Hplarrm Posted April 27, 2011 Posted April 27, 2011 Players answer NFL's motion for stay http://sports.espn.go.com/nfl/news/story?id=6436166 The dueling motions go back and forth. My guess is that Nelson has timed her finding such that it comes at the same time the NFL is going into its usual press overdrive mode with the draft. My sense is that the effect of this will be that normal folk (I do not consider us Bills addicts normal) will begin paying more attention to pro football than they normally do. These folks will be reintroduced to the labor dispute in the context right now the regular season appears to be on track because the players just won some court decision, but the owners are filing appeals to stop the season. Many or most folks will not really pay attention to the details offered by either side. However, one prob for the owners is that they will be reintroduced to the NFL with the message that the owners are losing in court and are taking action for whatever reason to delay the season. Not good for the owners to the extent their is a media battle to claim who is right and who is wrong. Doty seemed to play the same timing game when he released his opinion as the deadline for declaration of declaring an impasse approached, The team owners are certainly trying to sell the story that these negative decisions were expected by the owners and their strategy was designed taking into account the likelihood of these pro-NFLPA rulings. "Keep moving, keep moving nothing to see here" However, this comes off as simply whistling as one goes by the graveyard. The owners are losing on this one thanks to some nice forum shopping by the NFLPA.
K Gun Special Posted April 27, 2011 Posted April 27, 2011 The dueling motions go back and forth. My guess is that Nelson has timed her finding such that it comes at the same time the NFL is going into its usual press overdrive mode with the draft. My sense is that the effect of this will be that normal folk (I do not consider us Bills addicts normal) will begin paying more attention to pro football than they normally do. These folks will be reintroduced to the labor dispute in the context right now the regular season appears to be on track because the players just won some court decision, but the owners are filing appeals to stop the season. Many or most folks will not really pay attention to the details offered by either side. However, one prob for the owners is that they will be reintroduced to the NFL with the message that the owners are losing in court and are taking action for whatever reason to delay the season. Not good for the owners to the extent their is a media battle to claim who is right and who is wrong. Doty seemed to play the same timing game when he released his opinion as the deadline for declaration of declaring an impasse approached, The team owners are certainly trying to sell the story that these negative decisions were expected by the owners and their strategy was designed taking into account the likelihood of these pro-NFLPA rulings. "Keep moving, keep moving nothing to see here" However, this comes off as simply whistling as one goes by the graveyard. The owners are losing on this one thanks to some nice forum shopping by the NFLPA. THe NFL has been losing in Federal court for years. They got spanked by the Sup Ct dominated by pro business conservatives. Sometimes a ruling is really on the law. Have you seen any legal scholars blasting Nelson's ruling?
Mr. WEO Posted April 27, 2011 Posted April 27, 2011 I do not know him so I really do not know. However, four things which I would guess are inherently Brady which might impact his decisions: 1. He is a leader who loves to lead. Perhaps leading his fellow players to an even greater position of control has some appeal to him, 2. He is proud and competitive man and the NFL owners have directly challenged all the players and responding in a manner that takes them on pretty directly would seem to be consistent with the character he has shown. 3. Having the respect of his teammates and leading them into battle is what he has done successfully and well throughout his career. Perhaps he has just learned to fake sincerity well and he does not care about his fellow players. Yet, I doubt that and again this would speak to him playing a lead role in a master strategy to take on the owners. 4. I have no idea whether he feels he has enough money (or even if it is possible to have enough). However, my sense is he likely has made a chunk that taking on the league may be a Dom Quixote like exercise he may lose but actually it is likely a relatively low risk move for him to make with a potential of large fiscal benefits. Perhaps you have a read on him and the et al. that they will simply cave in the face of a pretty direct attack from the owners. Perhaps bending over and saying thank you sir can I have another is what you would do so you assume it is the logical thing for anyone to do. However, I am influenced strongly by the fact that the NFLPA has been on a roll since the late 80s. They made an unorthodox move of threatening to decertify after the team owners simply kick the butt of the old AFL-CIO union tactics led by Ed Garvey. This maneuver grasped victory from the jaws of defeat and produced the CBA which essentially forced recognition of the NFLPA as a partner. Led by Gene Upshaw and a talented tenth of his fellow players (most of whom are steroid and drug infused lemmings but this actually makes it easier for the talented tenth to lead them) led the NFLPA to negotiate the last CBA which he dictated the player portion of the total revenues needed to start with a 6. Indeed, though certainly part of the final calculation was fun with #s, but by most estimates the players do take in les than 60% but still comfortably a majority of the total take, If I am Brady, et al. the question to me is why should I try to