. NFL,
1992 WL 315292 (D. Minn. Sept. 10, 1992) .........................................................3
McNeil v. NFL,
764 F. Supp. 1351 (D. Minn. 1991)................................................................ 1, 15
NBA v. Williams,
857 F. Supp. 1069 (S.D.N.Y. 1994).....................................................................16
iii
(continued)
Page(s)
New Negro Alliance v. Sanitary Grocery Co.,
303 U.S. 552 (1938) .............................................................................................26
News-Press Publ’g Co.,

145 NLRB 803 (1964) .........................................................................................22
Nken v. Holder,
129 S. Ct. 1749 (2009) ................................................................................ 7, 8, 12
Packard Elevator v. ICC,

782 F.2d 112 (8th Cir. 1986)..............................................................................1, 7
Powell v. NFL,
930 F.2d 1293 (8th Cir. 1989) ................................................................ 16, 18, 19
Red Lake Band of Chippewa Indians v. Barlow,

846 F.2d 474 (8th Cir. 1988)................................................................................23
Reiter v. Cooper,
507 U.S. 258 (1993) .............................................................................................23
Retail Clerks Union Local 1222 v. Alfred M. Lewis, Inc.,

327 F.2d 442 (9th Cir. 1964)................................................................................26
Scott v. Moore,
680 F.2d 979 (5th Cir. 1982)................................................................................27
Smith v. Pro-Football, Inc.,

420 F. Supp. 738 (D.D.C. 1976) ..........................................................................15
Tejidos de Coamo, Inc. v. Int’l Ladies’ Garment Workers’ Union,

22 F.3d 8 (1st Cir. 1994) ......................................................................................28
UAW v. Lester Eng’g Co.,

718 F.2d 818 (6th Cir. 1983)................................................................................26
United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aerospace Workers,
243 F.3d 349 (7th Cir. 2001)................................................................................26
iv
(continued)
Page(s)
United States v. McDonnell Douglas Corp.,
751 F.2d 220 (8th Cir. 1984)................................................................................23
White v. NFL,
41 F.3d 402 (8th Cir. 1994)....................................................................................3
White v. NFL,
585 F.3d 1129 (8th Cir. 2009) .................................................................... 2, 3, 20
White v. NFL,
836 F. Supp. 1458 (D. Minn. 1993).....................................................................24
Statutes
29 U.S.C. § 52..........................................................................................................29
29 U.S.C. § 101................................................................................................. 25, 28
29 U.S.C. § 102........................................................................................................26
29 U.S.C. § 104................................................................................................. 28, 29
29 U.S.C. § 113........................................................................................................26
29 U.S.C. § 152........................................................................................................27
29 U.S.C. § 157........................................................................................................21
29 U.S.C. § 158........................................................................................................27
29 U.S.C. § 176........................................................................................................30
29 U.S.C. § 178........................................................................................................30
Other Authority
S. Rep. No. 63-698 (1914) .......................................................................................29
INTRODUCTION
In asking this Court to stay the injunction pending appeal, the NFL Defen-
dants effectively come to the Court empty-handed. The NFL Defendants present
no evidence that they will suffer irreparable harm pending appeal—which is an ab-
solute prerequisite to the entry of a stay. See Packard Elevator v. ICC, 782 F.2d
112, 115–16 (8th Cir. 1986) (where the party seeking a stay “fail[s] to establish . . .
that [it] will suffer irreparable harm unless the stay is granted,” this Court “must
deny the stay” (emphases added)). Nor do they cast any doubt on the district
court’s rigorous legal analysis, set forth in an 89-page opinion that followed exten-
sive briefing and a five-hour hearing. See D.E. 99 (“Op.”); see also D.E. 117
(“Stay Op.”). And they do not make any meaningful effort to disturb the district
court’s detailed and voluminous factual findings about the Players’ irreparable
harm, see Op. 71–79, and the absence of any harm to the League, see Stay Op. 11–
12—findings that are subject to review in this context only “for clear error.”
Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006).
Instead, the NFL Defendants have trotted out the same legal arguments that
courts of this Circuit—and this Court itself—have repeatedly rejected.1 Over the
1 See, e.g., Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976); Jackson v. NFL, 802
F. Supp. 226 (D. Minn. 1992); McNeil v. NFL, 764 F. Supp. 1351 (D. Minn.
1991); Bowman v. NFL, 402 F. Supp. 754 (D. Minn. 1975).
last several decades, this Court has become deeply familiar with the NFL’s trou-
bled relationship with the Nation’s antitrust laws and NFL players. See, e.g.,
White v. NFL, 585 F.3d 1129, 1133–34 (8th Cir. 2009) (recounting the NFL De-
fendants’ history of antitrust violations). This litigation is the latest effort by the
NFL Defendants to manufacture reasons why judges in this Circuit lack authority
to entertain Sherman Act claims against them.2
The NFL Defendants also exhibit a near complete disregard for the real-
world consequences of their group boycott. The NFL Defendants did not even
dispute below—or in this Court—that their group boycott cannot survive antitrust
scrutiny. Instead, they present “jurisdictional” and “immunity” arguments de-
signed to permit conduct otherwise constituting a per se violation of the Sherman
Act—their group boycott or “lockout”—to continue. Yet, as the district court
found, the group boycott is a devastating blow to the players, whose careers aver-
age less than four years, and to the countless fans, businesses large and small,
communities, and other constituencies that depend on the game. See Op. 74–75;
Stay Op. 12–13, 18–19. The NFL already has announced it is ready to move for-
2 See, e.g., White, 585 F.3d at 1135–41 (rejecting the NFL Defendants’ re-
quest that a district judge be recused and for relief under Rule 60(b) from the
Reggie White settlement); see also Am. Needle, Inc. v. NFL, 130 S. Ct. 2201 (2010)
(unanimously rejecting the NFL’s claim of immunity from Section 1 of the
Sherman Act).
ward with player transactions if a stay is not granted, and this morning the Clubs
started distributing playbooks, meeting with players, and beginning off-season
workouts and mini-camps, see Ex. 123—further demonstrating that there is no ba-
sis for this Court to grant the extraordinary remedy of a stay pending appeal. The
law, the record, the equities, and the public interest all point in one direction: This
Court should deny the NFL Defendants’ motion for a stay pending appeal.
BACKGROUND
The NFL Defendants are recidivists. In 1992, a Minnesota jury found that
the NFL Defendants violated the Sherman Act by restraining competition in the
market for the services of football players. McNeil v. NFL, 1992 WL 315292 (D.
Minn. Sept. 10, 1992). Facing liability in McNeil and other cases, in 1993 the NFL
Defendants entered into a court-approved settlement with the players in White v.
NFL. See Op. 11; see also White v. NFL, 41 F.3d 402, 406 (8th Cir. 1994).
As part of that settlement, the NFL Defendants insisted that the players’ un-
ion—which the players had disbanded in 1989 in order to assert their antitrust
rights—be reconstituted. See White, 585 F.3d at 1137. Under the so-called “non-
statutory” labor exemption to the antitrust laws, that step would protect the NFL
Defendants from antitrust liability for agreements with the union during the subse-
3 Citations to “Ex. __” refer to exhibits to the Declaration of Travis D.

