MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before this Court in these consolidated actions on the motions for a preliminary injunction sought by Plaintiff Tom Brady, et al. (the "Brady Plaintiffs") as well as by Plaintiff Carl Eller, et al. (the "Eller Plaintiffs") (Doc. Nos. 2 & 58).1 For the reasons stated below, this Court grants the Brady Plaintiffs' motion. This ruling renders moot the Eller Plaintiffs' motion, which seeks identical relief, that is, an injunction lifting the "lockout." See infra notes 52 & 57.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Brady Plaintiffs are nine professional football players and one prospective professional football player who have been or seek to be employed by Defendants, the National Football League ("NFL") and the 32 separately-owned NFL teams (collectively, "the NFL" or "the League"). The Brady Plaintiffs filed this lawsuit on behalf of themselves and similarly situated players, alleging antitrust violations and breach of contract based on Defendants' actions, inter alia, in imposing a "lockout" or "group boycott" of the Players. (Doc. No. 1 (Complaint) ¶¶ 116-60.) Plaintiffs seek a declaratory judgment, injunctive relief, and damages. (Id. at 48-50 ("Prayer for Relief").)

The dispute between the NFL and the Players has a long and complex history. Powell v. NFL, 930 F.2d 1293, 1303 (8th Cir.1989). The present case dates in some respects back to the dispute resolved in Mackey v. National Football League, 543 F.2d 606 (8th Cir.1976). In Mackey, several players challenged the so-called "Rozelle Rule" as a violation of Section 1 of the Sherman Act. 543 F.2d at 609. In 1963, the League unilaterally adopted the Rozelle Rule, which governed free agency, largely by restricting it. Id. at 610-11. The League defended the Rule as protected from antitrust scrutiny under the nonstatutory labor exemption, which insulates employers and management from antitrust claims where an employer is participating in collective bargaining with a union that represents its employees. Id. at 611-12.

After a lengthy bench trial, the district court ruled that the Rozelle Rule was both a per se violation of Section 1 as well as an invalid restraint of trade under the Rule of Reason. Mackey v. NFL, 407 F.Supp. 1000 (D.Minn.1975).2 The Eighth Circuit affirmed based on the Rule of Reason. 543 F.2d at 620-21. In assessing the nonstatutory labor exemption, the Eighth Circuit found that the proper accommodation between the competing interests of the labor laws (which seek to facilitate collective action by employees) and the antitrust statutes (which seek to promote competition and limit collective action) required, in order for the exemption to apply, (1) that the restraint "primarily affects only the parties to the collective bargaining relationship," (2) that the agreement subject to the protection of the exemption "concerns a mandatory subject of collective bargaining," and (3) that the agreement "is the product of bona fide arm's-length bargaining." Id. at 614. Although the particular agreement at issue there—the Rozelle Rule—satisfied the first two prongs of the test, the court found it was not the product of bona fide arm's-length bargaining. Id. at 615-16. The League later settled the class action for $13 million in damages.

"The players' initial antitrust victory was short lived, for following the ruling in Mackey the owners used their leverage in collective bargaining to reestablish the status quo, exchanging the Rozelle Rule for similar collectively bargained provisions that were impervious to antitrust attack." White v. NFL, 585 F.3d 1129, 1134 (8th Cir.2009). The next major battle occurred in the various Powell/McNeil cases. In 1977, the League and the Players entered into a collective bargaining agreement governing free agency. The terms were modified in a successor agreement entered into in 1982. That agreement expired in August 1987. In September 1987, after negotiations for another agreement proved unsuccessful, the Players initiated a strike over veteran free agency and other issues.

After the strike failed to produce a new agreement, the Players filed an action in October 1987, contending that the League's adherence to the expired 1982 agreement violated the antitrust laws. In January 1988, the district court held that after the expiration of a bargaining agreement, the labor exemption from the antitrust laws terminates with respect to a mandatory subject of bargaining when employers and a union reach a bargaining impasse as to the contested issue. Powell v. Nat'l Football League, 678 F.Supp. 777, 788 (D.Minn.1988).

On November 1, 1989, the Eighth Circuit rejected the district court's 1988 ruling that impasse lifted the protection of the exemption from the antitrust laws, noting that in certain circumstances "the nonstatutory labor exemption may be invoked even after a collective bargaining agreement has expired." Powell, 930 F.2d at 1301. The court concluded that the parties had "not yet reached the point in negotiations where it would be appropriate to permit an action under the Sherman Act," explaining that "even after impasse" both a union and management retain certain rights and remain under certain legal obligations. Id. at 1302. The court held that, on the facts presented there, antitrust claims were not appropriate in light of the general labor policy that favors "negotiated settlements rather than intervention by the courts." Id. at 1303.

Moreover, the court declined to "pick a termination point for the labor exemption." Id. But, the court noted that "[i]mportantly, this does not entail that once a union and management enter into collective bargaining, management is forever exempt from the antitrust laws." Id. Thus the Eighth Circuit expressly declined to "hold that restraints on player services can never offend the Sherman Act." Id. The court then also noted that "[t]he League concedes that the Sherman Act could be found applicable, depending on the circumstances," in certain situations including (as most relevant here) "if the affected employees ceased to be represented by a certified union." Id. at 1303 n.12.3

In the interim, the district court, having concluded that the impasse triggered the application of the antitrust laws, proceeded to hold, in July 1988, that the "presence of a bargaining impasse" nevertheless does not signify "the end of a `labor dispute'" so as to preclude the application of the Norris-LaGuardia Act's prohibition against injunctions in cases "`involving or growing out of labor disputes.'" 690 F.Supp. 812, 814-15 (D.Minn.1988) ("Indeed, a bargaining impasse is by definition a `labor dispute.'"). The court noted that "where the bargaining relationship and the collective bargaining process remains intact, a controversy regarding terms or conditions of employment constitutes a labor dispute." Id. at 815.4

In the face of the Eighth Circuit's November 1989 ruling that a negotiating impasse did not permit the Players to pursue antitrust claims—and recognizing that the court did not identify any particular point when they could seek such relief—the Players faced a difficult choice between (1) continuing to engage in a collective bargaining process that had failed to accord them any true negotiating power, see Brown v. NFL, 50 F.3d 1041, 1057 (D.C.Cir.1995) ("We recognize that the history of bargaining between the NFL and the NFLPA, which includes a failed strike by the players during the 1987 season, has prompted some commentators to conclude that `[t]he union cannot effectively strike.'"), and (2) jettisoning the entire collective bargaining apparatus—and the rights and benefits it provided to them—in order to assert claims under the Sherman Act against the League. The Players elected to take the risk of the latter option and disclaimed the Union.

In 1990, eight individual players alleged that "Plan B"—a new proposed system of player restraints—constituted a violation of Section 1. The League again asserted the nonstatutory labor exemption. In May 1991, the district court granted the plaintiffs' motion for summary judgment, concluding that the exemption terminated where no "ongoing collective bargaining relationship" continued to exist because the union elected to dissolve itself. McNeil v. Nat'l Football League, 764 F.Supp. 1351, 1358 (D.Minn.1991).5

The court explained that the Union's executive committee decided, in light of the Eighth Circuit's ruling—and in particular the Eighth Circuit's recognition of the League's concession "that the nonstatutory labor exemption would necessarily end `if the affected employees ceased to be represented by a certified union'"—"to abandon all collective bargaining rights in an effort to end the labor exemption defense to the NFL defendants' system of player restraints." Id. at 1354, 1356. The court observed that the player representatives of each team unanimously voted to end the Union's "status as the players' collective bargaining representative and to restructure the organization as a voluntary professional association." Id. at 1354. The reconstituted association filed a labor organization termination notice with the labor department and procured from the IRS a reclassification of its tax-exempt status from that of a labor organization to that of a business league. Perhaps most importantly, the association promptly ceased all collective bargaining on behalf of any of the Players. Id. It also ceased other functions it had previously performed as a union. Id.