buffalo the team owners again, but actually the question is why not and how am I gonna do it. In the end, it seems quite clear to me that the athletes make more money any time there is actually competition rather than collusion between the owners. If I am Brady et al. to reach my goal of making the most money possible I am interested in not killing the NFL but defanging the owners quite a bit and introducing a NewFL which through competition allows the players association to represent players in a new league and the NFL. My thinking is that the key thing here is to be a man and I am gonna make more bucks either way. So my question to you is why not take on the NFL rather than caving to them. If you agree this is their default reaction then how do you take on the owners? Actually, the players took the beating in the "late 80s". Their strike was a disaster and the union had their antitrust suit tossed. Then they decertified in '89. The league and the players came together, without the union, came to agreemment in which the owners allowed FA, but the players had to accept the salary cap. You still haven't told us why Brady would lead the "NewFL", other than to "attack" the owners. And what happens to your goofy "NewFL" when after the new CBA is signed? i am curious, why don't the players consider approaching a venture capitalist with a couple billion dollars, at least, and see if he would be interested in lending his financial support to a new league where fans own the teams like in green bay. the players would shape the league's structure in the manner that they are attempting to shape the nfl's structure during this lockout. the venture capitalist would be the financial hub at the beginning: fans would buy shares of stock in their city's team from him. once the league is on stable footing the league originator takes his pre-determined cut of present and future profits and fades away. players win. fans win. owners lose. This "new league" stuff is funny. Where does the money come form to pay back any "venture capitalist"? There will be no TV money so how can a new league exist. There is no market for it. There is a "new league" already well established. It's the UFL and already is populated by former NFL players. There is absolutley nothing preventing any NFL player from leaving the league and joining the UFL. Why don't they?
Orton's Arm Posted April 27, 2011 Posted April 27, 2011 (edited) i am curious, why don't the players consider approaching a venture capitalist with a couple billion dollars, at least, and see if he would be interested in lending his financial support to a new league where fans own the teams like in green bay. the players would shape the league's structure in the manner that they are attempting to shape the nfl's structure during this lockout. the venture capitalist would be the financial hub at the beginning: fans would buy shares of stock in their city's team from him. once the league is on stable footing the league originator takes his pre-determined cut of present and future profits and fades away. players win. fans win. owners lose. "Players win. fans win. owners lose." The problem with that equation is that I don't necessarily see "venture capitalist wins" in it. I'll grant that if everything goes well, the venture capitalist probably would come away with significantly more money than his initial investment. But there are considerable risks fraught with trying to build a football league that would not merely compete with, but actually replace, the NFL. I have heard it said that for every ten ventures a venture capitalist funds, eight will fail, one will be a moderate success, and one will be a big success. Therefore, venture capitalists want to know that any given new venture they undertake will have at least the potential to pay for ten failed ventures. The two questions we need to ask are: 1) would $2 billion be enough to start a football league that's good enough to compete with the NFL, and 2) could the venture capitalist reasonably expect to turn that $2 billion into $20 billion if the league succeeded? To address the first question, the NFL receives over $9 billion in revenue each year. $1 billion is taken off the top, and the players can receive up to 60% of the rest. That is about $4.8 billion in player salaries each year; though the actual sum is a little less due to some teams not spending up to the salary cap. If this new league wanted to attract all the NFL's players, it would presumably have to similarly spend at least $4.8 billion on player salary costs alone. There are also stadium costs: this new league would not own any stadiums of its own. It would take several years (and a lot of money) to build the stadiums it would require. At least initially, the new league would have to negotiate deals with existing owners of stadiums. The NFL would, of course, put pressure on the NCAA to avoid letting this new, competing league use their stadiums. There would also be considerable advertising costs, promotion costs, etc. Not to mention all the non-player employees who'd need to be hired to make this work. $2 billion wouldn't be nearly enough to cover the league's first year costs, at least not if you wanted an NFL-scale league. If this league had, say, $10 billion set aside to cover these costs, it could probably convince both players and television networks it was here to stay. This would cause NFL players to leave for this new league, and would also help the new league obtain a critical television deal. These things wouldn't happen if the league was under-funded. An NFL player who was reasonably happy with his contract probably wouldn't want to jump leagues, even for a little more money, if he felt the new league would collapse in a couple of years. Now that you've overcome the aforementioned hurdles, you now have to contend with the biggest hurdle of all. NFL fans have