Lenkner, filed concurrently with this memorandum.
quent collective-bargaining process. Op. 3. In exchange, the NFL Defendants
“agreed to waive any right in the future to assert the non-statutory labor exemp-
tion, after the expiration of the CBA, on the ground that the Players’ disclaimer
was a sham or otherwise ineffective to end the labor exemption.” Id. at 11. The
players accordingly reconstituted the NFL Players Association (“NFLPA”) as their
exclusive bargaining representative; the parties entered into a collective bargaining
agreement (“CBA”) that mirrored the terms of the White settlement agreement,
with both documents governing their conduct going forward. Id. at 11–12.
The parties amended and extended the settlement agreement and the CBA
twice in the 1990s and again in 2006, at which point the parties extended it to Feb-
ruary 2013. Op. 12; see also Decl. of Richard A. Berthelsen, Ex. 3, ¶ 12 (“Berth-
elsen Decl.”). During this period, the NFL has reached unprecedented heights of
popularity and profitability. In May 2008, however—in pursuit of even greater
profits—the NFL Defendants terminated the CBA two years before its expiration,
ultimately causing it to expire on March 11, 2011. In the three years following that
2008 repudiation, the NFLPA attempted to negotiate an extension of the CBA and
the White agreement. The NFL Defendants consistently rejected the NFLPA’s
proposals, instead threatening to institute a “lockout” if the players did not accede
to their onerous demands for massive givebacks totaling billions of dollars.
With the collective-bargaining process having collapsed and the CBA expir-
ing, the players voted to forsake the protections of the labor laws and renounce the
NFLPA as their collective bargaining representative as of March 11, 2011.
Op. 13–14; see also Berthelsen Decl. ¶ 18.4 In doing so, the players gave up their
rights to bargain collectively and to strike, and sacrificed numerous other labor-law
privileges, in exchange for the freedom to pursue antitrust claims against the NFL
Defendants. Berthelsen Decl. ¶ 27. The NFLPA disclaimed any interest in repre-
senting the players in further bargaining. It disbanded as a union, filed a notice
with the Department of Labor to end its status as a labor organization, and filed an
application with the IRS to become a professional association. Op. 14; see also
Berthelsen Decl. ¶¶ 22–23.
Also on March 11, 2011, nine players and one prospective rookie sued the
NFL Defendants in the District of Minnesota, alleging (among other things) that
the threatened “lockout” violates the Sherman Act. D.E. 1. The Players also
sought a preliminary injunction against any group boycott in the form of a “lock-
out.” D.E. 4. At midnight—immediately after the CBA expired, and despite the
NFLPA’s disclaimer of union representation—the NFL Defendants carried out
their threat and imposed a lockout.
4 The players reaffirmed their disclaimer with another vote after the CBA ex-
pired. See Supp. Decl. of Richard A. Berthelsen, Ex. 10 ¶ 25 & Ex. D (“Berthel-
sen Supp. Decl.”).
This appeal arises from the district court’s grant of a preliminary injunction
to stop the NFL Defendants’ anticompetitive lockout. The district court concluded
that the NFL Defendants’ group boycott was per se unlawful under the Sherman
Act. Op. 83. Based on extensive affidavit evidence, the district court found that
the Players were suffering irreversible harm every day the lockout continued given
their short careers, their need to train constantly and compete to maintain their
competitive edge, and the impossibility of recreating contract negotiations that
would have occurred absent the lockout. Id. at 71–79 (players are “suffering such
harm now”). The court enjoined the lockout and, in a separate, 20-page, meticu-
lous opinion, denied the NFL Defendants’ motion for a stay.
The lockout not only causes immediate, severe, and irreparable harm to the
players, but it also jeopardizes the 2011 NFL season. The NFL Defendants esti-
mated that they themselves stand to lose $1 billion if the lockout remains in place
through August 2011, before a single game is canceled. Stay Op. 11 (citing Decl.
of Richard A. Berthelsen, Ex. 11, ¶ 3 (“Berthelsen Stay Decl.”)). The NFL Defen-
dants evidently hoped, however, that the lockout would pressure players to re-
unionize against their will, resume collective bargaining, and agree to a new CBA
with oppressive terms that limit player freedom and award an even greater share of
league revenues to the very owners who are trying to shut down the game.
ARGUMENT
As the district court recognized, see Stay Op. 4, a “stay is an intrusion into
the ordinary processes of administration and judicial review and accordingly is not
a matter of right.” Nken v. Holder, 129 S. Ct. 1749, 1757 (2009). Rather, to obtain
a stay of the district court’s injunction, the NFL Defendants bear the heavy burden
of showing that they are “likely to succeed on the merits,” that they “will be irrepa-
rably injured absent a stay,” that “issuance of the stay will [not] substantially injure
the other parties interested in the proceeding,” and that “the public interest” sup-
ports a stay. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
This Court has made clear that it “must deny the stay” where the movant
fails to establish “that they will suffer irreparable harm unless the stay is granted.”
Packard Elevator, 782 F.2d at 115 (emphases added). The NFL Defendants do not
identify any credible irreparable harm that would result from denying their motion;
indeed, the only irreparable harm would be harm to the Players, and only if a stay
were granted. Because the NFL Defendants fail that threshold inquiry, this Court
need go no further. In any event, the NFL Defendants cannot satisfy the remaining
requirements for obtaining a stay, all of which—including their low likelihood of
success on the merits and the public’s interest—decidedly favor the players.
I. The NFL Defendants Will Not Suffer Any Irreparable Harm

