NFL Labor Situation: What Is An Injunction?

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Late yesterday afternoon, Federal District Judge Susan Richard Nelson of the District of Minnesota granted an injunction on behalf of class of NFL players and against the National Football League blocking the league’s lockout (court opinion: http://a.espncdn.com/photo/2011/0425/judge_nelson.pdf).  Over the past day I have encountered some questions regarding injunctions.  The goal of this article is to explain the basics of injunctions and why Judge Nelson granted one in Brady, et. al. v. National Football League, et al.

What is an injunction?

An injunction is an equitable remedy.  It is an order of court that requires a party to a lawsuit to either to do, or to refrain from, certain acts.  It must be specifically requested.

What is an equitable remedy?

Most state and federal courts of general jurisdiction in the United States evolved from the English court system (the only notable exception are the courts of Louisiana, which was originally a territory of France, and, thus, are based on the French court system).  In England, two types of courts developed: (1) court of law (common law courts); and (2) court of equity.  Courts of law were based on the evolving common law and were designed to provide parties with redress for wrongs.  For example, you could sue in a common law court for monetary damages for breach of a contract.  Generally speaking, the money damages a person receives in a court of law are classified as ‘legal remedies.’  Both judges and juries can determine legal remedies.

Not every case, however, boiled down monetary damages and, as a result, you had people petitioning to the King for appropriate relief.  Edward I was overwhelmed (and annoyed) with these (often petty) petitions and, therefore, granted the Lord Chancellor jurisdiction over these matters.  Over time, this responsibility developed into a second court system within England.  The Court of the Chancery had the power to issue non-economic relief, such as injunctions, writs, and specific performance.  These forms of relief are classified as ‘equitable remedies.’  Only judges can determine equitable remedies.

In the United States, courts of law and courts of equity have merged.  Judges now have the power to grant both legal and equitable remedies.  The restriction remains, however, that only judges can grant equitable remedies.

What do you need to prove to obtain an injunction?

In our legal system, injunctions are rare and difficult to obtain.  The principles driving the development of our system favor a court system that retrospectively rights wrongs, rather than a system that prospectively prevents the wrongs from ever occurring.  Under our system of separation of powers, we must remember that the Legislature, not the Courts, is empowered with legislating behavior.  As such, Courts, who are backed by the Executive Branch (e.g., our police forces and military), are only to step-in and directly govern the behavior of individuals or groups in the most serious of circumstances.  Therefore, the test for obtaining an injunction is very exacting.

To obtain an injunction, you must prove the following:

(1) the injunction is necessary to prevent irreparable harm;
(2) the irreparable harm cannot be adequately compensated with money damages;
(3)  greater harm will be caused by not granting the injunction than actually granting the injunction;
(4) the injunction will not substantially harm other parties to the legal action;
(5)  the injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct;
(6) the underlying activity is actionable and the right to relief is clear (in other words, you are able to sue over the activity and you are likely to win your case);
(7) the injunction can be reasonable tailored to ensure that the offending activity will be halted; and
(8) the injunction will not adversely affect the ‘public interest.’

Why were the players granted an injunction?

There are clear laws and rules in this country governing the relationships and interactions between labor unions and employers.  In fact, the federal government setup a specialized administrative court, governed by the National Labor Relations Board, to resolve disputes arising under these laws and rules.

Initially, the players in the league were unionized.  The Union representatives were bargaining on behalf of every player in the league.  All of the players collectively bargained together and, theoretically, would have entered into the same general framework to determine the pay and benefits of each player moving forward.

At 5:00pm on March 11, however, the players filed to decertify as a union.  Essentially, the players dissolved the union and lost the ability to bargain collectively as a block.  Rather, each individual player is now free to bargain an individualized deal with his respective team.  The result, superficially, is the loss of leverage over the employer, but, given the circumstances, in reality, the result is chaos for the league.

The Supreme Court has ruled that according to federal Anti-Trust laws, each team is an individual entity.  As a result, the teams cannot work together (or collude, depending on your perspective) to control the contracts needed for the hundreds of free agents that must now be signed or the execution of the current agreements.  The teams can no longer treat the players collectively.