decades of emotional and financial investments in their existing teams; and no connection at all to this new league's expansion teams. How many Green Bay Packers fans do you think would willingly miss Packers games to watch this league's Green Bay team instead? If the Bills were to make it to the Super Bowl, would you skip watching that Super Bowl to see the new league's Buffalo team play a championship game instead? How much connection did you feel to the Buffalo Destroyers back when the Buffalo Destroyers existed? NFL fans largely root for the uniforms, and the NFL owns the rights to those uniforms. If the new league stuck around long enough, and gained enough attention for itself, even the problem described in the above paragraph could be overcome. But now--assuming all this has worked--it would be time for the venture capitalists to receive their reimbursement. Your idea seems to be to have this league's players receive even more money than the NFL is willing to pay its players. One could imagine the NFL raising its salary cap to allow itself to outbid this new league for player services. The problem is that whatever money gets absorbed by the players--and they'll be absorbing a lot!--will be unavailable to the venture capitalists. The prices the VCs get for selling their shares will be largely determined by the expected future profitability of the franchises. The venture capitalists would be taking a ton of risks here, which means they're going to want a ton of compensation if those risks are successfully overcome. I just don't see them getting that kind of compensation. The NFL players are already being very generously compensated. From a financial standpoint, it does not make sense to create a new league with a goal of further increasing that compensation. Edited April 27, 2011 by Edwards' Arm
papazoid Posted April 27, 2011 Author Posted April 27, 2011 i am curious, why don't the players consider approaching a venture capitalist with a couple billion dollars, at least, and see if he would be interested in lending his financial support to a new league where fans own the teams like in green bay. the players would shape the league's structure in the manner that they are attempting to shape the nfl's structure during this lockout. the venture capitalist would be the financial hub at the beginning: fans would buy shares of stock in their city's team from him. once the league is on stable footing the league originator takes his pre-determined cut of present and future profits and fades away. players win. fans win. owners lose. this may be of interest to you.... USFL v. NFL: The Challenge Beyond the Courtroom: This is a story of a professional football league that between 1983 and 1986 captured the attention of millions of Americans – both on the field and in the courtroom. Initially conceived as a spring time sport, the founders sought to draw in fans with a high level of competition played on national television stage. In its first two years, the league was able to produce TV ratings and game attendance that nearly rivaled those of the more established National Football League. During this time, the success of the league was spurred on by superstar players such as quarterbacks Jim Kelly and Steve Young, running back Herschel Walker, guard Nate Newton, and defensive end Reggie White. Games were played in front of capacity crowds at stadiums such as Soldier Field in Chicago, the New Orleans Superdome, and Giants Stadium in New Jersey. Prior to the 1985 season, the league was offered nearly $250 million in cable and network TV contracts. Despite all of this apparent success, within 6 months the league would be in financial ruin and most of its players and owners would soon be forgotten. This is a story about the difficulties of competing against an established professional football league and the legal battled that ensued. This is the story of the United States Football League. http://www.law.berkeley.edu/sugarman/Sports_Stories_USFL_v_NFL__-_Boris_Kogan.pdf
K Gun Special Posted April 27, 2011 Posted April 27, 2011 I do not have time to read all of the posts in this string so I do not know if anyone else mentioned this. I read yesterday that the judge denied the NFL's request for an evidentiary hearing. Accordingly, the hearing back on April 6th or whenever it was did not include any testimony. In other words, she heard argument from counsel and made her decision on the law without having to weigh any testimony. Why is that important you ask? It is important with regard to how much deference (if at all) the appellate courts (8th Circuit and Supreme Court) have to give her ruling). If all she did was make a determination as to the law, the appellate courts can review the ruling de novo -- they do not have to give her any deference at all. This is very important. As I understand it, one of the next big disputes between the NFL and the NFLPA* is what will be the standard of review. If the 8th Circuit agrees that the standard of review is de novo, it is free to do whatever it wants. In this regard, the vast majority of the 8th Circuit judges are republican appointees (all but three if I recall correctly). In any event, it gets a bit complicated, but I like the NFL's odds on appeal. Read the article on SI.com written by the lawyer specializing in sports related law. http://m.si.com/news/wr/wr/detail/3662306/2;jsessionid=8898BD9ABB166E61BEAEE9E49C69AA36.cnnsi1 ""the Eight Circuit will review Judge Nelson's order under the deferential "abuse of discretion" standard.""" The review standard is abuse of discretion not de novo. Rule 65 doesnt require the judge to make a separate written ruling on the facts nor does it require witness testimony. Even if what you say is true, and there was a requirement for testimony, the appeals court would remand the case for testimony and Nelson would likely rule the same anyway.