Between Now And A Decision On The Merits Of The Appeal.
The NFL Defendants can obtain a stay only by demonstrating that they “will
be irreparably injured” if the injunction is maintained during this appeal. Nken,
129 S. Ct. at 1761 (emphasis added). They cannot discharge their burden “simply
[by] showing some possibility of irreparable injury.” Id. In denying their request
for a stay, the district court found that “the NFL has shown no [irreparable] injury
resulting from or in any way related to this Court’s Order.” Stay Op. 7 (emphasis
added). That determination—which is entitled to deference—was plainly correct.
A. The NFL Defendants first contend that the injunction of their lockout
“forces the NFL member clubs to engage in conduct that plaintiffs contend also
violates the antitrust laws.” Mot. 19. That is a spurious claim: The NFL Defen-
dants effectively seek a stay pending appeal because, having been enjoined from
engaging in an illegal lockout under the Sherman Act, they apparently intend to
adopt other practices that may also violate the antitrust laws. But as the district
court recognized in denying the stay, the injunction does not “force” the NFL De-
fendants to do anything other than end the lockout. Stay Op. 8. They “can choose
either to continue [their] allegedly-illegal behavior until judgment, or to modify
[their] behavior” to comply with the antitrust laws. Id. The NFL no longer enjoys
the Sherman Act immunity provided by the collective bargaining agreement. But
that is a product of a choice the NFL Defendants made by opting out of the CBA
two years early. Op. 13. A party can scarcely claim “irreparable harm” when all it
must do is refrain from violating the Sherman Act. The NFL Defendants now
must operate just like any other business in America; the injunction does not sub-
ject them “to any harm that is distinguishable from the ‘harm’ faced by any litigant
with or without a stay.” Stay Op. 20.5
The premise of the NFL Defendants’ argument—that the league would be
unable to function without adopting practices that violate the antitrust laws—is
thoroughly refuted by the district court’s factual findings. The district court’s stay
order carefully reviews the unrebutted evidence that the League has extensive ex-
perience implementing new player systems on short notice to the teams. See Stay
Op. 12 (citing Berthelsen Stay Decl. ¶ 5). The same is true of the NFL Defen-
dants’ claims that competitive balance will be upset absent a stay. Id. at 11. And
to the extent the NFL Defendants suggest that any coordination among teams
would be unlawful—even on necessary matters like the schedule of games and
rules of play—they misunderstand the law. See Am. Needle, Inc., 130 S. Ct. at
2216 (“The fact that NFL teams . . . must cooperate in the production and schedul-
ing of games . . . provides a perfectly sensible justification for making a host of
5 In denying the stay, the district court noted that “the NFL’s claim that the
2011 season cannot proceed without a new CBA is somewhat puzzling in light of
the fact that the NFL chose to withdraw from the prior CBA two years before its
scheduled expiration. And the NFL cannot claim surprise. . . . The NFL, having
engaged in unsuccessful negotiations on a new CBA for almost two years, plainly
anticipated the NFLPA’s disclaimer . . . when it was expressly anticipated in the
White Settlement Agreement and CBA.” Stay Op. 9 n.4 (emphasis added).
collective decisions.”).
Indeed, even accepting the NFL Defendants’ premise that they will be
“forced” to institute potentially anticompetitive practices if the injunction remains
in place, their argument is illogical. If this Court were to enter a stay, the NFL De-
fendants would be exposed to treble damages for having imposed the lockout—the
most egregious antitrust violation imaginable, as it eliminates all competition for
players. Those damages, particularly if the lockout succeeds in canceling the en-
tire 2011 season, would necessarily be greater than any damages from narrower
restrictions the NFL might choose to impose. In any event, as the unanimous Su-
preme Court made clear in American Needle, there is no reason the NFL Defen-
dants cannot comply with the antitrust laws, just like every other commercial en-
terprise in America.
B. The NFL Defendants’ other purported “irreparable harm” argument—
that the injunction denies them their “labor law right to impose a work stoppage,”
Mot. 18—is equally unsound. As the district court found, the NFL Defendants do
not enjoy any “labor law right” collusively to lock out nonunionized employees.
See infra Part III.A. Moreover, because the Players are no longer represented by a
union, the injunction could not possibly skew the “balance of economic power in
the bargaining process,” Mot. 18—there is no “bargaining process” at all.
The record demonstrates that the NFL Defendants will suffer no short-term
10
harm if the injunction remains in place during the appellate process. See Stay
Op. 11–12. The NFL has announced the pre-season and regular-season schedules,
and its commissioner publicly declared that “we’re planning to play a full 16-game
regular season and playoffs.” Id. at 11 (citing Berthelsen Stay Decl. ¶ 9). The
NFL Clubs have sent contract tenders for the 2011 season to free agent players,
and they began conducting their annual college draft last night in New York City.
Id. (citing Berthelsen Stay Decl. ¶¶ 6, 8). On April 28, 2011, the NFL announced
that it would open its facilities to players on April 29, and that it has plans to begin
player transactions. See Ex. 12. The NFL is ready for the 2011 season to begin.
The NFL took these actions because it understood from years of experience
that it could implement appropriate player market rules without difficulty if a
lockout were lifted. Stay Op. 12 (citing Berthelsen Stay Decl. ¶ 5 and discussing
historic examples). The injunction actually benefits the NFL Defendants this year
by ensuring that the 2011 season will occur as scheduled, forestalling $1 billion in
losses by August 2011, see supra at 6, and netting them billions in revenues over
the season, see Berthelsen Stay Decl. ¶¶ 2–3. It therefore is difficult to credit the
NFL’s assertion that it will be “harmed” by the injunction.
II. The Players And Public Will Be Irreparably Harmed If The Stay
Is Granted.
Even if the NFL Defendants could somehow establish that they “will be ir-
reparably injured” by the district court’s injunction, this Court must weigh that
11
against the harm that granting the stay would certainly inflict on the Players and
the public interest. Nken, 129 S. Ct. at 1761 (emphasis added). The district court
correctly concluded that this balance “indisputably” favors the Players, Stay
Op. 13—another point on which it is owed substantial deference. The Players are
“presently incurring, and have been incurring,” irreparable harm “since the League
locked them out on March 12, 2011,” id., and the “public interest represented by
the fans of professional football—who have a strong investment in the 2011 sea-
son”—similarly “favor[s] the denial of a stay,” id. at 19.
A. Irreparable Harm to the Players. The district court’s finding that the
Players would suffer irreparable injury absent an injunction (and if there were a
stay) was “based on the extensive affidavit evidence submitted” by the Players.
Stay Op. 13; see also Op. 71–79. The NFL Defendants, however, “offered little, if
any, evidence to directly rebut the Players’ affidavits, either in response to the mo-
tion for a preliminary injunction,” or in seeking a stay. Stay Op. 13.
The NFL Defendants suggest that players will suffer no harm because the
Court can “decide this case” in a “highly expedited appeal during the offseason.”
Mot. 20. But professional football has become a “year-round business.” Berthel-
sen Supp. Decl. ¶ 37. During the so-called offseason, players participate in up to
14 weeks of practice and classroom sessions, learn their teams’ playbooks, un-
dergo team-supervised medical procedures and evaluations, and work out at team
12
facilities under the supervision of team personnel. Id. ¶ 38. The “offseason” also
is the time when free agency occurs. Absent the NFL Defendants’ group boycott,
nearly 900 free agents are on the market trying to prove themselves to new teams
and secure employment. Every day of a lockout robs those players of the competi-
tive market through which they sustain or extend their careers. Id. ¶ 42.
Moreover, with the lockout in place, it would become more likely with each
passing day that the 2011 season would be cancelled or significantly curtailed. In
order for the season to proceed, teams must sign free agents and rookies, hold
training camps, and finalize their rosters. See Berthelsen Stay Decl. ¶ 2. Even if
the lockout runs only through the spring, it will be difficult—if not impossible—
for teams to complete this process in time for a full season. Id. Indeed, the unre-
butted evidence before the district court established that “lifting the lockout imme-
diately is the only way to preserve the 2011 season announced by the NFL.” Id.
And if the season is cancelled or shortened, players will suffer further irreparable
harm because “‘the loss of even one year of playing time is very detrimental.’”
Op. 73 (quoting Linseman v. World Hockey Ass’n, 439 F. Supp. 1315, 1319 (D.
Conn. 1977)); see also id. at 72–74 (collecting cases).
B. Irreparable Harm to the Public. If ever there were a case among private
litigants that deeply affected the public interest, this is it. Professional football is
part of the fabric of American life. Because the uncontroverted record evidence
13
shows that the 2011 season could be cancelled or significantly curtailed without an
injunction in place, Berthelsen Stay Decl. ¶ 2, a stay may deprive the public of pro-
fessional football altogether. The “actual, ‘live’ interes[t]” of the public “in a pro-
fessional football season” strongly outweighs the NFL Defendants’ private interest
in maximizing their revenues through an antitrust violation at the expense of play-
ers and fans—as does the great harm that the lockout will inflict on communities
and businesses that rely on the NFL season for their livelihood. Stay Op. 19. It is
little wonder, then, that the NFL Defendants mention the public interest only in
passing on the last page of their motion.
III. The NFL Defendants Are Unlikely To Succeed On The Merits Of