The League nonetheless claimed that the labor exemption continued in effect and further contended that the Union "must first obtain a determination from the NLRB `that its certification is no longer operative.'" Id. at 1356. The district court rejected this position, however, stating that "[t]he [League's] position regarding decertification ... finds no support in the labor law." Id. at 1356-57.

The court then explained that although a union may obtain certification from the NLRB, certification is not necessary to participate in a collective bargaining relationship under the labor laws. The only requirement is that a "majority of the employees in a bargaining unit supports a particular union as their bargaining representative." Id. at 1357. Certification, however, provides certain additional "`special privileges which are not accorded unions recognized voluntarily or under a bargaining order.'" Id. (quoting N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 598-99, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969)). Moreover, employees have the same right to withdraw from a bargaining relationship as do employers (although subject to different conditions and standards). Id. at 1357-58 (citing Section 7 of the NLRA).

The court further explained that "[j]ust as certification is not required to create a collective bargaining relationship, a decertification proceeding is not required to end it." Id. at 1358. Decertification election proceedings are appropriate where "an employer or a competing union seeks to contest a union's majority status" over the union's objection. Id. But where, as the court in McNeil faced, "a majority of players have voted to end collective bargaining" and the Union "concedes it has lost its majority status," such that it "may no longer bargain on the players' behalf," "there is no need for the NLRB to decertify the NFLPA." Id.

Finally, the court recognized that "a union may end its duty to bargain by disclaiming interest in representing the employees as long as it does so in good faith." Id. at 1357 n. 6. That good faith requirement is met where "a majority of the players clearly have indicated their wish not to be represented by any entity, including the NFLPA, during collective bargaining." Id. The district court thus concluded that because (1) the Union "no longer engages in collective bargaining and has also refused every overture by the NFL defendants to bargain since November of 1989," and (2) the Union "has abandoned its role in all grievance arbitrations and has ceased to regulate agents," no "ongoing collective bargaining relationship" remains. Id. at 1358-59. The court further observed that, with the dissolution of their Union, the players have "paid a price for the loss of their collective bargaining representative because the NFL defendants have unilaterally changed insurance benefits and lengthened the season without notifying the NFLPA." Id. at 1359. Because the collective bargaining relationship had ended, the plaintiffs also lost, for example, their labor law rights to institute "an NLRB proceeding for failure to bargain in good faith" as well as their right to strike. Id.

The McNeil plaintiffs then moved for partial summary judgment on their claim for an injunction under Section 16 of the Clayton Act, seeking to permanently bar the NFL from implementing "Plan B." 790 F.Supp. 871, 876 (D.Minn.1992). The court denied that motion as premature, however, as it was not then clear that the League would institute that plan. Id. at 877. Because the court also denied the League's summary judgment motion on that claim, id., the case proceeded to trial. In September 1992, the jury in the McNeil action found that the Plan B restraints violated Section 1 of the Sherman Act and inflicted economic injury on the plaintiffs. McNeil v. Nat'l Football League, 1992 WL 315292, *1 (D.Minn. Sept. 10, 1992) (publishing the special verdict form).

Shortly after that September 1992 verdict, a group of players seeking to become free agents brought suit complaining that the same restraints injured them. Jackson v. NFL, 802 F.Supp. 226, 228 (D.Minn. 1992). Based on the McNeil verdict, the court granted their motion for a temporary restraining order, finding that they would suffer irreparable injury each week they remained restricted under the NFL-imposed system of player restraints. Id. at 230-31.

The result of these actions quickly led to the White v. NFL litigation. In 1992, several players brought an antitrust class action seeking an injunction requiring total or modified free agency. White v. Nat'l Football League, 822 F.Supp. 1389 (D.Minn.1993). The court then certified a settlement class for damages and injunctive relief.

Finally, the League and the Players entered into the White Stipulation and Settlement Agreement ("SSA"), which the court approved on April 30, 1993. They also entered into a Collective Bargaining Agreement ("CBA"), at the insistence of the NFL, that mirrors the SSA. The SSA "allowed for recertification of the [NFLPA] and the resumption of the collective bargaining relationship between the players and owners." Id. at 1134.

Since 1993, the Players and the League have operated under the SSA. Among the negotiated terms of the SSA, the Players, who had de-certified their union in order to bring antitrust claims, acceded to the NFL's demand that they re-certify their union within 30 days. As an apparent form of quid pro quo for that accession, the NFL agreed to waive any right in the future to assert the non-statutory labor exemption, after the expiration of the CBA, on the ground that the Players' disclaimer was a sham or otherwise ineffective to end the labor exemption. (See Doc. No. 43-1 (Declaration of Barbara P. Berens, Ex. A (Amended SSA)) Art. XVIII § 5(b).) In fact, Eugene Upshaw, who had served as the Executive Director of the NFLPA since 1983, has stated that the "only reason" he "agreed to recommend that the NFLPA be converted from a trade association back into a union" was "because the owners demanded that as a condition for the Settlement Agreement," but only in exchange for the owners' agreement that they would not challenge any subsequent election to again decertify the NFLPA as their collective bargaining representative. (Doc. No. 7-1 (Declaration of Richard A. Berthelsen), ¶ 8 (emphasis in original).)

Consequently, the Players reconstituted the National Football League Players' Association ("NFLPA") as their exclusive bargaining authority, and, together with the NFL, entered into a Collective Bargaining Agreement ("CBA") that mirrored the SSA. The parties amended and extended the CBA in 1996 and 1998 and, in 2006, renegotiated the CBA for the period from 2006-2012 (that is, through the 2012 season, which would terminate at the end of February 2013). See White v. NFL, CV 4-92-906(DSD), 766 F.Supp.2d 941, 944-45, 2011 WL 706319, *1 (D.Minn. Mar. 1, 2011).

In the meantime, the "impasse" issue addressed in Powell eventually reached the Supreme Court, on review of a separate action in Brown v. Pro Football, Inc., 518 U.S. 231, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996). In Brown, players on "developmental squads" alleged that the NFL's unilateral imposition in June 1989 (when the parties reached an impasse in negotiations to replace the collective bargaining agreement that had expired in 1987) of a fixed salary for such players violated the antitrust laws. Id. at 234-35, 116 S.Ct. 2116. The Supreme Court ruled that an impasse in the course of labor negotiations did not operate to lift the protection of the non-statutory antitrust exemption. Id. at 250, 116 S.Ct. 2116.6

The most recent SSA and CBA provided players with approximately 50% of all NFL revenues with a salary cap set at 57.5% of "Total Revenues," as defined in the CBA, after the deduction of approximately $1 billion in expenses. (Doc. No. 1 (Complaint) ¶ 47.) In May 2008, however, the NFL opted out of the last two years of the operative SSA and CBA for various reasons, including a desire to seek a greater share of revenues, and to impose new restraints, such as a rookie wage scale. (Id. ¶ 49.) Since that time, the NFLPA and the NFL have attempted to negotiate a new CBA, but their efforts have proven to be unsuccessful. During this process, the NFL warned the Players that they might use a "lockout" as a means to achieve an agreement more favorable to their interests. White, 766 F.Supp.2d at 944-45, 2011 WL 706319, at *1. A lockout occurs when an employer lays off or `locks out' its unionized employees during a labor dispute to bring economic pressure in support of the employer's bargaining position. See American Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 301-302, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965) (permitting management lockouts as a collective bargaining negotiating tool, as a counterpart to a union's right to strike).

The most recent SSA and CBA was due to expire at 11:59 p.m. on March 11, 2011. (Compl. ¶¶ 50-51.) As of that date, the Players had determined that "it would not be in their interest to remain unionized if the existence of such a union would serve to allow the NFL to impose anticompetitive restrictions with impunity." (Id. ¶ 54.) A substantial majority of the Players voted to end the collective bargaining status of their Union, and the player representatives of the Union then voted to restructure the organization as a professional association rather than as a union. (Id. ¶¶ 55-56.)

