The former U.S. Solicitor General, who is representing players in a class-action lawsuit against the league, said NFL owners precipitated the labor fight in 2008 by walking away from a deal signed two years earlier.
“What they did, in short, is exercise monopoly power in an oppressive, predatory way,” he said yesterday in a telephone interview. “I think that’s an injustice that’s got to be remedied.”
Olson is representing players led by Super Bowl-winning quarterbacks Tom Brady, Peyton Manning and Drew Brees, who sued the league in March after the NFL Players Association abandoned its role as a union in collective bargaining and talks broke down on how to divide about $9 billion in annual revenue, the most of any sports league.
NFL spokesman Greg Aiello declined to respond directly to Olson’s comments, deferring to arguments made by league lawyers in a May 2 filing with a federal appeals court.
“The threshold question here is one of jurisdiction, and the district court lacked it,” NFL attorneys told the appeals court, arguing that the validity of the union’s disclaimer must be decided by the National Labor Relations Board.
“Congress long ago determined that, to achieve and secure labor peace, federal courts may not interfere -- on either side -- in cases involving or growing out of a labor dispute,” according to the league’s court filing.
U.S. District Judge Susan Richard Nelson in St. Paul, Minnesota, ordered owners to end their six-week lockout of players in an April 25 decision. The NFL appealed that decision to a St. Louis-based federal appeals court, where a three-judge panel on April 29 issued a provisional order allowing owners to reinstate the shutdown while judges decide if they should put Nelson’s ruling on hold pending their review of the dispute.
The U.S. Court of Appeals in St. Louis will hear arguments from players’ and owners’ attorneys on June 3.
Olson said he thinks the judges are analyzing Nelson’s ruling and won’t wait until June 3 before reaching a decision on a longer stay.
“I would think that what they are doing now is carefully analyzing what the district court very carefully analyzed -- the irreparable injury which is unquestionably being suffered by the players and the relatively unquestioned, unchallenged fact” that the owners are violating antitrust laws, he said.
Olson said he doubted the appeals court will agree with the owners’ claim that the players’ disavowal of their union is “a sham.” Because of that, the NFL has argued, Nelson has no jurisdiction over the lockout issue and it belongs before the NLRB.
“It’s laughable,” said Olson, a partner in the Washington office of Gibson Dunn & Crutcher LLP. “They no longer have any of the rights they would have as a union and the judge very thoroughly dismantled that argument.”
Olson served as solicitor general, the government’s top appellate advocate, under President George W. Bush. His successor, Paul D. Clement, is representing the NFL as an attorney with Washington’s Bancroft PLLC.
Owners bear responsibility for the shutdown of the sport, which came about a month after its Super Bowl championship became the most-watched program in U.S. television history, Olson said.
“It’s like they put a cyclone fence up and they put chains around the doors and they locked the players out from performing their profession,” he said.
The case is Brady v. NFL, 0:11-cv-00639, U.S. District Court, District of Minnesota (St. Paul). The appeal is Brady v. National Football League, 11-1898, 8th U.S. Circuit Court of Appeals (St. Louis).
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