The Appeal.
The district court also concluded that the NFL Defendants did not establish
the requisite likelihood of success on the merits. Stay Op. 18. Having devoted
well over 100 pages of detailed legal analysis to the relevant issues, the district
court was uniquely well situated to assess the strength of its own decision—and its
conclusion is demonstrably correct.
A. The Lockout Violates Section 1 Of The Sherman Act.

There is no serious dispute that the Players “have established the requisite
fair chance of success on the merits of their claim . . . that the lockout now consti-
tutes a violation of Section 1 of the Sherman Act.” Op. 84.
1. NFL “teams compete with one other . . . for contracts with . . . playing
14
personnel.” Am. Needle, 130 S. Ct. at 2212–13. As a result, this Court—along
with numerous others—has recognized that “restraints on competition within the
market for players’ services fall within the ambit of the Sherman Act.” Mackey,
543 F.2d at 618; see also, e.g., Smith v. Pro-Football, Inc., 420 F. Supp. 738, 744–
47 (D.D.C. 1976). The NFL Defendants’ “lockout” operates as both a group boy-
cott and a horizontal agreement to fix prices for player services. It is therefore per
se illegal under Section 1 of the Sherman Act. See, e.g., FTC v. Superior Ct. Trial
Lawyers Ass’n, 493 U.S. 411, 433 (1990). Even if viewed under the more flexible
“rule of reason” analysis, the lockout cannot pass muster because there is no con-
ceivable pro-competitive justification for the total elimination of competition in
the market for player services. “[A]n observer with even a rudimentary under-
standing of economics could conclude” that the NFL’s lockout would have an
“anticompetitive effect.” Cal. Dental Ass’n v. FTC, 526 U.S. 756, 770 (1999).
2. The NFL Defendants did not argue below that the lockout is permissible
under the Sherman Act. See Op. 83. Instead, they contended that their conduct is
immune from antitrust scrutiny under an implied exemption from the antitrust laws
designed “to allow meaningful collective bargaining to take place.” Brown v. Pro
Football, Inc., 518 U.S. 231, 237 (1996). But this “non-statutory” labor exemption
does not apply when, as here, “the plaintiffs are no longer part of an ‘ongoing col-
lective bargaining relationship’ with the defendants,” McNeil v. NFL, 764 F. Supp.
15
1351, 1358 (D. Minn. 1991)—where, for example, they have “decertif[ied] their
unio[n],” Brown v. Pro Football, Inc., 50 F.3d 1041, 1057 (D.C. Cir. 1995); see
also, e.g., NBA v. Williams, 857 F. Supp. 1069, 1078 (S.D.N.Y. 1994) (noting that
the non-statutory exemption is inapplicable once “the Players . . . request decertifi-
cation of [their union] as a collective bargaining agent”), aff’d, 45 F.3d 684 (2d
Cir. 1995). Indeed, the Supreme Court has expressly approved the “suggest[ion]
that the exemption lasts until the collapse of the collective-bargaining relationship,
as evidenced by decertification of the union.” 518 U.S. at 250.
The NFL Defendants nonetheless insist that the non-statutory exemption ap-
plies even though there is no longer any collective-bargaining representative with
which they could negotiate. That contradicts the position they took before this
Court in Powell v. NFL, where they “concede[d] that the Sherman Act could be
found applicable, depending on the circumstances, . . . if the affected employees
ceased to be represented by a certified union.” 930 F.2d 1293, 1303 n.12 (8th Cir.
1989). The NFL Defendants have now flipped their position in this Court.
The NFL Defendants’ view of the non-statutory labor exemption is mis-
guided in any event. The NFL Defendants overlook the district court’s main point,
which had nothing to do with Brown. As the Supreme Court and this Court have
held, the non-statutory labor exemption applies only to employer-union agree-
ments that concern mandatory subjects of bargaining or other issues “so intimately
16
related to wages, hours and working conditions that the unions’ successful attempt
to obtain that provision through bona fide, arm’s-length bargaining . . . falls within
the protection of the national labor policy.” Local Union No. 189, Amalgamated
Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 689–90 (1965); see also Mackey,
543 F.2d at 614. In other words, legitimate collective-bargaining agreements are
not antitrust violations. But a “lockout” is not an agreement between an employer
and union; it is a “procedural tool” that employers use “to pressure a union back to
the bargaining table.” Op. 86. The “lockout” here therefore does not fall under the
non-statutory labor exemption given that no union exists and there can be no col-
lective bargaining over anything.
In any event, it is the NFL Defendants who misread Brown. According to
them, the appropriate test under Brown is whether this litigation is “‘sufficiently
distant in time and in circumstances’ from the collective-bargaining process.”
Mot. 2 (quoting 518 U.S. at 250). But the NFLPA “still existed as the Player’s ex-
clusive bargaining agent” in Brown. Op. 43. The issue in Brown, therefore, was
whether the non-statutory exemption terminates when the parties reach impasse
“during and immediately after a collective-bargaining negotiation.” 518 U.S. at
250. In concluding that it does not, the Supreme Court emphasized that “impasse
. . . constitute[s] an integral part of the bargaining process,” id. at 239, and indeed
“may differ from bargaining only in degree,” id. at 246. That reasoning is inappli-
17
cable here, where the parties “have moved beyond collective bargaining entirely.”
Op. 45. When the collective-bargaining process has been terminated by renuncia-
tion of the employees’ union, there is no need to “accommodat[e]” the “congres-
sional policy favoring collective bargaining” with the “congressional policy favor-
ing free competition in business markets.” Connell Constr. Co. v. Plumbers &
Steamfitters Local Union No. 100, 421 U.S. 616, 622 (1975).
The “sufficiently distant” language in Brown addressed the entirely different
issue whether, “after impasse but within the still-existing collective bargaining
framework, it might be appropriate to lift the protection of the non-statutory ex-