The lawsuit before Judge Nelson, however, accuses the league of just that: Anti-Trust violations based on the treatment of the players as a collective unit, rather than individuals.  What is the violation?  The lock-out.  Lock-outs are only permitted against labor unions.

Knowing this, why would the League still lock out the players? The League contends that the players’ decertification was a sham.  As a result, they have filed a parallel action with the Nation Labor Relations Board accusing the players of violating the relevant Labor Union laws.

Nevertheless, Judge Nelson rejected this argument and, without definitively ruling on the question of law (which will be decided later this summer), granted the injunction.  Judge Nelson accepted the players’ case which conformed with the test described above for obtaining an injunction.  You can review Judge Nelson’s ruling for her detailed discussion of each prong of the test and why the players succeeding in obtaining the injunction.

The decision is revealing, however, because, as I discussed, the players needed to prove that “the underlying activity is actionable and the right to relief is clear (in other words, you are able to sue over the activity and you are likely to win your case).”  By granting the injunction, Judge Nelson is tipping her hand and letting the League know that, based on all the evidence presented and the arguments made before her, her final ruling will most likely be in favor of the players.  In other words, she will most likely find that the League has committed a federal Anti-Trust violation.

What do you think?  Any questions about injunctions?  Leave a comment below and let me know!

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Cam Newton: Story of Redemption Without Responsibility

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Cheating in pro sports is no longer surprising.  We’ve lived through the steroid era and witnessed Spy-gate (New England Patriots).  The fact that most pro athletes are not role models is tending towards fact rather than opinion.  We know this because of Tiger Woods, Roger Clemens, and Michael Vick.  What does continue to surprise me, however, is the media’s reaction to both cheating and immoral behavior.  The sports media is more interested in glorification and instant gratification than accountability and journalism.

The perfect case study to illustrate my argument is how the media has handled the Cam Newton (QB at Auburn) controversy.  It has been alleged that Cam Newton has violated multiple NCAA rules, as well as the law.  (1) It has been alleged that while at Florida backing up Tim Tebow, Newton cheated on at least one major academic paper.  Allegedly, when the papers were turned in, Newton erased the name off another student’s paper and wrote-in his own name, then submitted the paper as is his own.  When the professor and the original author discovered the cheating, Newton undeservedly was offered a chance to redo the paper.  This time, Newton turned in a paper which the professor discovered was purchased off the internet.  (2) It is alleged that while at Florida Newton stole another student’s laptop.  (3) It is alleged that Newton and his father, prior to transferring to Auburn, sought over $100,000 in illegal payments from college boosters in exchange for his enrollment at the booster’s institution.

Newton’s Auburn Tigers currently are ranked second in the BCS standings and poised to play for the national championship.  Newton is also the leading candidate for the Heisman Trophy, college football’s highest individual honor.   The media is loving Cam Newton.  ESPN’s analysts and writers cannot heap enough praise on this kid.  Some are even proclaiming “Tim Tebow, who?”  Newton’s story, like his play, is full of excitement, drama, deceit, and achievement.  It’s pure entertainment.  The national talking-heads make it clear that they are cheering for Newton because everyone loves and appreciates a redemption story.

What’s missing, however, is the responsibility that should precede redemption.  How can someone who has yet to claim responsibility or suffer retribution redeem himself?  Nevertheless, lets assume you can redeem yourself without first accepting responsibility, can a person really redeem himself for cheating and breaking the law off-the-field simply by performing historically on-the-field?

After cheating and stealing (allegedly) at Florida, Newton fled to a junior college for a year in order to avoid punishment and a suspension.  Cam Newtorn has yet to address the play-for-pay claims against him while evidence collected by FBI agents mounts.  Rather, he’s just soaking in the hype and love as we approach Heisman weekend in a few weeks.

