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Kessler hopeful lockout ends soon

NFL Commissioner Roger Goodell, center, speaks with reporters

NFL Commissioner Roger Goodell, center, speaks with reporters as negotiations between the NFL owners and players go unresolved. (March 11, 2011) Photo Credit: AP

Jeffrey Kessler will walk into a federal courtroom Wednesday morning in St. Paul, Minn., convinced the eventual outcome of the day's events will be an end to the NFL's lockout that began March 11.

There are no guarantees from the New York-based attorney. But when Kessler appears on behalf of his clients, who include star quarterbacks Tom BradyDrew Brees and Peyton Manning andGiants defensive end Osi Umenyiora, he hopes Judge Susan B. Nelson will be persuaded to end the lockout and allow players to resume preparations for the 2011 season.

"What we hope the ruling will be is an injunction that will stop the lockout," Kessler said in an interview with Newsday. "What that means is the NFL will have to tell clubs they're free to negotiate with players, pay players who are under contract, that players are free to come in for offseason workouts."

Nelson's decision isn't likely to come Wednesday, although there is a possibility that she could "rule from the bench" and grant an immediate injunction. Most cases, however, are decided in a week or two. And even with Kessler's confidence in the outcome, there still is the chance that Nelson will rule in favor of the league and extend the lockout, thus casting further doubt on when -- or even whether -- there will be football this season.

Another potential outcome: Nelson grants the injunction but issues a stay, in which case the lockout would continue pending an appeal in the Eighth Circuit Court of Appeals. The appeal might not be concluded until June or July.

Meanwhile, the NFL draft still is set for later this month, but it comes against the backdrop of the most significant labor uncertainty in nearly a quarter-century. Not since the 1987 players' strike, when the league used replacement players for three games before the regular players, many of whom crossed the picket lines, decided to end the strike and resume playing.

The NFL enjoyed unprecedented labor peace in the ensuing years, in part because the players embarked on a strategy of litigation that led to negotiation of a collective-bargaining agreement that extended from 1993 until early last month.

When federally mediated talks in Washington broke down in early March, the NFL Players Association decertified as a union and pursued antitrust litigation that now has the players and the league back in court.

What's different, however, is that the NFL refuses to continue operating while the league is being sued on antitrust grounds. That's in contrast to the era when the league continued operating while players such as former Jets offensive tackle Marvin Powell in 1987 and Jets running back Freeman McNeil in 1989, and former Eagles Reggie White and Keith Jackson, sued to force the league to improve its free-agency system.

"The owners want to avoid a repeat of 1989," said Gabe Feldman, an associate professor of law and the director of the Tulane University sports law program. "They don't want to allow the players to get paid while the players are suing them under antitrust law."

But the players believe that success ultimately lies with their litigation strategy.

"The players tried to strike in 1987, and you had replacement players -- scabs -- but that proved to be futile," Kessler said. "So the players shifted to filing an antitrust case with the Powell case, which was filed right after the strike."

So what proved to be an initial defeat for the players after the collapse of the strike eventually resulted in astronomic gains in salaries once the lawsuits were resolved and a new CBA was forged in 1993, the first year of unrestricted free agency. But after 18 consecutive seasons of labor peace, the two sides are at loggerheads, with NFL owners believing they're paying too much in salary and benefits and the players hoping to hold on to the gains they've made in recent years.

"The critical thing is our commitment to negotiate," NFL attorney Jeff Pash said. "We are not going to solve this in litigation. All that is going to do is delay a solution."

The NFL will argue that the NFLPA's decertification amounts to "a sham'' and that the two sides should continue negotiating toward a collective-bargaining agreement.

The NFL also will argue that the National Labor Relations Board must first rule on the league's complaint that the NFLPA bargained in bad faith before an injunction to end the lockout can be issued.

Among the attorneys arguing the case for the NFL: David Boies, who defended IBM against government antitrust charges and was hired by the Justice Department to litigate United States v.Microsoft.

Legal experts see no easy way out for either side, especially now that the litigation has begun. And regardless of what happens Wednesday, there is general agreement that direct negotiations will have to resume at some point for a long-term deal to be reached.

Atlanta-based lawyer David Cornwell said: "The NFL has a terrible track record in antitrust lawsuits, but despite those losses, the league has endured because at some point, there has been enough give-and-take to create some level of freedom for players and still retain competitive balance.

"That's why the sport is so popular, because you have 32 markets believing in the hunt for the playoffs," said Cornwell, who worked under NFL commissioners Pete Rozelle and Paul Tagliabue as assistant counsel to the league from 1987-92 and was a runner-up to NFLPA executive directorDeMaurice Smith in 2009 elections to select a successor to the late Gene Upshaw.

University of Pennsylvania law professor Andrew Brandt believes the litigation will eventually be settled before a new CBA is reached. “It’s just a question of when,” he said. “But I think there’s obviously some level of fear there for both sides. On the NFL’s part, I think you have to have some level of fear because of the words ‘treble damages.’” And the players? Brandt says any work stoppage that continues into the time when the season would be played will adversely affect many players financially.

But perhaps Nelson will offer a surprise on Wednesday that could prod both sides to back off. “Potentially, she could tell both sides that she’s not going to rule,” Brandt said, “and that she needs them to go back and have settlement discussions and perhaps set a time frame before they reappear before her.”

Wishful thinking? Perhaps. Then again, anything’s possible. Kickoff is set for Wednesday morning, the start of a long and complicated process that will help determine when the NFL gets back to competing on the field, not in the courtroom.


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