Late yesterday, a three judge panel of the 8th Circuit Court of Appeals, by a 2-1 decision, likely continued the lockout into the training camp season at minimum.

The court ruled in favor of the NFL on the issue of the extension of the stay of the trial court’s ruling enjoining the lockout. While this was not a ruling on the merits of the injunction granted by Judge Nelson, it strongly hinted that the result from the 8th Circuit next month will be in favor of ownership.

This is because one of the elements necessary to grant a stay of the trial court’s ruling is that the moving party make a strong showing ”that he is likely to succeed on the merits”. The majority felt this was the case, which basically means that unless they have a change of heart after further briefing and oral argument, the player’s (and Judge Nelson’s) position will be overturned:

The district court reasoned that this case does not involve or grow out of a labor dispute because the Players no longer are represented by a union.We have considerable doubt about this interpretation of the Act.

I won’t bore you with all the Norris-La Guardia details, but as I said back when the trial court ruled, this basically comes down to whether labor law still applies after the players disclaimed union status (in which case the owners get to delay even if they ultimately don’t prevail on the merits), or whether anti-trust law applies (in which case the owners lose the ability to lockout as an anti-competitive practice).

The issue is where is the line where one crosses from one area into the other. The players have relied on the language at the end of the Supreme Court decision in Brown v. Pro Football, Inc. Now, that Brown decision ruled in favor of the owners on the labor exemption to anti-trust actions, but the specific issue in that case was whether reaching impasse in collective bargaining–and the owners unilaterally imposing their last, best offer–was sufficient to cross that line. It was not. But the following language at the end has been a key factor in how the NFLPA reacted over the last 15 years:

Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e.g., 50 F. 3d, at 1057 (suggesting that exemption lasts until collapse of the collective bargaining relationship, as evidenced by decertification of the union) . . .

Based on that, the players disclaimed the union following the ruling, reformed as union as part of the settlement with ownership, and disclaimed again when the collective bargaining process proved ineffective. The players thought the disclaimer decision that terminated the union was the dividing line. It does not appear the majority will agree. I tend to agree with dissent on that issue, but look forward to seeing how the majority addresses where that line is (if they do address it) because it seems like their interpretation is very broad and perhaps broader than the Supreme Court in Brown.

But that’s worth about 2 cents. The practical result is the lockout will likely carry to preseason, which is what the owners want. Remember, we don’t even have the ruling on the merits, likely to come sometime in early June. Sure, the players can appeal to the 8th Circuit en banc (which means all the judges), but since the overall makeup of the court is at least as conservative as this panel, that is a bump in the road. Then they can appeal to the Supreme Court, which may or may not choose to hear it. That’s not getting done before August rolls around unless the courts all move on a greatly accelerated schedule.

Both sides have taken body blows and delivered them throughout this process. Both have been willing to put their fates in judicial hands rather than compromise. The NFL now has the advantage again (though the Judge Doty ruling on the lockout television money is still pending). I would hope that the NFL and the players will come together and be willing to stop the back and forth trench warfare and realize that he who has the upper hand now may not have it in a month. But I’m not hopeful. I’m expecting more mustard gas and barbed wire.

[photo via Getty]