There is nothing redeeming in this story!  Cam Newton is entirely distinct than what we are witnessing with Michael Vick (who in my book is on his way to redemption, but not completely there yet).  Vick pled guilty to the allegations against him.  He served time in a federal prison.  He experienced a bankruptcy.  He trained hard and returned to the NFL.  Now, while he is playing well on-the-field, his true redemption is occurring off-the-field.  He continues to educate others on the mistakes he made, handled the Kolb-Vick starting controversy with humility and respectfulness, and is quietly and humbly playing hard while appreciating his second opportunity.

Many of the  “journalists” who equate Newton with Vick and have the privilege voting for the Heisman have already gone on record as saying that the off-field allegations will not be a factor when they crown Newton in New York (at the Heisman Trophy Ceremony) in a few weeks.  They are going to vote for Newton and just let “the process” work out the rest.  Well, what happened to journalism in this country?  Journalism used to be driven by investigative work.  Journalism was part of “the process.”  Why is ESPN promoting and forgiving this kid?  Where are their standards?  Does entertainment outweigh the myth of the division 1 student-athlete and the respect of Newton’s victims?  Sure seems that way in Bristol (ESPN HQ) these days.

Agree or disagree?  Leave a comment below and let me know!

My Perspective on the McNabb Era: Cheer or Boo?

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The big question in Philadelphia this week is whether to celebrate or vilify Donovan McNabb when he returns to Lincoln Financial Field on Sunday as a Washington Redskin.   Should the fans cheer or boo when he is introduced to the reputable Philadelphia crowd?  My answer?  Neither.

I believe the most fitting tribute to McNabb legacy is a polite golf clap.  It suits the moment perfectly.  It’s respectful, positive, but not over the top.

Donovan McNabb did a lot for the Eagles franchise.  He provided stability at one of the most important individual positions in sports.  He quarterbacked the team to five NFC Championship games and one Super Bowl.  He set franchise records for production.  He did a lot for the Philadelphia community.  He was a squeaky clean guy who never made it rain in a strip club, sexually assaulted a college co-ed, or got busted for drunk driving.  He represented this city well during his interviews and guest star appearances with the national talking heads.  He was a good quarterback.  Therefore, he does not deserve to get booed.

At the same time, he was good, but he was not great.  He may have had sparks of something special, especially when he was a scrambling quarterback before he shredded his knee twice, but on the whole, he was not an elite quarterback, nor should he be remembered or treated as a hero.  Here are my top reasons why:

(1) Shrunk In the Biggest Moments – Yes, Donovan McNabb made one Super Bowl and five NFC Championship games.  Out of those six games, however, he only rose to the occasion once.  Once!  Three times in the NFC Championship game the Eagles went in as the favorite and three times they lost, twice after an anemic offense performance and once with the ball in McNabb’s hands and the opportunity to win the game.  In 2002-2003 they lost 27-10 at home to the Tampa Bay Buccaneers.  The next year they lost 14-3 to the Carolina Panthers again at home.  In 2008-2009, they lost to the Arizona Cardinals 32-25.

Remember the final two minutes of the Super Bowl?  McNabb blew chunks in the huddle (allegedly).  His performance should appear in the dictionary next to the definition for “dazed and confused.”  He again had the opportunity to win the game but acted with no sense of urgency, clearly overwhelmed by the moment.  There is no way you can classify how he performed as “great.”

McNabb is no John Elway.  McNabb is no Joe Montana.  McNabb isn’t even Jim Kelly who won his four Conference Championship game appearances.

(2) Never Took Responsibility – That’s not completely true.  He took responsibility for the glory.  McNabb thinks he is a great quarterback and the savior of Philadelphia football.  What is true, however, is that he never took responsibility for the shortfalls.  For example, after the loss to the Cardinals, when McNabb started at mid-field in the last minute of the game but was unable to progress the ball, he blamed the defense.  The guy bounced ball off the ground in front of receivers more than a pee-wee football quarterback, yet it was the young receivers who could not hang onto the ball.  It was always, “I could have done better… if I was given more weapons.”  It was always excuses and deflected responsibility.

(3) Ran His Mouth Too Much – McNabb never understood Philadelphia.  Philadelphia wants championships, wins, and get it done attitude.  There are no moral victories.  Guys like Chase Utley who say as little as possible but run out every ground ball, lead the league in hit-by-pitches, and consistently show-up in the big moments are heroes in this city.