emption.” Op. 45 n.31. The Supreme Court acknowledged that some cases might
be “sufficiently distant in time and in circumstances from the collective-bargaining
process that a rule permitting antitrust intervention would not significantly inter-
fere with that process,” but it deferred any decision “whether, or where, within . . .
extreme outer boundaries to draw that line.” Brown, 518 U.S. at 250. Tellingly,
the Court identified “collapse of the collective-bargaining relationship, as evi-
denced by decertification of the union,” as such an “extreme outer boundar[y].”
Id. (emphasis added). When the union has ceased to exist, “permitting antitrust in-
tervention” could not “interfere with th[e] [collective-bargaining] process.” Id.
The NFL Defendants’ reliance on Powell is similarly misplaced. Powell an-
ticipated Brown by holding that the non-statutory exemption continues to apply
18
even when the parties reach impasse during an “ongoing collective bargaining rela-
tionship.” 930 F.2d at 1303 (emphasis added). As in Brown, this Court acknowl-
edged that the exemption might eventually terminate notwithstanding the collec-
tive-bargaining relationship, id., but it did not suggest (let alone hold) that the ex-
emption would continue even after the employees were no longer represented by a
union—the NFL had conceded that it would not, see id. at 1303 n.12. In dissent,
Judge Heaney observed that, under the Court’s opinion, “the labor exemption will
continue until the bargaining relationship is terminated either by a NLRB decerti-
fication proceeding or by abandonment of bargaining rights by the union,” id. at
1305 (emphases added)—which is exactly what happened on remand in Powell.
3. Finally, there is no reasonable argument that the Players’ disclaimer of
their union was invalid. See Mot. 11–12. An overwhelming majority of players
voted––twice––to end the NFLPA’s status as their collective bargaining represen-
tative. See Op. 40; see also Berthelsen Decl. ¶ 18; Berthelsen Supp. Decl. ¶ 25 &
Ex. D. The NFLPA promptly amended its bylaws to prohibit itself or its members
from collectively bargaining with the NFL Defendants. See Berthelsen Decl. ¶ 21.
It filed a notice with the Department of Labor terminating its status as a labor or-
ganization and sought reclassification for tax purposes as a professional associa-
tion. Id. ¶¶ 22–23. It ended all participation in the benefit application process,
grievance proceedings, and the regulation of player agents. Id. ¶¶ 24–26. As the
19
district court recognized, “the disclaimer is not a mere tactic because it results in
serious consequences for the Players.” Op. 40; see also Berthelsen Decl. ¶ 27.
The players gave up their rights to bargain collectively and to strike, and sacrificed
numerous other labor-law privileges, in exchange for the freedom to pursue anti-
trust claims against the NFL Defendants. See Berthelsen Decl. ¶¶ 24–26.
The NFL Defendants’ contention that the players have acted in “bad faith” is
disingenuous at best: As the NFL Defendants well know, the only reason the play-
ers formed a union in 1993 was because—as this Court has recognized, see White,
585 F.3d at 1137—the NFL Defendants required them to do so as a condition of
the settlement agreement. Op. 11. That is precisely why the players obtained the
NFL Defendants’ written assurance that they would not challenge a future, post-
CBA disclaimer as a sham. Although the district court did not reach the issue, that
promise—made to induce agreement to the White settlement—constitutes a waiver
of the NFL Defendants’ argument. See Berens Decl., D.E. 43 Ex. A (Art. XVIII, §
5(b)). The NFL has predicated its so-called “jurisdictional” arguments on a pur-
ported “sham” disclaimer theory it expressly forswore in 1993.
In any event, “because the disclaimer was unequivocal, the Union is not
continuing to act as the Players’ bargaining representative, and because the Players
have given up very significant rights in doing so, any subjective motivation for
disclaimer is irrelevant.” Op. 41. This is precisely what the General Counsel of
20
the NLRB recognized in concluding that the players’ disclaimer of union represen-
tation in 1990 was valid: “[T]he fact that the disclaimer was motivated by ‘litiga-
tion strategy,’ i.e., to deprive the NFL of a defense to players’ antitrust suits and to
free the players to engage in individual bargaining for free agency, is irrelevant so
long as the disclaimer is otherwise unequivocal and adhered to.” In re Pittsburgh
Steelers, Inc., Case 6-CA-23143, 1991 WL 144468, at *2 n.8 (June 26, 1991) (em-
phasis added). As the district court noted, there is no “evidence of conduct by the
Players which is inconsistent with an unequivocal disclaimer.” Op. 35.6
Moreover, the NFL Defendants’ position would deny players their right not
to unionize. Forced unionization is foreclosed by Section 7 of the NLRA, which
guarantees employees the absolute right to “refrain” from “join[ing] . . . labor or-
ganizations” or “bargain[ing] collectively.” 29 U.S.C. § 157. “There could be no
clearer abridgment of [Section] 7 of the Act” than an employer who has granted
exclusive bargaining status to an agency that was not selected by a majority of the
employees. Int’l Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 737
6 Attempting to manufacture legal error, the NFL Defendants contend that the
district court did not consider each of the “separate requirements” articulated in
Pittsburgh Steelers. Mot. 13. In fact, the district court correctly recited the stan-
dard from Pittsburgh Steelers, see Op. 39, and painstakingly addressed the factors
articulated in that memorandum as well as “numerous [NLRB] opinions over the
last six decades,” id. at 34; see also id. at 34–42 (finding that the disclaimer was
unequivocal and in good faith and that there was no inconsistent conduct).
21
(1961). This explains why the NFL cannot cite any cases rejecting a disclaimer
where a majority of employees voted to end the status of their union and the union
disclaimed any interest in continuing as a bargaining representative.7 They cannot
make a “strong showing” that this Court will become the first to do so.
B. The District Court Properly Rejected The NFL Defendants’