Accordingly, at approximately 4:00 p.m. on that day, the NFLPA informed the NFL that it disclaimed any interest in representing the Players in further negotiations. (Id. ¶ 57; Doc. No. 91, Ex. B.)7 In addition, as of that time, the NFLPA amended its bylaws to prohibit it or its members from engaging in collective bargaining with the NFL, the individual teams, or their agents. (Doc. No. 1, ¶ 58.) The NFLPA also filed notice with the Department of Labor to terminate its status as a labor organization. (Id. ¶ 59; Doc. No. 91, Ex. E.) Similarly, it filed an application with the IRS to be reclassified for tax purposes as a professional association rather than a labor organization. (Doc. No. 1, ¶ 60.) And on March 11, it also informed the NFL that it no longer would represent players in grievances under the soon-to-expire CBA, so that the players would have to pursue or defend on an individual basis any grievance with the NFL or the individual teams. (Id. ¶ 61; Doc. No. 91, Ex. C.)

The Brady Plaintiffs filed the present Complaint that same day. It alleges several antitrust claims under Section 1 of the Sherman Act as well as breach of contract and related tort claims. (Doc. No. 1.) They allege that the NFL and its thirty-two separately-owned and independently-operated teams have jointly agreed and conspired—"through a patently unlawful group boycott and price-fixing arrangement" or "a unilaterally-imposed set of anticompetitive restrictions on player movement, free agency, and competitive market freedom"—to coerce the Players "to agree to a new anticompetitive system of player restraints" that will economically harm the Plaintiffs. (Id. ¶¶ 2-3.) One of the alleged anticompetitive agreements is the "so-called `lockout' aimed at shutting down the entire free agent marketplace," "as well as a boycott of" rookies and players currently under contract." (Id. ¶ 3.) Thus, they moved for a preliminary injunction the same day, seeking to enjoin the NFL from perpetuating the "lockout" or group boycott. (Doc. No. 2.) The Eller Plaintiffs filed a similar action on March 28, 2011. (Doc. No. 57.) They too promptly moved for essentially the same preliminary injunctive relief. (Doc. No. 58.)

After the CBA expired at the end of that day, the League instituted its "lockout" effective March 12, 2011.

The Brady Plaintiffs present affidavit evidence to this Court regarding their irreparable harm. Richard Berthelsen, the NFLPA's General Counsel, contends that, due to the relatively short careers of most NFL players, damages could not fully compensate the Players. (Doc. No. 7-1 (Berthelsen Decl.) ¶ 29.) He argues further that the players' unique abilities and circumstances compound the difficulty in determining the salary and benefits that each player might have earned in a competitive market. (Id.) Numerous affidavits underscore that the careers of NFL players are of short duration, typically less than four years. (Doc. No. 5 (Decl. of Frank Bauer) ¶ 11; Doc. No. 6 (Decl. of Anthony Agnone) ¶ 9; Doc. No. 7 (Berthelsen Decl.) ¶ 30; Doc. No. 9 (Decl. of Tom Condon) ¶ 12; Doc. No. 10 (Decl. of Neil Cornrich) ¶ 7; Doc. No. 11 (Decl. of William Vann McElroy) ¶ 13; Doc. No. 12 (Decl. of Neil Schwartz) ¶ 14.)

These affidavits note that the short careers of NFL players are due to both the ever-present risk of career-ending injury and the constant physical wear and tear on players' bodies—risks faced by every NFL player. (Id.) The Brady Plaintiffs also maintain that they must constantly demonstrate their skill and value on the practice and playing fields. (Bauer Decl. ¶ 12; Agnone Decl. ¶ 10; Berthelsen Decl. ¶ 31; Condon Decl. ¶ 13; Cornrich Decl. ¶ 8; McElroy Decl. ¶ 14; Schwartz Decl. ¶ 15.) Because of this constant pressure to prove their physical and economic worth, the Brady Plaintiffs submit that the loss of an entire year in a short professional athletic career cannot be recaptured and, therefore, cannot be adequately compensated by damages. (Bauer Decl. ¶ 12; Agnone Decl. ¶ 10; Berthelsen Decl. ¶¶ 31, 35; Condon Decl. ¶ 13; Cornrich Decl. ¶ 8; McElroy Decl. ¶ 14; Schwartz Decl. ¶ 15; Doc. No. 13 (Decl. of Donald Yee) ¶ 8.) Moreover, they argue, time spent off the playing and practice fields diminishes players' skills. (Bauer Decl. ¶ 12; Agnone Decl. ¶ 10; Berthelsen Decl. ¶ 31; Condon Decl. ¶ 13; Cornrich Decl. ¶ 8; Schwartz Decl. ¶ 15; Yee Decl. ¶ 8.) As a result of sitting out a season, they argue, this diminishment in skills could shorten or end the careers of some players. (Agnone Decl. ¶ 10; Condon Decl. ¶ 13; Cornrich Decl. ¶ 8; McElroy Decl. ¶ 14; Schwartz Decl. ¶ 15.)

As a result, the Players—having made the decision to dissolve the NFLPA as their collective bargaining agent—allege that they immediately began to suffer the consequences of the NFL's lockout. Significantly, in previous battles in this long-running dispute between the Players and the League, this Court has recognized that the threat of harm shown by Plaintiffs here, including lost playing time, constitutes irreparable harm. Nat'l Football League Players Ass'n v. Nat'l Football League, 598 F.Supp.2d 971, 982 (D.Minn. 2008); Jackson v. Nat'l Football League, 802 F.Supp. 226, 230-31 (D.Minn.1992); see also Powell v. Nat'l Football League, 690 F.Supp. 812, 818 (D.Minn.1988) (denying injunctive relief for unrestricted free agency rules, but finding that at least some of the players would likely suffer irreparable injury as a result of the NFL's restriction). "The existence of irreparable injury is underscored by the undisputed brevity and precariousness of the players' careers in professional sports, particularly in the NFL." Jackson, 802 F.Supp. at 231 (citing Linseman v. World Hockey Ass'n, 439 F.Supp. 1315, 1319 (D.Conn.1977)) ("[T]he career of a professional athlete is more limited than that of persons engaged in almost any other occupation. Consequently the loss of even one year of playing time is very detrimental.").

After consolidating the two actions (Doc. No. 55), this Court heard oral argument on both motions.

II. DISCUSSION

Plaintiffs seek a preliminary injunction under Rule 65 against the "lockout" that Plaintiffs contend is an illegal "group boycott and price-fixing agreement" by the NFL and its owners. (Doc. No. 4, at 9 (Mem. at 1).) In response, the NFL claims this Court may not enjoin their "exercise of their labor law right to lock out their player-employees" as the lockout "is unquestionably lawful and permitted by federal labor law." (Doc. No. 34, at 9 (Mem. at 1) (emphasis in original).)

Before this Court may address whether a preliminary injunction is warranted, however, it must first address the NFL's argument that the Norris-LaGuardia Act precludes any injunctive relief here, as well as its argument that this Court should defer this matter, or at least a portion of it, to the National Labor Relations Board under the doctrine of primary jurisdiction—issues that the NFL contends are jurisdictional. (Id. at 9-10, 36 (Mem. at 1-2, 28) (characterizing these two issues as "jurisdictional").)

A. The Threshold "Jurisdictional" Issues

Both of the NFL's jurisdictional arguments appear to rest on the premise that this dispute is governed by labor law— chiefly the National Labor Relations Act of 1935 ("NLRA"), 49 Stat. 449, and the Norris-LaGuardia Act of 1932, 47 Stat. 90.8 This premise, in turn, assumes that the Players are still represented by their former Union. (Doc. No. 34, at 9-10, 36 (Mem. at 1-2, 28) (contending that the Players' Union, as a "party to a collective bargaining relationship," "cannot, by a tactical declaration akin to the flip of a switch," unilaterally and "instantaneously oust federal labor law" and thereby "transform a multiemployer bargaining unit's lawful use of economic tools afforded it under the labor laws into an antitrust violation").)