Peter Posted April 27, 2011 Posted April 27, 2011 Read the article on SI.com written by the lawyer specializing in sports related law. http://m.si.com/news...9C69AA36.cnnsi1 ""the Eight Circuit will review Judge Nelson's order under the deferential "abuse of discretion" standard.""" The review standard is abuse of discretion not de novo. Rule 65 doesnt require the judge to make a separate written ruling on the facts nor does it require witness testimony. Even if what you say is true, and there was a requirement for testimony, the appeals court would remand the case for testimony and Nelson would likely rule the same anyway. The question is whether she made any factual determinations. If not, it is a de novo review. If she did, it is abuse of discretion. This is an issue where the NFL and NFLPA* will cross swords. We will find out what standard of review will be employed when the 8th Circuit issues its opinion.
K Gun Special Posted April 27, 2011 Posted April 27, 2011 The question is whether she made any factual determinations. If not, it is a de novo review. If she did, it is abuse of discretion. This is an issue where the NFL and NFLPA* will cross swords. We will find out what standard of review will be employed when the 8th Circuit issues its opinion. No its not. I just showed you a lawyers in the know take on it. From another legal source : """One hurdle for the owners is that preliminary injunctions are reviewed very deferentially. Just a few months ago, the Eighth Circuit wrote, “We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court.” . . . "An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.” Rogers Group, Inc. v. City of Fayetteville, 629 F.3d 784, 787 (8th Cir. 2010) (citation omitted). What does this mean as a practical matter? "Abuse of discretion" is a very hard standard to meet. To be reversed, Judge Nelson's decision would have to be so obviously wrong ("clearly erroneous") that it is implausible. Generally, appeals courts do not like to tell district courts that they have blatantly screwed up. This makes the climb that much steeper for the owners."""" SO yea the Eight Circuit is going to give a lot of weight to Nelson's ruling. Its not simply whether or not she made factual determinations.
Mr. WEO Posted April 27, 2011 Posted April 27, 2011 Would the lack of testimony qualify as leading to "erroneous legal conclusions"?
CosmicBills Posted April 27, 2011 Posted April 27, 2011 Actually, the league is arguing that she did not have jurisdition to lift the blackout due to the pending decision on league's complaint filed with the NLRB regarding the decertification of the union. Once again you make a post that offers nothing but restating what someone already said but yet find a way to argue against it. Do you ever read what you post before you post it? Please try offering something of substance to the conversation.
K Gun Special Posted April 27, 2011 Posted April 27, 2011 Would the lack of testimony qualify as leading to "erroneous legal conclusions"? Its a relatively new area of the law. The Eight Circuit is generally friendly to businesses but they must still abide by their own precedents. As stated in my previous post, it is a high burden to have a PI overturned. The lack of testimony is not a big factor. Its really about the irreparable harm issue. Did the players show the harm would be so? She clearly thought so and the 8th would have to hold that was an abuse of discretion. I think its unlikely the 8th overturns bc 1) the law and (2) it forces the sides to negotiate. No side really wants the wild west (yes the players have made this argument somewhat, but they have to) so they will be forced to create a new CBA. I know some of you are very pro owners or pro PA but you need to view this situation from the lens of the Court. The quicker the Court can put the ball back into the parties' hands the better for them.