“Primary Jurisdiction” Argument.
Equally meritless is the NFL Defendants’ contention that the district court
lacked the power to enter an injunction because this Sherman Act case somehow
falls within the “primary, if not exclusive, jurisdiction” of the NLRB. Mot. 11 &
n.4. Based solely on their own strategic filing of a baseless charge with the NLRB
alleging that the NFLPA’s disclaimer was a “sham,” the NFL Defendants now
claim that the federal courts must grind to a halt, and the players must suffer ir-
reparable antitrust injury, while the NLRB considers whether to initiate a formal
proceeding based on that charge. No such delay is required.
The NFL Defendants conflate three separate doctrines into a single (flawed)
“jurisdictional” argument. But as the district court carefully explained, the NFL
Defendants are simply wrong that any “jurisdictional” barrier exists. This case
7 In each of the cases relied upon by the NFL Defendants, the union continued
to operate as a union notwithstanding any purported disclaimer, or the employees
did not actually vote to repudiate the union. E.g., IBEW & Local 59, 119 NLRB
1792, 1798–99 (1958); News-Press Publ’g Co., 145 NLRB 803, 804 (1964).
22
does not fall within the NLRB’s exclusive jurisdiction; nor does Garmon preemp-
tion apply, because the antitrust claims asserted against the lockout involve only
federal law. See Op. 21–32. The NFL Defendants’ continued emphasis on these
arguments, e.g., Mot. 11 & n.4, underscores the weakness of their position.
As for the primary jurisdiction doctrine, the NFL Defendants nowhere ac-
knowledge that the doctrine is discretionary: Where a case involves an issue
within an agency’s “special competence,” Reiter v. Cooper, 507 U.S. 258, 268
(1993), “a court otherwise having jurisdiction over the case may stay or dismiss the
action pending the agency’s resolution” of that issue, Alpharma, Inc. v. Pennfield
Oil Co., 411 F.3d 934, 938 (8th Cir. 2005) (emphasis added). The NFL Defen-
dants likewise never acknowledge that the doctrine is to be “invoked sparingly, as
it often results in added expense and delay.” Red Lake Band of Chippewa Indians
v. Barlow, 846 F.2d 474, 476 (8th Cir. 1988).
A district court may invoke the primary jurisdiction doctrine only where “a
factual question requires both expert consideration and uniformity of resolution.”
United States v. McDonnell Douglas Corp., 751 F.2d 220, 224 (8th Cir. 1984)
(emphases added). Neither circumstance is present here, and there is not “much, if
any, basis for referring the disclaimer issue to the NLRB.” Op. 34.
To begin with, it requires no “expert” to confirm that the NFLPA’s dis-
claimer was not a “sham,” because the NLRB’s General Counsel—who ultimately
23
will determine whether to act on the NFL Defendants’ charge—has “already pro-
vided a clear standard for th[e] Court to apply” in virtually identical circumstances.
Op. 43. Even the NFL Defendants admit that the matter is governed by “long-
standing Board precedent.” Mot. 11. Applying such a consistent line of opinions
is “well within the ‘conventional experience of judges.’” Alpharma, 411 F.3d at
939; see also, e.g., White v. NFL, 836 F. Supp. 1458, 1500 (D. Minn. 1993).
For the same reason, “uniformity of resolution” is not a concern in this case,
where, as the district court observed, “it is likely, if not inevitable, that the NLRB
will dismiss that charge.” Op. 42. Indeed, it is the NFL Defendants who wish to
destroy uniformity, as they seek a result that is flatly contrary to the NLRB’s prior
actions in a case involving the same parties and virtually identical facts.
There is little to be gained by awaiting possible NLRB action, and much to
be lost though “substantial added expense and delay.” Alpharma, 411 F.3d at 939.
That is particularly true where, with every day the lockout remained in effect, the
players suffered additional irreparable harm. Op. 71; Stay Op. 13. The NFL can-
not demonstrate that this Court will likely find that the district court abused its dis-
cretion in concluding that the “downside of staying the action plainly outweighs
whatever value this Court might derive from an NLRB decision” should it
24
choose—at some point in the future—to open a proceeding. Op. 43.8
C. The Norris-LaGuardia Act Does Not Bar The District