It is necessary then to determine, as an initial matter, whether this Court has jurisdiction to rule whether the Players' disclaimer was effective or not, or whether this Court must refer that issue to the National Labor Relations Board ("NLRB"). The Court thus turns to the critical question of what general body of law governs this dispute in its present factual context. This antecedent issue is best approached by first addressing the League's contention that this dispute, or at least a portion of it, must be referred to the NLRB under the doctrine of "primary jurisdiction" for resolution of the question of whether the Union's disclaimer was valid and effective.9

1. Exercising Its Discretion, This Court Declines to Refer This Matter To The NLRB

The NFL argues that this Court "cannot consider" the issue of "whether the nonstatutory labor exemption protects the NFL's conduct from antitrust challenge" "without first determining (1) whether the NFLPA's purported disclaimer is valid and effective and, if so, (2) whether such disclaimer immediately ended the exemption's applicability." (Doc. No. 34, at 25 (Mem. at 17).) The League contends that the validity of the disclaimer, however, "is unquestionably within the NLRB's primary jurisdiction." (Id.)10 Thus the League expressly argues that "the Court must stay this case pending the outcome of the Board proceedings." (Id. at 10 (Mem. at 2).)11

(a) The Doctrine of "Primary Jurisdiction"

Under the doctrine of primary jurisdiction, a court having jurisdiction to hear an action that involves a particular issue on which an agency has particular expertise may "refer" that issue to the agency for its views or resolution. Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (explaining that doctrine applies where the "claims are properly cognizable in court" and that "[r]eferral of the issue to the administrative agency does not deprive the court of jurisdiction"). Thus the issue is solely whether this Court should stay this action to await the ruling of the NLRB on the NFL's outstanding unfair labor practice charge that accuses the Players of a "sham," and therefore ineffective, disclaimer.

(b) There Is No Issue Within The NLRB's Exclusive Statutory Jurisdiction

At the outset, this Court must clarify the distinction between the doctrine of primary jurisdiction and the question of an agency's statutory jurisdiction. When Congress creates an agency, it often accords to it the authority to adjudicate disputes within its particular realm of expertise. 2 Richard J. Pierce Jr., Administrative Law Treatise § 14.2, at 1185 (5th ed. 2010) ("An agency has the power to resolve a dispute or an issue only if Congress has conferred on the agency statutory jurisdiction to do so."). That "statutory jurisdiction" is often exclusive of that of the federal (and state) courts.12

Due to the related nature of the two doctrines, sometimes even the "courts confuse primary jurisdiction with exclusive statutory jurisdiction." 2 Pierce, supra, § 14.2, at 1191.13 The issue of primary jurisdiction must be kept separate from issues of an agency's exclusive statutory jurisdiction. Id., § 14.1, at 1162 ("The question of whether an issue is within the agency's primary jurisdiction is different from the question of whether the agency actually has exclusive statutory jurisdiction to resolve an issue.").14

With respect to the present dispute, the National Labor Relations Act declared it to be the policy of the United States to encourage "the practice and procedure of collective bargaining" and to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 29 U.S.C. § 151 ("Findings and declaration of policy."). The key provisions for present purposes are: (1) Section 7, which provides for the rights of employees to organize as a union and then collectively bargain with their employers, 29 U.S.C. § 157; (2) Section 8, which delineates unfair labor practices (ULPs), 29 U.S.C. § 158, both those by the employer, id. § 158(a), and those by "labor organizations," id. § 158(b); and (3) Section 9, which provides procedures regarding elections of representatives for purposes of collective bargaining and the powers of such representatives, id. § 159. See generally 1 Higgins, supra, at 473 ("Section 9 vests in the Board `the broad duty of providing election procedures and safeguards.'").

For present purposes, Section 7 merits additional attention as it provides not only that employees shall have rights to organize and bargain collectively, but that they "shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as to a condition of employment as authorized in section 158(a)(3) of this title." 29 U.S.C. § 157 (emphasis added).

The Wagner Act also created the NLRB ("the Board") and the position of the General Counsel of the Board. 29 U.S.C. § 153. As the NFL correctly observes, "`[t]he labor laws give the Board, not antitrust courts, primary responsibility for policing the collective-bargaining process.'" (Doc. No. 34, at 25 (Mem. at 17) (quoting Brown v. Pro Football, Inc., 518 U.S. 231, 242, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996)).) "The Board has two principal functions under the National Labor Relations Act ...:(1) [t]he prevention of statutorily defined unfair labor practices..., and (2) the conduct of secret ballot elections among employees in appropriate collective-bargaining units to determine whether or not they desire to be represented by a labor union." See 32 Fed. Reg. 9588, Sec. 201 (July 1, 1967). See generally 2 Higgins, supra, at 2658 ("The Board's principal function is adjudicatory in nature. It determines all unfair labor practice cases brought before it by the general counsel. It also has complete authority over representation matters.").

The Board's central function is to resolve claims of ULPs under Section 8. 29 U.S.C. § 160(a) ("The Board is empowered... to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce."). Under Section 7, the Board also polices situations where employees exercise their rights to form a union and then to engage in collective bargaining. 29 U.S.C. § 157. Finally, under Section 9, the Board addresses questions of the appropriate union representative and defines the appropriate bargaining unit. 29 U.S.C. § 159.

The General Counsel of the NLRB "shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law." Id. § 153(d); see also, 32 Fed. Reg. 9588, Sec. 202 (July 1, 1967).

In support of its argument that the NLRB must decide whether the Union's disclaimer was valid and effective, however, the NFL cites Minn-Dak Farmers Cooperative, Employees Organization v. Minn-Dak Farmers Cooperative, 3 F.3d 1199 (8th Cir.1993), incorrectly conflating the doctrine of primary jurisdiction and exclusive statutory jurisdiction.15 In Minn-Dak, a union brought an action in federal district court against an employer for a declaration that the employer was required to recognize an affiliation vote. The court recognized that the "Board has exclusive jurisdiction to decide questions concerning representation" under Section 9, 29 U.S.C. § 159, concluding that "[t]his case presents a pure question of representation, and is within the exclusive jurisdiction of the NLRB." Id. at 1201 (emphasis added).16 Moreover, Section 9 provides the procedures by which employees exercise their Section 7 right to bargain collectively through representatives of their own choosing," that is, by conducting a representation election. 1 Higgins, supra, at 472-73. It does not govern the dissolution of a union by disclaimer.

This federal antitrust and state-law contract case, however, cannot be deemed either a Section 9 representation action (much less a "pure" one), a Section 8 unfair labor practice action, or a Section 7 action.17 Rather, the NFL has disputed the Union's disclaimer—which concerns a union's decision to dissolve itself as a labor organization, instead of recognition of a vote to create or join a union—as a defense to the individual Players' antitrust (and related contract and tort) claims. Accordingly, it is difficult to accept the NFL's argument that, in this antitrust action, the question of whether the Union's disclaimer is invalid is a "threshold predicate," rather than a collateral issue, where the Supreme Court has concluded that "the federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies, including the antitrust laws." Connell Constr. Co. v. Plumbers and Steamfitters Local Union No. 100, 421 U.S. 616, 626, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) (emphases added). In short, this antitrust action is not within the Board's exclusive statutory jurisdiction.

