Reporting from St. Paul, Minn.
U.S. District Judge Susan Richard Nelson, in a hearing in St. Paul, Minn., urges NFL players and owners to make labor peace while she decides whether to impose an injunction that would end the lockout of players.
— A federal judge subjected the NFL to a series of difficult questions and maintained a skeptical tone toward its lead lawyer Wednesday as the league tried to defend its current lockout of players that threatens the season.
Inside an expansive federal courtroom that included a handful of players suing the league, U.S. District Judge Susan Richard Nelson told attorneys from both sides they are "at risk" and urged them to try to make labor peace at the table of a federal mediator over the next "couple weeks" while she decides whether to impose an injunction that would end the lockout.
Halting the lockout could allow players to sign free-agent contracts, and some legal experts speculate it will hasten cooperation to strike a deal.
NFL attorney David Boies made it clear he won't give in to the players just because Nelson might rule against the league, saying outside court, "This is the first quarter."
Asked which side he expects to initiate mediation talks — if there will be any at all — Boies said, "I'll let someone else answer that." If Nelson imposes an injunction on the lockout, the NFL is expected to take its case to the federal appeals court in St. Louis.
Players' attorney Jeffrey Kessler said outside court he will participate in mediation talks only as settlement discussions to the players' antitrust lawsuit against the league — Brady vs. NFL. That case includes star quarterbacks Tom Brady, Peyton Manning and Drew Brees, and Nelson will handle it along with an accompanying retired players' suit.
Players argue the best way to strike a new collective-bargaining agreement is to settle terms of the antitrust lawsuit that was filed when the players decertified as a union last month. The NFL wants the mediator to oversee plain collective-bargaining talks with the players, but the players fear if they do that, the owners will immediately say the players are unionized after all and that no antitrust violations have been committed.
"Would I do that?" Boies asked sarcastically outside court. "I don't think that's something they ought to worry about."
Nelson too pressed the attorney about the league's intentions to "lock them out forevermore. … There doesn't seem to be any ending," she said, a point players' attorneys raised in suggesting an unchecked NFL would work to withhold game checks and "punish" the players to induce an agreement more profitable for owners.
Players' attorney Jim Quinn told Nelson in court that she has the authority to impose the injunction because of "irreparable harm" that more than 800 unsigned players are suffering by not only missing paychecks and health benefits but being deprived of team-organized conditioning.
"It can be decided right here in this courtroom," Quinn said, rebutting the NFL's insistence that the union's questionable decertification should first be reviewed by the slow-moving National Labor Relations Board.
Boies pointed Nelson to a labor act he says bars federal courts from imposing injunctions on lockouts.
Nelson told Boies she has reviewed case precedent that supports her imposing an injunction, and said, "There is some bit of irony the [labor] act used to protect workers from strike-breaking judges should be used to protect the wealthy," referring to the owners.
Nelson, appointed in 2010 by President Obama, alerted the attorneys at the hearing's start that she had done extensive research on the case.
"We have a group of players who didn't want to be a union in 1993," Nelson said to Boies. "The players wanted to be protected and said [then] if the NFL wouldn't bargain in good faith, they'd decertify. I don't think [that] fits the model you're describing."
She then asked Boies how the labor act can "insulate a lockout" with no legal precedent to find.
Quinn told the judge the lockout is illegal.
Nelson urged the sides to get past their decertification-lockout stage and negotiate a deal for the sake of the "many people … affected.
"You have to figure out how to get to Plan C or D," Nelson said to Boies. "I'm just pushing you."
Afterward, Boies said he wasn't sure what to make of Nelson's scrutiny, but Quinn praised Nelson for handling the hearing "forcefully."