Court’s Injunction.
The Norris-LaGuardia Act requires courts to adhere to substantive and pro-
cedural provisions when they issue injunctions in “case[s] involving or growing
out of a labor dispute.” 29 U.S.C. § 101. This case does not implicate the Norris-
LaGuardia Act because the term “labor dispute” is inapplicable to a dispute, such
as this one, that involves employer conduct after a union is no longer in existence
and labor law policy is no longer implicated. Op. 57–58. In this respect, the Nor-
ris-LaGuardia Act complements the labor-law provisions that foster and govern
collective bargaining—but neither those provisions nor the Norris-LaGuardia Act
itself apply now that “any bargaining relationship between players and defendants
[has] ended.” Jackson, 802 F. Supp. at 233.
1. Courts have long interpreted the Norris-LaGuardia Act’s definition of
“labor dispute”—“any controversy concerning terms or conditions of employ-
8 The NFL Defendants assert that this Court “reviews the issue of primary ju-
risdiction de novo.” Mot. 10. But in Access Telecommunications v. Southwestern
Bell Telephone Co., the Court expressly declined to decide “the standard-of-review
question, which is best left to be resolved in a case in which it is contested.” 137
F.3d 605, 608 (8th Cir. 1998). A majority of circuits review the issue for abuse of
discretion, which is particularly appropriate given that its application rests not on a
“precise formula” but instead entails considerable discretion. Alpharma, 411 F.3d
at 938. Regardless, even under de novo review, a stay would be inappropriate here
for the detailed reasons set forth by the district court. See Op. 32–43.
25
ment,” 29 U.S.C. § 113(c)—in light of the Act’s purpose of ensuring that employ-
ees “have full freedom of association, self-organization, and designation of repre-
sentatives of [their] own choosing, to negotiate the terms and conditions of [their]
employment.” Id. § 102; see, e.g., Retail Clerks Union Local 1222 v. Alfred M.
Lewis, Inc., 327 F.2d 442, 447 (9th Cir. 1964). The “Norris-LaGuardia Act . . .
was designed primarily to protect working men in the exercise of organized, eco-
nomic power, which is vital to collective bargaining,” Bhd. of R.R. Trainmen v.
Chi. River & Ind. R.R. Co., 353 U.S. 30, 40 (1957) (emphases added), and the Act
instructs that “the interpretation of this chapter” should be conducted with that ex-
pressly stated statutory objective in mind, 29 U.S.C. § 102.
The courts of appeals have therefore interpreted the definition of “labor dis-
pute” as a “dispute between a union and employer.” Op. 57. “As a general rule,”
the Seventh Circuit has explained, the Norris-LaGuardia Act “strips courts of ju-
risdiction to enter injunctions against labor unions in cases growing out of labor
disputes, express[ing] a basic policy against the injunction of activities of labor un-
ions.” United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aerospace Workers, 243
F.3d 349, 362 (7th Cir. 2001) (emphases added); see also UAW v. Lester Eng’g
Co., 718 F.2d 818, 823 (6th Cir. 1983) (same). The cases relied upon by the NFL
Defendants for the contrary proposition—see Mot. 7–8 (citing, inter alia, New Ne-
gro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 559–61 (1938))—do not, as
26
the district court scrupulously documented, so hold. See Op. 62–67; Stay Op. 16.9
Any broader reading would stretch the Norris-LaGuardia Act well beyond
its limited scope to include all manner of cases touching on an employment rela-
tionship. Appellate courts have repeatedly rejected such attempts to distort the
Norris-LaGuardia Act. See, e.g., Scott v. Moore, 680 F.2d 979, 1000 (5th Cir.
1982) (en banc) (no “labor dispute” when “no union had a collective bargaining
agreement with [the employer]”), rev’d on other grounds, 463 U.S. 825 (1983);
Laosebikan v. Coca-Cola Co., 2011 WL 661495, at *3 (11th Cir. Feb. 24, 2011)
(rejecting application of Act to injunction in employment-discrimination suit).
Because “the Players—now individual employees (or prospective employ-
ees) after having disclaimed their Union—have proceeded outside of the frame-
work of labor law,” they “are in the same legal position as employees who are not,
and never were, represented by a union.” Op. 59–61. This case, in which individ-
ual employees claim that NFL teams have committed an antitrust violation though
a group boycott, thus does not “gro[w] out of a labor dispute.” In this respect, the
Norris-LaGuardia Act dovetails with the non-statutory labor exemption. When a
union-employer relationship exists, agreed-upon terms governing the employment
9 The NLRA includes a virtually identical definition of “labor dispute,” 29

U.S.C. § 152(9), and uses that term quite plainly to refer only to disputes involving
unions and collective bargaining. See, e.g., id. § 158(d).
27
relationship are immune from antirust attack; antitrust immunity exists in that
situation to facilitate and promote collective bargaining in a unionized industry.
See Brown, 518 U.S. at 235–37. But just as Brown made clear that immunity from
Sherman Act liability is lost when the union-employer relationship collapses, the
reach of the Norris-LaGuardia Act likewise ends when there is no longer a union.
2. Moreover, even if the Norris-LaGuardia Act applied to the injunction is-
sued below, the injunction would still be permissible because it was issued in
“strict conformity with the provisions of [the Act].” 29 U.S.C. § 101. The NFL’s
argument is that this case falls within the jurisdiction-stripping provision of Sec-
tion 4(a) of the Act, which prohibits injunctions against “[c]easing or refusing to
perform any work or to remain in any relation of employment.” Id. § 104(a). Al-
though the district court ultimately did not reach the issue, it observed that the NFL
Defendants’ argument conflicts with “the plain language of Section 104(a).” Op.
56. That is correct. Section 104 prohibits injunctions only of actions typically
arising in disputes between management and organized labor, such as the “core
conduct of striking, organizing in unions, and picketing.” Tejidos de Coamo, Inc.
v. Int’l Ladies’ Garment Workers’ Union, 22 F.3d 8, 14 (1st Cir. 1994).10
10 The NFL Defendants briefly suggest (Mot. 9 n.3) that the district court’s in-
junction also violates Section 7 of the Act, which provides various procedural pre-
requisites for labor injunctions. See Op. 56 n.41. They are wrong. The district
[Footnote continued on next page]
28
The phrase “[c]easing or refusing to perform any work” in Section 104 has
no application to an employer’s refusal to permit someone else to work. The pro-
vision is directed to workers, not employers. Likewise, the phrase “remain in any
relation of employment” clearly does not refer to an employer’s decision to lock
out workers but rather clarifies that Section 4(a) applies not only to temporary
strikes but also to permanent cessations of employment. The phrase was drawn
from Section 20 of the Clayton Act, the precursor to the Norris-LaGuardia Act, see
29 U.S.C. § 52, where it “was specifically intended . . . ‘to guard the right of work-
ingmen to act together in terminating, if they desire, any relation of employment,’”
Local 2750, Lumber & Sawmill Workers Union v. Cole, 663 F.2d 983, 986 n.5 (9th
Cir. 1981) (emphasis added) (quoting S. Rep. No. 63-698, at 51 (1914)).
Thus, “[t]he ‘remain in any relation of employment’ language in section
4(a) . . . was used . . . simply to make clear that employee strikes could not be en-
joined either if the employees claimed to have ceased or refused to work temporar-
ily or if they claimed to have completely ended their employment relation with
their employer.” De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d
[Footnote continued from previous page]