Peter Posted April 27, 2011 Posted April 27, 2011 (edited) No its not. I just showed you a lawyers in the know take on it. From another legal source : """One hurdle for the owners is that preliminary injunctions are reviewed very deferentially. Just a few months ago, the Eighth Circuit wrote, "We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court." . . . "An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions." Rogers Group, Inc. v. City of Fayetteville, 629 F.3d 784, 787 (8th Cir. 2010) (citation omitted). What does this mean as a practical matter? "Abuse of discretion" is a very hard standard to meet. To be reversed, Judge Nelson's decision would have to be so obviously wrong ("clearly erroneous") that it is implausible. Generally, appeals courts do not like to tell district courts that they have blatantly screwed up. This makes the climb that much steeper for the owners."""" Supreme Court: Pierce v. Underwood, 487 U.S. 552, 557-58 (1988) " We first consider whether the Court of Appeals applied the correct standard when reviewing the District Court's determination that the Secretary's position was not substantially justified. For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo ), questions of fact (reviewable for clear error), and matters of discretion (reviewable for "abuse of discretion")." First Circuit last month: Milward v. Acuity Specialty Products Group, Inc., 2011 WL 982385, at *1 (1st Cir. March 22, 2011) " The appellate standard of review for Rule 702 rulings is abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). "This standard is not monolithic: within it, embedded findings of fact are reviewed for clear error, questions of law are reviewed de novo, and judgment calls are subjected to classic abuse-of-discretion review." Ungar v. Palestine Liberation Org., 599 F.3d 79, 83 (1st Cir.2010)" 8th Circuit Halbach v. Great-Wesst Life & Annuity Incs. Co., 561 F.3d 872, 877 n.3 (8th Cir. 2009) "We note for clarification that we are applying a de novo standard of review because we are reviewing whether the affected welfare benefits were vested or not, an issue of contract; a question of law." Edited April 27, 2011 by Peter
papazoid Posted April 28, 2011 Author Posted April 28, 2011 Nelson denies NFL request for stay on ruling: http://profootballtalk.nbcsports.com/2011/04/27/nelson-denies-nfl-request-for-stay-on-ruling/ NFL’s next move will be to seek a stay in appeals court: http://profootballtalk.nbcsports.com/2011/04/27/nfls-next-move-will-be-to-seek-a-stay-in-appeals-court/
K Gun Special Posted April 28, 2011 Posted April 28, 2011 Supreme Court: Pierce v. Underwood, 487 U.S. 552, 557-58 (1988) " We first consider whether the Court of Appeals applied the correct standard when reviewing the District Court's determination that the Secretary's position was not substantially justified. For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo ), questions of fact (reviewable for clear error), and matters of discretion (reviewable for "abuse of discretion")." First Circuit last month: Milward v. Acuity Specialty Products Group, Inc., 2011 WL 982385, at *1 (1st Cir. March 22, 2011) " The appellate standard of review for Rule 702 rulings is abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). "This standard is not monolithic: within it, embedded findings of fact are reviewed for clear error, questions of law are reviewed de novo, and judgment calls are subjected to classic abuse-of-discretion review." Ungar v. Palestine Liberation Org., 599 F.3d 79, 83 (1st Cir.2010)" 8th Circuit Halbach v. Great-Wesst Life & Annuity Incs. Co., 561 F.3d 872, 877 n.3 (8th Cir. 2009) "We note for clarification that we are applying a de novo standard of review because we are reviewing whether the affected welfare benefits were vested or not, an issue of contract; a question of law." Peter, did you see where i cited the 8th circuit reviewing a preliminary injunction issue?? Thats controlling, not the case law you cited dealing with non preliminary injunction issues. The article written by a sports lawyer says the same thing. Please dont cite and bold cases dealing with other issues..... welfare benefits??? a review of a preliminary injunction as shown by the 8th circuit last month says Abuse of Discretion.