(c) This Federal Antitrust Action Is Not Governed By The Garmon Preemption Doctrine

Nor is this antitrust action subject to the Garmon preemption doctrine, which is based on an agency's exclusive statutory jurisdiction. The NFL, relying substantially on the Supreme Court's decision in San Diego Bldg. Trades Council v. Garmon, contends that "federal courts generally do not have jurisdiction over activity that is `arguably subject to' Sections 7 and 8 of the NLRA, ... and that they `must defer to the exclusive competence of the' NLRB." (Doc. No. 34, at 26 (Mem. at 18) (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (emphasis added)).) But in Garmon, the Supreme Court addressed, on review from the judgment of the California state supreme court, whether a state court could enjoin a union for picketing and award damages for losses sustained. Thus, the issue was federal preemption of state trespass law. Id. at 246, 79 S.Ct. 773 ("[T]he State's jurisdiction is displaced.").

As the Supreme Court explained in Garmon, the enactment of federal labor law "inevitably gave rise to difficult problems of federal-state relations," due in part to the fact that the general statutory language left it to the courts to fill in the details by adjudicating individual cases. 359 U.S. at 239-40, 79 S.Ct. 773. Accordingly, the Eighth Circuit has recognized that the Garmon doctrine "is properly classified as one of preemption, rather than primary jurisdiction." Augspurger v. Brotherhood of Locomotive Engineers, 510 F.2d 853, 857-58 nn. 5 & 7 (8th Cir.1975) (further noting that where the NLRB exercises its jurisdiction under Garmon, "the jurisdiction of the judiciary is not simply postponed, but is ousted," whereas under primary jurisdiction, a court's "jurisdiction is not thereby ousted, but only postponed"). There is no comparable question of preemption here, as the present federal antitrust action was properly filed in federal court. 28 U.S.C. §§ 1331, 1337.18

Moreover, the issue in Garmon did not concern the genuine doctrine of "primary jurisdiction" at issue here—whether a court otherwise possessing subject matter jurisdiction should "refer" a particular issue to an agency having expertise in that specific area of law. As the Supreme Court itself later explained, in Garmon,

Sears, Roebuck and Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 199 n. 29, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978) (emphasis added).

Rather, the issue in Garmon concerned the NLRB's statutory jurisdiction:

359 U.S. at 242, 79 S.Ct. 773 (quoting Garner v. Teamsters, 346 U.S. 485, 490-91, 74 S.Ct. 161, 98 L.Ed. 228 (1953)).

The language on which the NFL relies here to contend that the NLRB's purported "primary jurisdiction" is broad and mandatory derives, however, from the Supreme Court's preemption ruling: "When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by [Section] 7 ... or constitute an unfair labor practice under [Section] 8, due regard for the federal enactment requires that state jurisdiction must yield." Id. at 244, 79 S.Ct. 773.19 The Supreme Court thus simply ruled, with respect to the NLRB's statutory jurisdiction, that doubts should be resolved in favor the NLRB:

Id. at 244-45, 79 S.Ct. 773.20 Moreover, the Supreme Court's broad preemption standard—requiring deference "to the exclusive competence of the [Board] if the danger of state interference with national policy is to be averted" where "an activity is arguably subject to [Section] 7 or [Section] 8 of the Act"—is not implicated here where there is no issue of state law or state court interference with national labor policy. 359 U.S. at 245, 79 S.Ct. 773. As the Supreme Court itself has observed, the preemption question at issue in Garmon differs from the true "primary jurisdiction" issue:

Sears, Roebuck & Co., 436 U.S. at 199 n. 29, 98 S.Ct. 1745 (whereas under primary jurisdiction a court simply refers an issue to an agency for its initial decision).21

Furthermore, as the Supreme Court's decisions after Garmon demonstrate, "the Court has refused to apply the Garmon guidelines in a literal, mechanical fashion." Sears, Roebuck & Co., 436 U.S. at 188, 98 S.Ct. 1745; 2 Pierce, supra, § 14.4, at 1203 ("Given the difficulty and frustration the Court has experienced in its attempts to rely on the primary jurisdiction doctrine in the labor relations/federalism context, it is easy to understand why the Court has become less willing to use the doctrine and more willing to resolve close questions itself without the benefit of an initial agency resolution."); see id., § 14.4, at 1201 ("The Garmon doctrine has become riddled with exceptions.").

For example, courts may hear actions where the claims "create no realistic risk of interference with the Labor Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices." Sears, Roebuck & Co., 436 U.S. at 198, 98 S.Ct. 1745. Similarly, in Kaiser Steel Corp. v. Mullins, the Supreme Court stated that "a federal court has a duty to determine whether a contract violates federal law before enforcing it." 455 U.S. 72, 83, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982) (rejecting argument that "the question of the legality of [a contract clause] under § 8(e) of the NLRA was within the exclusive jurisdiction of the [NLRB]"). Accord Pipe Fitters Health and Welfare Trust v. Waldo, 872 F.2d 815, 817 (8th Cir.1989) (rejecting plaintiff's argument that the district court had "no jurisdiction to consider" an unfair-labor-practice defense because Kaiser Steel "gives it the authority to find collective bargaining agreements unenforceable if they violate federal labor law").

In sum, the present issue of "primary jurisdiction" is not truly "jurisdictional" as it does not concern the agency's exclusive statutory jurisdiction, much less whether a state court's jurisdiction is thereby preempted. Even assuming that the question of the Union's disclaimer is an issue of labor law, this Court need not refer it to the NLRB because it arises as a question embedded in the larger framework of this antitrust suit.

(d) The Minimal, If Any, Benefit That Might Be Derived From Seeking The NLRB's Expertise Here Is Clearly Outweighed By The Delay Involved, Particularly Where The Players Are Incurring Ongoing Irreparable Harm

Once the issue is properly framed in terms of "primary jurisdiction," rather than exclusive statutory jurisdiction or the Garmon preemption doctrine, the question here is relatively straightforward. But the fact that this Court's jurisdiction is not divested in favor of the "exclusive competence" of the NLRB does not resolve the issue of whether this Court should, in its discretion, nevertheless refer the disclaimer issue to the Board. See Sheet Metal Workers Int'l Ass'n v. Murphy Constr. Co., 191 F.3d 909, 910 (8th Cir.1999) (applying abuse of discretion standard regarding primary jurisdiction).22

As explained above, the doctrine of primary jurisdiction applies where a court has jurisdiction of the action but faces an issue where an agency's expertise on that issue, not within a court's general competence, might warrant the court staying the action while it refers the issue to that agency. But the Supreme Court also has explained that "[n]o fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for existence of the doctrine are present and whether the purposes its serves will be aided by its application in the particular litigation." United States v. Western Pacific Railroad Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). Accord Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005) ("The contours of primary jurisdiction are not fixed by a precise formula.").

Courts "refer" an issue to an agency under the doctrine of primary jurisdiction for two primary reasons: (1) to ensure uniformity of results, and (2) where resolution of the issues requires "the expert and specialized knowledge of the agencies involved." Western Pacific, 352 U.S. at 64, 77 S.Ct. 161. Accord Alpharma, Inc., 411 F.3d at 938. The Eighth Circuit has repeatedly cautioned that the doctrine is to be invoked sparingly, however, as staying the case while the agency addresses or resolves the particular issue within its expertise usually entails substantial delay. E.g., Alpharma, Inc., 411 F.3d at 938 ("The doctrine is to be `invoked sparingly, as it often results in added expense and delay.'"). Such concerns are particularly important insofar as most agencies lack any statutory "mechanism whereby a court can on its own authority demand or request a determination from the agency." Reiter v. Cooper, 507 U.S. 258, 268 n. 3, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (explaining that "[r]eferral is sometimes [used] loosely" to describe the "process whereby a court" seeks administrative agency input, because one of the parties must file an administrative charge). Although the NFL has filed a charge here, the NLRB has yet to issue any complaint and, in this Court's considered judgment, it is likely that the Board will dismiss the charge.

Here, as in Alpharma, this Court finds that "this is not the rare case requiring `expert consideration and uniformity of resolution.'" 411 F.3d at 938. This Court is unable to discern much, if any, basis for referring the disclaimer issue to the NLRB. The issue of the Players' disclaimer of the Union as their collective bargaining agent does not require or otherwise merit the Board's specialized expertise. The Board has articulated the standard under which disclaimers must be evaluated in a clear and consistent fashion, and application of that established standard requires no particular specialized expertise. Cf. Alpharma, Inc., 411 F.3d at 938 (refusing to refer issue to agency as issue turns on matters "well within the `conventional experience of judges'").

