Appeals court hears case on NFL lockout

Reporting from St. Louis

Judge Kermit Bye, the senior member of a three-judge panel of the U.S. 8th Circuit Court of Appeals, said very little during Friday’s 70-minute hearing on the legality of the NFL lockout.

But what Bye said as proceedings wrapped up before a standing-room-only crowd might resonate with the owners and players.

“We won’t be all that hurt if you’re leaving us out and [you] should go out and settle the case,” Bye said. “We will keep with our business, and if that ends up with a decision, it’s probably something both sides aren’t going to like, but it will at least be a decision.”


In other words, try to get this done without the courts. That would make the two days of secret meetings this week in St. Charles, Ill., a starting point for a new labor agreement. Otherwise, it’s expected to be weeks before a ruling, which most onlookers believe will support the owners’ right to continue the lockout. However, as Bye said, both sides might disapprove of the ruling.

Twenty-one current and former players attended, including Carolina Panthers wide receiver Steve Smith, New York Giants defensive end Osi Umenyiora and Green Bay Packers defensive lineman Cullen Jenkins, projected to be one of the most sought-after free agents. NFL Players Assn. Executive Director DeMaurice Smith was present but NFL Commissioner Roger Goodell did not attend.

The show was between two former U.S. solicitor generals — Paul Clement, representing the owners, and Theodore Olson, working on behalf of the players. Each had powerful arguments, but it’s a business-friendly court, unlike the courts in Minnesota, where the players often have had favorable outcomes.

The panel already has upheld the lockout twice, with Bye the lone dissenter. That means for the players to prevail and have the lockout lifted, they need to sway either Judge William Duane Benton or Judge Steven Colloton.

Those two did the most talking Friday. They were more strident toward Olson, who spent most of his time arguing that the decertification of the players’ union was not a sham aimed at giving players an upper hand in negotiations.

We have “serious, serious doubts the union has disappeared for good,” Clement countered. He also argued that the players are not being irreparably harmed during the lockout, joking that some veterans have proclaimed this is the best off-season they’ve had.

“The fastest way to get football back on the field is to get extraneous antitrust law considerations out of this and get back to the bargaining table,” Clement said. “That’s the real takeaway here. Not only is that the common-sense way to get football back on the field, but it’s also the answer that the law has provided.”

Olson argued that legally the players have done everything proper in renouncing their union status.


“The league desperately wants these players to continue to be in a union so they can continue to violate antitrust laws,” he said.

Court-ordered mediation sessions next week have been canceled, probably to create an avenue for more private negotiations such as the ones held near Chicago. For camps to start on time next month, many project something needs to be accomplished before July 4.

“We’re trying to get back on the field and play football,” Kansas City Chiefs linebacker Andy Studebaker said. “It’s a process, and you can’t let too many emotions get in the way. We want football back.”