papazoid Posted April 28, 2011 Author Posted April 28, 2011 All eyes on the 8th Circuit Adam Schefter of ESPN points out that the front page of the Eighth Circuit’s website already has been reconfigured to embrace its brand-new case. “The court has docketed the National Football League’s appeal from Judge Susan Richard Nelson’s April 25, 2011 order enjoining the lockout,” the website states. http://profootballta...he-8th-circuit/
Peter Posted April 28, 2011 Posted April 28, 2011 Peter, did you see where i cited the 8th circuit reviewing a preliminary injunction issue?? Thats controlling, not the case law you cited dealing with non preliminary injunction issues. The article written by a sports lawyer says the same thing. Please dont cite and bold cases dealing with other issues..... welfare benefits??? a review of a preliminary injunction as shown by the 8th circuit last month says Abuse of Discretion. You are missing the point again. The issue is whether the 8th Circuit views her decision of one of law, fact, or mixed question of law and fact -- regardless of whether it is in the context of an injunction or anything else. Appellate courts also can review different aspects of the lower court's ruling with different standards of review depending on the issue being reviewed. It is not as simple as you suggest. Second Circuit Donovan v. Bierwirth, 680 F.2d 263, 269-70 (2d Cir. 1982) "Despite oft repeated statements that the issuance of a preliminary injunction rests in the discretion of the trial judge whose decisions will be reversed only for “abuse”, a court of appeals must reverse if the district court has proceeded on the basis of an erroneous view of the applicable law, Ring v. Spina, 148 F.2d 647, 650 (2 Cir. 1945); Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2 Cir. 1961); Douglas v. Beneficial Finance Co., 469 F.2d 453, 454 (9 Cir. 1972), or of the standards governing the granting or denial of interlocutory relief, Exxon Corp. v. New York, 480 F.2d 460, 464 (2 Cir. 1973); Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2 Cir. 1966). A line of cases in this circuit, apparently having its source in Dopp v. Franklin National Bank, 461 F.2d 873, 878-79 (1972), has gone beyond this and held that, even when the district court has not thus erred, where that court did not hear live witnesses, whose credibility played an essential part in its determination, and the case was decided on the basis of pleadings, affidavits and depositions, which the court of appeals is in as good a position as the district judge to read and interpret, the appellate court is not limited to reversal for abuse of discretion. The description of how far the limit is transcended has varied-the appellate court has “broader discretion on review”, Dopp, supra, 461 F.2d at 879;it is “able to exercise its discretion and to review the papers de novo ”, San Filippo v. United Brotherhood of Carpenters & Joiners, 525 F.2d 508, 511 (2 Cir. 1975); it “is not limited to reviewing the district court's exercise of discretion”, Forts v. Ward, 566 F.2d 849, 852 n.8 (2 Cir. 1977); it may exercise “full review”, Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2 Cir. 1979); *270 <a href="http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1980147460&referenceposition=701&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=24&vr=2.0&pbc=F4F4F55D&tc=-1&ordoc=1982123207" target="_top" style="color: rgb(0, 0, 255); ">Crouse-Hinds Co. v. Internorth, Inc., 634 F.2d 690, 701 n.19 (2 Cir. 1980); and it “may consider the record de novo”, at least when mandatory relief changing the status quo has been granted, Doe v. New York University, 666 F.2d 761, 765 (2 Cir. 1981). Two recent opinions have suggested that the use of the power to go beyond the “abuse of discretion” standard is itself discretionary, New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 750-53 (2 Cir. 1977); Vidal Sasson, Inc. v. Bristol-Myers Co., 661 F.2d 272, 276 n.9 (2 Cir. 1981), with the former suggesting some guidelines as to how the discretion should be exercised. Factors favorable to the exercise of appellate discretion to engage in full review are that interlocutory relief has been granted rather than denied, lack of specificity in the findings of the trial court, and “defects, apart from the findings themselves, in the district court proceedings, which this court apparently believed justified a broader review of the lower court's proceedings....” Eighth Circuit Entertainment Software Ass'n v. Swanson, 519 F.3d 768, 771 (8th Cir. 2008) "We normally review for abuse of discretion a district court's grant of a permanent injunction.Qwest Corp. v. Scott, 380 F.3d 367, 370 (8th Cir.2004) (citing Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir.2003)). Where, as here, the “determinative question is purely legal, our review is more accurately characterized as de novo.” Id.; see also Ways v. City of Lincoln, Neb., 274 F.3d 514, 518 (8th Cir.2001)"
papazoid Posted April 29, 2011 Author Posted April 29, 2011 Report: Owners get stay of injunction, lockout back on ESPN is reporting that the U.S. Court of Appeals for the Eighth Circuit has granted a temporary stay of the injunction and reinstated the lockout, meaning players will now be told to hit the road, and doors to team facilities are being locked this afternoon. http://profootballtalk.nbcsports.com/2011/04/29/report-owners-get-stay-of-injunction-lockout-back-on/
Chandler#81 Posted April 29, 2011 Posted April 29, 2011 Report: Owners get stay of injunction, lockout back on ESPN is reporting that the U.S. Court of Appeals for the Eighth Circuit has granted a temporary stay of the injunction and reinstated the lockout, meaning players will now be told to hit the road, and doors to team facilities are being locked this afternoon. http://profootballta...ockout-back-on/ Ridiculous!