The NLRB has addressed the issue of union disclaimers in numerous opinions over the last six decades. As the NFL correctly notes, "a union's disclaimer of interest in collective bargaining is effective only if it was `unequivocal' and `made in good faith.'" (Doc. No. 34, at 29 (Mem. at 21) (quoting In re Int'l Bd. Of Elec. Workers, AFL-CIO, Local 59, 119 N.L.R.B. 1792 (Feb. 28, 1958)).)23 The NFL suggests that the Union's disclaimer here, though, was made in bad faith because it was a "`tactical maneuver'" or otherwise employed "`only as a measure of momentary expedience, or strategy in bargaining.'" (Id. (quoting In re: Retail Assocs., Inc., 120 N.L.R.B. 388, 394 (1958)).) The League also characterizes the disclaimer as a "sham." (Doc. No. 75, at 14 (Mem. at 9) (quoting Capitol Market No. 1, 145 N.L.R.B. 1430 1431 (1964)).) The NFL predicts that "the Board will undoubtedly recognize that the Union's purported disclaimer is not motivated by a desire to abandon unionism permanently." (Doc. No. 34, at 29 (Mem. at 21).) But there is no legal support for any requirement that a disclaimer be permanent. Employees have the right not only to organize as a union but also to refrain from such representation and, as relevant here, to "de-unionize." 29 U.S.C. § 157.

Nor is there any evidence of conduct by the Players which is inconsistent with an unequivocal disclaimer. In Local 59, the NLRB explained that a "bare disclaimer" is one that is inconsistent with its ongoing conduct as a union. 119 N.L.R.B. at 1798-99 (noting, among other things, that members of Local 59 "have continued to be members of" the union, and that the union's representative still functioned as the employees' representative). Similarly, in Capitol Market No. 1, the union "continued the picketing without interruption" after notifying the employer of its purported disclaimer. 145 N.L.R.B. 1430, 1431 (1964).24 The NLRB explained that a "good faith" disclaimer is the opposite of continuing to engage in union activities such as picketing. Id. at 1432. In short, a "good faith" disclaimer is one that is not inconsistent with the union's ongoing actions as its members' bargaining agent. Queen's Table, Inc., 152 N.L.R.B. 1401 (1965) (concluding that disclaimer was not in good faith based on finding "that the Union's entire course of conduct is inconsistent with its disclaimer"); Grand Central Liquors, 155 N.L.R.B. 295 (1965) (same). Likewise, a "bare disclaimer" is one not supported by the union's continuing conduct.

Most importantly, in 1991, the NLRB's General Counsel issued an opinion in a factual context remarkably similar to that at issue here. In the wake of the Eighth Circuit's November 1989 decision in Powell v. National Football League, which concluded that the non-statutory labor exemption protected the League's free agency restrictions from any antitrust claims by the Union, "the NFLPA Executive Committee decided to abandon all collective bargaining rights in order to allow player antitrust challenges to" those restrictions "to go forward free of the labor exemption defense." In re Pittsburgh Steelers, Case 6-CA-23143, 1991 WL 144468, *1 (June 26, 1991).25

The General Counsel in the Pittsburgh Steelers matter addressed whether the NFL violated Section 8(a), which prohibits unfair labor practices by employers, by continuing to recognize the NFLPA as the players representative "following the NFLPA's disclaimer and reorganization, where another union is now trying to organize the players." Id.26 The NFL had "refused to accept the disclaimer and reorganization," and the rival purported union, the United Players of the NFL (UPNFL), filed a charge that the NFL's statements "created the impression that the NFLPA was still the players' bargaining representative," thereby interfering in the new union's organizing campaign.

Identifying as a "threshold question" the issue of "whether the NFLPA remains the players' collective-bargaining representative," the General Counsel noted that the NFL contended that "the NFLPA's disclaimer and reorganization is a sham and that management has acted properly in continuing to recognize the NFLPA as the incumbent union." Id. at *2. The General Counsel, however, concluded "that the disclaimer was valid," and that "the NFLPA has not merely disclaimed representative status," but also "restructured itself so that it no longer functions as a collective-bargaining agent." Id. Accordingly, the General Counsel concluded that "the NFLPA is not a labor organization as defined in Section 2(5) of the Act," and thus "there can be no Section 8(a)(2) violation since it cannot be said that the NFL has been attempting to deal with a `labor organization.'" Id. In the absence of a "labor organization," the General Counsel stated that "[w]e conclude that the [Section 8(a)(2) ] charge should be dismissed." Id. "In summary, we conclude that the Section 8(a)(2) allegation is without merit because the NFLPA has effectively disclaimed its representational rights and has converted itself from a Section 2(5) labor organization to a trade association." Id. at *4; see In re Cleveland Decals, Inc., 99 N.L.R.B. 745 (1952) (dismissing petition for decertification because "the Union's unequivocal disclaimer of interest in the Employer's employees cancels whatever vitality its certificate as bargaining representative might otherwise possess"); In re Federal Shipbuilding and Drydock Co., 77 N.L.R.B. 463 (1948) (dismissing petition for decertification and setting aside a previously issued "Direction of Election" after union disclaimed its status as exclusive bargaining representative of the employees because "to direct an election despite the Union's disclaimer, would not only be a waste of Federal funds, but would also almost certainly mean" the Employer could "refuse to engage in collective bargaining with [any union]").

Summarizing the Board's opinions on union disclaimers, the General Counsel provided a succinct standard.27 "In order for a union's disclaimer in representing a particular unit to be valid, it must be unequivocal, made in good faith, and unaccompanied by inconsistent conduct." In re Pittsburgh Steelers, 1991 WL 144468 at *4 n. 8. "Moreover, when a union has made a valid disclaimer, no question concerning representation exists and a decertification election will not be held because it would be an unnecessary waste of time and resources." Id.

Here, the League contends that the Players' "purported" disclaimer of their collective bargaining agent is a mere tactic that undermines the validity of the disclaimer. (Doc. No. 34, at 29-32 (Mem. at 21-24); Doc. No. 75, at 13-14 (Mem. at 8-9).) The Players deny this, asserting that "[b]y disclaiming their union, the Players have given up the right to strike, to collectively bargain, to have union representation in grievances, to have union representation in benefits determinations, and to have union regulation of agents." (Doc. No. 41, at 6 (Mem. at 1.).) Moreover, the Players note that the disclaimer does not stand alone. The Union also (1) amended its bylaws to prohibit it or its members from engaging in collective bargaining with the NFL, the individual teams, or their agents, (2) filed notice with the Department of Labor to terminate its status as a labor organization, (3) filed an application with the IRS to be reclassified for tax purposes as a professional association rather than a labor organization, and (4) informed the NFL that it no longer would represent players in grievances under the soon-to-expire CBA, such that the players would have to pursue or defend on an individual basis any grievance with the NFL or the individual teams. This Court finds that the disclaimer is not a mere tactic because it results in serious consequences for the Players.

Moreover, this Court need not resolve the debate about whether their motive was influenced by the expectation of this litigation, because the NLRB's General Counsel has addressed this question too. "[T]he fact that the disclaimer was motivated by `litigation strategy,' i.e., to deprive the NFL of a defense to players' antitrust suits and to free the players to engage in individual bargaining for free agency, is irrelevant so long as the disclaimer is otherwise unequivocal and adhered to." In re Pittsburgh Steelers, 1991 WL 144468, at *2 n. 8 (emphasis added).28 This Court notes that the actions of both sides are no doubt, in part, a litigation strategy, particularly where, as here, the parties have a long history of disagreements punctuated by uneasy and temporary truces. But because the disclaimer was unequivocal, the Union is not continuing to act as the Players' bargaining representative, and because the Players have given up very significant rights in doing so, any subjective motivation for disclaimer is irrelevant, as the Board's General Counsel has previously advised.