court made all of the findings that would have been required by Section 7. And
while the NFL Defendants belatedly assert that the district court was required to
hold an evidentiary hearing, such a hearing is unnecessary where, as here, “the
relevant facts in [the] case are undisputed.” Kan. City S. Transport Co. v. Team-
sters Local Union No. 41, 126 F.3d 1059, 1067–68 (8th Cir. 1997).
29
281, 291–92 (1st Cir. 1970). Other courts of appeals have therefore recognized
that Section 4(a) does not apply to injunctions requiring an employer to reinstate
an employee. See Local 2750, 663 F.2d at 987; De Arroyo, 425 F.2d at 291–92. It
follows that an injunction barring a coordinated effort by employers to boycott
their employees does not fall within the scope of Section 4(a).11
In any event, because the NFL Defendants maintain that their individual
employment contracts with players remain valid during and after a lockout, it is
clear that a lockout cannot constitute a refusal to “remain in any relation of em-
ployment” even under their own flawed reading of Section 4(a).
CONCLUSION
For the foregoing reasons, this Court should deny the NFL Defendants’ mo-
tion for a stay of the district court’s preliminary injunction pending appeal.12
11 In a footnote, the NFL Defendants argue that because the Labor Manage-
ment Relations Act authorizes the President to enjoin a “strike or lockout” and ex-
empts such action from the Norris-LaGuardia Act, it “confirms” that lockouts are
subject to the Act. Mot. 7 n.2 (citing 29 U.S.C. §§ 176, 178(b)). That reasoning is
faulty. The exemption in the LMRA was necessary to permit the President to en-
join strikes (which clearly are covered by Section 4(a) of the Norris-LaGuardia
Act); it suggests nothing about whether Section 4(a) also applies to lockouts.
12 The NFL Defendants also ask this Court to set an expedited briefing sched-
ule. Mot. 2. The players do not oppose that request but suggest that the NFL De-
fendants’ opening brief be due May 11, 2011 (16 days after the district court opin-
ion); the players’ brief be due May 27, 2011 (16 days after the NFL Defendants’
brief); and the NFL Defendants’ reply brief be due June 3, 2011.
30
Respectfully submitted,
/s/ Theodore B. Olson

James W. Quinn Theodore B. Olson
Bruce S. Meyer Counsel of Record
WEIL, GOTSHAL & MANGES LLP Andrew S. Tulumello
767 Fifth Avenue Scott P. Martin
New York, NY 10153 GIBSON, DUNN & CRUTCHER LLP
(212) 310-8000 1050 Connecticut Avenue, N.W.
Washington, DC 20036
Jeffrey L. Kessler (202) 955-8500
David G. Feher (202) 530-4238 (facsimile)
David L. Greenspan
DEWEY & LEBOEUF LLP Barbara P. Berens
1301 Avenue of the Americas Justi Rae Miller
New York, NY 10019 BERENS & MILLER, P.A.
(212) 259-8000 3720 IDS Center
80 South Eighth Street
Timothy R. Thornton Minneapolis, MN 55402
BRIGGS & MORGAN, P.A. (612) 349-6171
2200 IDS Center
80 South Eighth Street
(612) 977-8550

Dated: April 29, 2011
CERTIFICATE OF SERVICE
I hereby certify that on April 29, 2011, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Eighth
Circuit using the CM/ECF system and served a copy by U.S. Mail on those partici-
pants in the case who are not registered CM/ECF users.
/s/ Theodore B. Olson

Theodore B. Olson
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036

Ca8 Players Opposition To Stay

Caricato da

Informazioni sul documento

Descrizione originale:

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Ca8 Players Opposition To Stay

Caricato da

Copyright:

Formati disponibili

No.

IN THE UNITED STATES COURT OF APPEALS

TOM BRADY et al.,

NATIONAL FOOTBALL LEAGUE et al.,

On Appeal From The United States District Court

PLAYERS’ OPPOSITION TO APPELLANTS’ EMERGENCY MOTION

James W. Quinn Theodore B. Olson

Counsel for Plaintiffs-Appellees

Counsel for Plaintiffs-Appellees

I. The NFL Defendants Will Not Suffer Any Irreparable Harm

II. The Players And Public Will Be Irreparably Harmed If The

III. The NFL Defendants Are Unlikely To Succeed On The Merits

A. The Lockout Violates Section 1 Of The Sherman Act .............14

B. The District Court Properly Rejected The NFL

C. The Norris-LaGuardia Act Does Not Bar The District

Alpharma, Inc. v. Pennfield Oil Co.,

Am. Needle, Inc. v. NFL,

Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. Co.,

Brown v. Pro Football, Inc.,

Brown v. Pro Football, Inc.,

Cal. Dental Ass’n v. FTC,

De Arroyo v. Sindicato de Trabajadores Packinghouse,

FTC v. Superior Ct. Trial Lawyers Ass’n,

In re Pittsburgh Steelers, Inc.,

Int’l Ladies’ Garment Workers’ Union v. NLRB,

Kan. City S. Transport Co. v. Teamsters Local Union No. 41,

Laosebikan v. Coca-Cola Co.,

Linseman v. World Hockey Ass’n,

Local 2750, Lumber & Sawmill Workers Union v. Cole,

News-Press Publ’g Co.,

Packard Elevator v. ICC,

Red Lake Band of Chippewa Indians v. Barlow,

Retail Clerks Union Local 1222 v. Alfred M. Lewis, Inc.,

Smith v. Pro-Football, Inc.,

Tejidos de Coamo, Inc. v. Int’l Ladies’ Garment Workers’ Union,

UAW v. Lester Eng’g Co.,

29 U.S.C. § 101................................................................................................. 25, 28

29 U.S.C. § 104................................................................................................. 28, 29

Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006).

to entertain Sherman Act claims against them.2

scrutiny. Instead, they present “jurisdictional” and “immunity” arguments de-

signed to permit conduct otherwise constituting a per se violation of the Sherman

Act—their group boycott or “lockout”—to continue. Yet, as the district court

started distributing playbooks, meeting with players, and beginning off-season

Defendants entered into a court-approved settlement with the players in White v.

3 Citations to “Ex. __” refer to exhibits to the Declaration of Travis D.

players accordingly reconstituted the NFL Players Association (“NFLPA”) as their

exclusive bargaining representative; the parties entered into a collective bargaining

popularity and profitability. In May 2008, however—in pursuit of even greater

to their onerous demands for massive givebacks totaling billions of dollars.

NFLPA as their collective bargaining representative as of March 11, 2011.

senting the players in further bargaining. It disbanded as a union, filed a notice

Berthelsen Decl. ¶¶ 22–23.

NFLPA’s disclaimer of union representation—the NFL Defendants carried out

their threat and imposed a lockout.

competitive edge, and the impossibility of recreating contract negotiations that

lous opinion, denied the NFL Defendants’ motion for a stay.

ports a stay. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

requirements for obtaining a stay, all of which—including their low likelihood of

I. The NFL Defendants Will Not Suffer Any Irreparable Harm

added). That determination—which is entitled to deference—was plainly correct.

either to continue [their] allegedly-illegal behavior until judgment, or to modify