papazoid Posted April 29, 2011 Author Posted April 29, 2011 RETRACTION..... Temporary stay expected, ESPN retracts report that stay was granted http://profootballtalk.nbcsports.com/2011/04/29/temporary-stay-expected-espn-retracts-report-that-stay-was-granted/
K Gun Special Posted April 29, 2011 Posted April 29, 2011 You are missing the point again. The issue is whether the 8th Circuit views her decision of one of law, fact, or mixed question of law and fact -- regardless of whether it is in the context of an injunction or anything else. Appellate courts also can review different aspects of the lower court's ruling with different standards of review depending on the issue being reviewed. It is not as simple as you suggest. Second Circuit Donovan v. Bierwirth, 680 F.2d 263, 269-70 (2d Cir. 1982) "Despite oft repeated statements that the issuance of a preliminary injunction rests in the discretion of the trial judge whose decisions will be reversed only for “abuse”, a court of appeals must reverse if the district court has proceeded on the basis of an erroneous view of the applicable law, Ring v. Spina, 148 F.2d 647, 650 (2 Cir. 1945); Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2 Cir. 1961); Douglas v. Beneficial Finance Co., 469 F.2d 453, 454 (9 Cir. 1972), or of the standards governing the granting or denial of interlocutory relief, Exxon Corp. v. New York, 480 F.2d 460, 464 (2 Cir. 1973); Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2 Cir. 1966). A line of cases in this circuit, apparently having its source in Dopp v. Franklin National Bank, 461 F.2d 873, 878-79 (1972), has gone beyond this and held that, even when the district court has not thus erred, where that court did not hear live witnesses, whose credibility played an essential part in its determination, and the case was decided on the basis of pleadings, affidavits and depositions, which the court of appeals is in as good a position as the district judge to read and interpret, the appellate court is not limited to reversal for abuse of discretion. The description of how far the limit is transcended has varied-the appellate court has “broader discretion on review”, Dopp, supra, 461 F.2d at 879;it is “able to exercise its discretion and to review the papers de novo ”, San Filippo v. United Brotherhood of Carpenters & Joiners, 525 F.2d 508, 511 (2 Cir. 1975); it “is not limited to reviewing the district court's exercise of discretion”, Forts v. Ward, 566 F.2d 849, 852 n.8 (2 Cir. 1977); it may exercise “full review”, Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2 Cir. 1979); *270 <a href="http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1980147460&referenceposition=701&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=24&vr=2.0&pbc=F4F4F55D&tc=-1&ordoc=1982123207" target="_top" style="color: rgb(0, 0, 255); ">Crouse-Hinds Co. v. Internorth, Inc., 634 F.2d 690, 701 n.19 (2 Cir. 1980); and it “may consider the record de novo”, at least when mandatory relief changing the status quo has been granted, Doe v. New York University, 666 F.2d 761, 765 (2 Cir. 1981). Two recent opinions have suggested that the use of the power to go beyond the “abuse of discretion” standard is itself discretionary, New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 750-53 (2 Cir. 1977); Vidal Sasson, Inc. v. Bristol-Myers Co., 661 F.2d 272, 276 n.9 (2 Cir. 1981), with the former suggesting some guidelines as to how the discretion should be exercised. Factors favorable to the exercise of appellate discretion to engage in full review are that interlocutory relief has been granted rather than denied, lack of specificity in the findings of the trial court, and “defects, apart from the findings themselves, in the district court proceedings, which this court apparently believed justified a broader review of the lower court's proceedings....” Eighth Circuit Entertainment Software Ass'n v. Swanson, 519 F.3d 768, 771 (8th Cir. 2008) "We normally review for abuse of discretion a district court's grant of a permanent injunction.Qwest Corp. v. Scott, 380 F.3d 367, 370 (8th Cir.2004) (citing Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir.2003)). Where, as here, the “determinative question is purely legal, our review is more accurately characterized as de novo.” Id.; see also Ways v. City of Lincoln, Neb., 274 F.3d 514, 518 (8th Cir.2001)" Well 4 months ago the 8th circuit held re preliminary injunction not permanent " “We review the district court's grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the district court.” Vonage Holdings Corp. v. Neb. Pub. Serv. Comm'n, 564 F.3d 900, 904 (8th Cir.2009). “An abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions."" Rogers, 629 f3d784 Based on Rogers it doesnt matter if there was an evidentiary determination or not. Its whether her conclusions of law or fact were clearly erroneous. Abuse of discretion.
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