In Pittsburgh Steelers, the General Counsel then dismissed the Section 8(a)(2) charge. In fact, the NLRB routinely dismisses petitions where unions no longer exist, because the dispute is no longer within its statutory jurisdiction. E.g. In re Matter of Bonita Ribbon Mills, 88 N.L.R.B. 241 (Jan. 20, 1950). "The Board has repeatedly held ... that no question concerning representation exists, and no decertification election may be held, when the union sought to be decertified has, as here, disclaimed interest in representing the employees involved." Id.

In fact, the present disclaimer is essentially a repeat of the NFLPA's 1990 disclaimer, which occurred in the wake of the Eighth Circuit's November 1989 decision in Powell. As discussed above, the district court there concluded that labor law no longer applied where no "ongoing collective bargaining relationship" continued to exist after the union elected to dissolve itself. McNeil v. Nat'l Football League, 764 F.Supp. 1351, 1358 (D.Minn. 1991). The court rejected, as legally unsupported, the NFL's contention that the court must defer to an NLRB decertification proceeding. Id. at 1356-57. "Just as certification is not required to create a collective bargaining relationship, a decertification proceedings is not required to end it." Id. at 1358. "[A] union may end its duty to bargain by disclaiming interest in representing the employees as long as it does so in good faith." Id. at 1357 n. 6. Here, as in 1990, the good faith requirement is met.

Here, although the League filed an ULP charge in February, and purported to amend that charge immediately following the Union's disclaimer, it is likely, if not inevitable, that the NLRB will dismiss that charge now that the Players have exercised their right to abandon the collective bargaining framework of labor law in order to pursue individual contracts.29

In addition, in light of, and with respect for the NLRB's workload, delay in receiving a response from the NLRB is likely. See Douglas L. Leslie, Labor Law 13 (4th ed. 2000) ("Delay is a major problem in prosecuting unfair labor practice cases."). Any substantial delay here would be particularly problematic if, as Plaintiffs allege, they are incurring ongoing irreparable injury that would only be exacerbated while this Court would await the NLRB's answer.

All of these factors—that there is no fixed formula for application of the doctrine of primary jurisdiction; that in light of the Eighth Circuit's admonition that it should be applied "sparingly," referral to the agency is the exception, not the rule; that the advantages of any referral must be gleaned from the facts of each particular case; and that the court must weigh any such advantages against the possibility and severity of any resulting delay and hardship—confirm that the inherent nature of this Court's decision in this regard is one implicating its discretion. In exercising that discretion, this Court cannot conclude that it should stay this action because this is an issue on which the NLRB has already provided a clear standard for this Court to apply—and on which it has issued a ruling directly on point in Pittsburgh Steelers. The downside of staying the action plainly outweighs whatever value this Court might derive from an NLRB decision—assuming the General Counsel will in fact proceed to file a Complaint rather than dismiss the League's charge—where the ensuing delay would simply exacerbate the irreparable harm the Players are incurring every day the so-called "lockout" continues.30

(e) The Union's Disclaimer of Any Further Role As the Players' Agent in Collective Bargaining Presents An Entirely Separate Issue Than A Labor Law Negotiating Impasse

The NFL relies substantially on the Supreme Court's decision in Brown to argue that this Court must defer to the NLRB on this issue. In Brown, however, the Union still existed as the Players' exclusive bargaining agent, and the parties had reached an "impasse" in on-going negotiations. 518 U.S. 231, 234-35, 116 S.Ct. 2116 (1996). As the Court explained, such an impasse is not only common, but "often temporary." Id. at 245, 116 S.Ct. 2116. In fact, impasse "may differ from bargaining only in degree" and "may be manipulated by the parties for bargaining purposes." Id. at 246, 116 S.Ct. 2116. Perhaps most importantly for present purposes, "it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached." Id. In short, "impasse" is inherently part of the collective bargaining process under labor law—it occurs within the process of negotiating between a labor union and management. See id. at 244-45, 116 S.Ct. 2116 (explaining that numerous aspects of collective bargaining under labor law still apply after "impasse").

Thus, the Supreme Court rejected the argument that the non-statutory exemption terminates upon "impasse," as impasse usually does not indicate the end of collective bargaining. Id. at 250, 116 S.Ct. 2116 (holding that the exemption does not end upon mere "impasse," as such "conduct took place during and immediately after a collective bargaining negotiation"). The Court recognized, however, that the non-statutory labor exemption must end at some point. Id. ("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 intervening would not significantly interfere with that process."). But having addressed the precise issue on review, the Court refused to issue any advisory opinion or dicta as to where "to draw that line." Id.31

Here, however, this Court faces no issue of any impasse occurring within the ongoing, or likely to continue, process of collective bargaining. The parties have moved definitively beyond mere impasse within the bargaining process; they have moved beyond collective bargaining entirely. The CBA expired, with the extensive negotiations between the Union and the League having proved unsuccessful. The Union promptly and unequivocally disclaimed any further role as the Players' bargaining representative. And in contrast to the murky boundaries presented by an impasse that occurs within an ongoing collective bargaining process, the dissolution of the Players' former Union provides a clear boundary demarcating the end of collective bargaining under labor law.32

The body of labor law governing collective bargaining and impasse—which plainly must be circumscribed by some boundary, a boundary that other courts have defined as the continuing existence of a union that negotiates on behalf of its members—is thus no longer in play. See Stearns v. NCR Corp., 297 F.3d 706, 710 (8th Cir.2002) ("In general, an employment contract between an employer and a non-union employee is governed by state law, not by ERISA or by the federal labor laws."); see also Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 807, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945) (rejecting contention that "no labor disputes existed" in light of the fact that "Local No. 3 is a labor union and its spur to action related to wages and working conditions") (emphasis added); Brown v. Pro Football, Inc., 50 F.3d 1041, 1057 (D.C.Cir.1995) ("[W]e hold that the nonstatutory labor exemption waives antitrust liability for restraints on competition imposed through the collective bargaining process, so long as such restraints operate primarily in a labor market characterized by collective bargaining."), aff'd, 518 U.S. 231, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996).

Moreover, in contrast to an impasse, an effective disclaimer operates as an immediate trigger removing the dispute from the NLRB's jurisdictional scope. There is no need to wait to see if any temporary impasse will be surmounted or prove intractable. An unequivocal disclaimer effects a definitive and immediate renunciation of the labor law framework of collective bargaining. Moreover—as the NLRB itself has demonstrated by dismissing complaints otherwise within its statutory jurisdiction upon a union's valid and effective disclaimer of its role as bargaining agent—the NLRB has no further role. The NLRB has provided a clear test that this Court may apply on its own to conclude that the Union here no longer exists as the Players' bargaining agent.33

The League objects, arguing that the Players cannot just flip the "light-switch" and disclaim the Union. But again, employees have the right not to be a union as much as they have the right to be or organize as a union. Moreover, if negotiating as a union has proven unsuccessful, such organized employees also have the right to terminate the union. There is nothing inherently unfair or inequitable about a disclaimer effecting an immediate termination of the framework of labor law.34 Such an election cannot be viewed as mere gamesmanship, because it only comes with serious consequences to the Players making the election. The Players no longer derive the negotiating benefit of collective bargaining or any of the other rights they had enjoyed while they were unionized.35 Brown, 50 F.3d at 1057 (explaining that choice "to avail themselves of the advantage of the collective bargain process" results in the various benefits and protections "as defined by the federal labor laws"). The disclaimer is hardly one-sided, of course, as it also relieves the League from the obligations imposed on it in collective bargaining.