McNabb was always clowning around.  Remember before the playoff game with the Cowboys last year?  Him doing that silly dance and then falling completely flat during the game.  All the interviews with the calculated comments and smiles that would make a politician envious.  That’s not Philadelphia.

(4) Played the Race Card – This one is talked about the least, but, on a personal level, may bother me the most.  Too often when McNabb came under criticism, he hinted at race being factor.  At times, when he felt under-appreciated, he explicitly played the race card.  Remember him saying that TO committed a “black on black crime,” because TO said they would have won the Super Bowl with Brett Favre as our quarterback?  Remember him saying that Peyton Manning and Tom Brady are celebrated and viewed positively not because they won Super Bowls and MVPs, but because they are white?

McNabb never got it.  Ironically, Vick, the guy McNabb was responsible for bringing to Philadelphia, is proof of how wrong McNabb was about race being a factor.  This city was adamant about starting Vick, a black quarterback, over Kolb, a white quarterback.  The national media mirrored the sentiments of our city.  Did this city and nation have a sudden awakening since McNabb left last spring?  No.  It’s not that McNabb was never elevated to greatness because he was black, he wasn’t elevated to greatness but he wasn’t great.

So on Sunday, lets not boo McNabb.  Lets not cheer him.  Lets politely clap for him, tip our cap, and let our defense prove yet again just how great he isn’t.

Agree or disagree?  Leave a comment below and let me know!

The Dirty Secret to Parity in the NFL

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The NFL is consistently praised on ESPN and sports talk radio for its ability to create parity.  Parity generates an exciting, watchable product.  With the exception of maybe Oakland and Detroit, most years the fans of each team believe they have a chance to make the playoffs and proceed to the Super Bowl.

Each year, on average, I would say 28 of the 32 team have a legitimate shot at making the playoffs (either via the Wild Card or winning the team’s division).  Of those 28 teams, most have realistic shots appearing in their respective Conference Championship Game, if not the Super Bowl.  No other sport can boast that type of parity.  The NBA, being by far the worst culprit, is dominated by four to six teams every season and which four to six teams rarely changes from year to year.

So what’s the secret to this parity?  How can the NFL achieve what the other leagues cannot?  My answer: attrition.  Attrition resulting from injuries is out of control.

Injuries obviously play a roll in all sports.  It’s always a factor in who wins games and wins championships.  But in the NFL, injuries are relentless.  Football players are pushing the limits of the human body with the mass they accumulate and the increasing violence of their hits.  Every other play someone is popping a tendon/ligament or suffering a concussion.

Here are some of the big names lost in week 1 for a significant amount of time: Kolb (Eagles), Grant (Packers), Jenkins (Jets), Stafford (Lions), and Sanders, (Colts).  The Packers may have just gone from the clear favorite in the NFC to just one of the team’s in the mix with the loss of Grant.  The Eagles, in addition to Kolb, lost both their best offensive linemen and their full-back Weaver, who is an essential part of this team’s offense.  In an instant, a team’s line can be decimated or the franchise quarterback can be lost for a season.  Contenders in the NFL miss the Super Bowl or Playoffs far more often because of injuries than under-performance or poor coaching.  The two teams playing for the Super Bowl may not be the two best teams, but simply the two teams that got lucky and avoided significant injuries.

I expect you will continue to see the NFL institute more rules to protect players, but it will not be easy because protective rules do not necessarily help the NFL’s product either.  For example, you always hear analysts and players complaining about the Brady Rule (cannot hit the QB in the knees) that was the outgrowth of the hit on Tom Brady a few plays into the 2008 season that left the NFL without one of its star players for the entire season.  It’s almost a no-win situation.  Do you cut-down on the violence of the NFL, which is attractive to most of the games fans, or do you try to minimize the risk of injury to the games stars and the foundation of teams?  Only time will tell.  Until then, I recommend investing in your team’s second-string running-back’s jersey.  It’s only a matter of time before he is your starter…

Agree or disagree? Comment below and let me know.