(f) The Disclaimer Is Unequivocal And The Players Have Effectively Disclaimed the Union As Their Bargaining Agent

The present issue of the effectiveness of the Union's disclaimer does not require that this Court dismiss this antitrust and contract action in deference to the NLRB's exclusive statutory jurisdiction. Nor is the Garmon preemption doctrine applicable to this federal court action. In addition, the Supreme Court's decision in Brown is not controlling because, unlike impasse—which occurs within the collective bargaining process of negotiations, but frequently amounts to nothing more than a "timeout"—such a disclaimer removes the dispute from the collective bargaining framework.

In exercising its discretion as to whether to apply the doctrine of primary jurisdiction, this Court concludes that resolution of the disclaimer issue is not one of the "rare" instances where the Court would be assisted by referring the issue to the NLRB. The Board already has articulated the governing standard, which is plainly within this Court's competence to apply here. On the present facts—which disclose no inconsistent conduct following the Union's disclaimer—this Court sees no basis to dispute the validity and effectiveness of the Union's unequivocal disclaimer of any further role as the Players' agent in collective bargaining with the League. As noted above, the Players took a calculated risk in order to pursue their present antitrust claims. The disclaimer was made in good faith as the Players have engaged in no inconsistent conduct. In fact, the Union (1) amended its bylaws to prohibit it or its members from engaging in collective bargaining with the NFL, the individual teams, or their agents, (2) filed notice with the Department of Labor to terminate its status as a labor organization, (3) filed an application with the IRS to be reclassified for tax purposes as a professional association rather than a labor organization, and (4) informed the NFL that it no longer would represent players in grievances under the soon-to-expire CBA, such that the players would have to pursue or defend on an individual basis any grievance with the NFL or the individual teams. As the Fifth Circuit explained in Corrugated Asbestos Contractors, Inc. v. NLRB, this Court "cannot force a union to continue, against its wishes, a relationship that is in its very nature predicated upon voluntariness and consent." 458 F.2d 683, 687 (5th Cir.1972) (denying employer's petition for review of NLRB order dismissing company's unfair labor practice charges upon union's disclaimer that was made in good faith).

2. The Norris-LaGuardia Act Does Not Deprive This Court of Jurisdiction To Issue Injunctive Relief

The League also contends that this Court lacks jurisdiction to issue any injunctive relief against it because the Norris-LaGuardia Act deprives the federal courts from issuing any injunction in a case "involving or growing out of a labor dispute," including one sought "by employees challenging a lockout under the antitrust laws." (Doc. No. 34, at 22 (Mem. at 14).) Insofar as this argument presents a matter of subject matter jurisdiction, this Court is obligated to satisfy itself that its jurisdiction is validly established.36

(a) History and Purpose of the Norris-LaGuardia Act

Some historical perspective on the Norris-LaGuardia Act is necessary and useful to understand the Act's operation. Before the Act was passed in 1932, employers routinely used the Sherman Act's prohibition against the restraint of trade against many union tactics involving organization and economic pressure. E.g. Loewe v. Lawlor (Danbury Hatters case), 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488 (1908) (holding union liable for treble damages for instigating a boycott). "The popularity of injunctive relief among employers stemmed from its unique effectiveness in stifling labor disputes" and "enabled employers to defeat unions instantly by preventing them from using self-help and destroying the momentum of strikes before substantive legal rights were litigated." Burlington Northern Santa Fe R. Co. v. Int'l Brotherhood of Teamsters Local 174, 203 F.3d 703, 707 (9th Cir.2000) (en banc).37

In response, Congress enacted the Clayton Act in 1914, including Section 20, which provides certain substantive and procedural limitations on injunctions sought in any case "involving, or growing out of, a dispute concerning terms or conditions of employment." 38 Stat. 738 (codified at 29 U.S.C. § 52). The Supreme Court, however, gave a narrow reading to the provisions protecting labor. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 469-73, 41 S.Ct. 172, 65 L.Ed. 349 (1921). It confined Section 20 so as to not prohibit injunctions against "secondary boycotts" as opposed to "primary boycotts." Id. at 474-79, 41 S.Ct. 172.

Accordingly, Congress enacted the Norris-LaGuardia Act, which did not just impose substantive limits on, or procedural conditions for, such injunctions. See generally Burlington Northern Santa Fe R. Co., 203 F.3d at 706-09 (providing extensive historical background of the Norris-LaGuardia Act). Rather, Congress took the "extraordinary step" of withdrawing the jurisdiction of federal courts from issuing injunctions in non-violent labor disputes because it "was necessary to remedy an extraordinary problem" of federal courts refusing "to abide by the clear command of § 20 of the Clayton Act." Burlington Northern R.R. v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 437, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987). The legislative history discloses that it was necessary to remedy the "`disobedience of the law,'" not on the part of "`organized labor,'" but "`on the part of a few Federal judges'" who refused to administer "even justice to both employers and employees." Id. at 438-39, 107 S.Ct. 1841 (quoting 75 Cong. Rec. 5478 (1932)).

(b) Prohibitions and Limitations of the Norris-LaGuardia Act

The Act imposes several different limitations on the authority of federal courts to issue injunctive relief in labor disputes. Section 1 states the general prohibition against federal courts issuing injunctive relief "in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter," and also permits injunctions only where not "contrary to the public policy declared in this chapter." 29 U.S.C. § 101. Section 2 then expressly declares the Act's policy—to facilitate employees' ability to organize into unions and bargain collectively with employers:

29 U.S.C. § 102. "`The Norris-LaGuardia Act . . . expresses a basic policy against the injunction of activities of labor unions.'" Burlington Northern R.R. v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 437, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987) (quoting Machinists v. Street, 367 U.S. 740, 772, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961)).38 But this Court need not and does not solely rely on this express pro-labor policy of the Act in order to conclude that it does not preclude an injunction against the League here.

Section 104 of the Act enumerates specific acts that are not subject to restraining orders or injunctions under any circumstances. 29 U.S.C. § 104. Section 104 expressly deprives, from federal courts, jurisdiction to issue any injunctive relief "in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of" nine enumerated acts. Id. Of those nine, the League relies on the first: "[c]easing or refusing to perform any work or to remain in any relation of employment." Id. § 104(a).

As the NFL observes, Section 4(a) of the Norris-LaGuardia Act "`forbids courts to enjoin work stoppages `in any case involving or growing out of any labor dispute.'" (Doc. No. 34, at 18 (Mem. at 10) (quoting West Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 726 (5th Cir.1985)).)39 There is no dispute that the plain language of this provision covers employees' right to strike. West Gulf Maritime Ass'n, 751 F.2d at 726 (vacating injunction against work stoppage by longshoreman's union).

It is not as clear that Section 4(a) could also cover, as the NFL argues, an employer's right to lock out its employees. As the Players note, they "are requesting an injunction so that they can work." (Doc. No. 41, at 17 (Mem. at 12) (emphasis in original).) As the NFL correctly contends, the "Act was meant to `end the granting of injunctions . . . based upon complaints charging conspiracies to violate the Sherman Antitrust Act.'" (Doc. No. 34, at 18 (Mem. at 10) (quoting Milk Wagon Drivers' Union, Local No. 753 v. Lake Valley Farm Prods., 311 U.S. 91, 101, 61 S.Ct. 122, 85 L.Ed. 63 (1940)).) But in Milk Wagon Drivers' Union, the Supreme Court ruled that the Act precluded an injunction against a local union and its officials. 311 U.S. at 93-94, 61 S.Ct. 122. In fact, the Supreme Court recounted the history of some federal courts ignoring Section 20 of the Clayton Act, such that its restrictions "have become more or less valueless to labor." Id. at 102, 61 S.Ct. 122.40

As Justice Frankfurter ruled in addressing a comparable issue under the National Labor Relations Act, which was enacted in 1935 just a few years after the Norris-LaGuardia Act,

Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 185-86, 61 S.Ct. 845, 85 L.Ed. 1271 (1941) (emphasis added). In rejecting the proposed interpretation offered by the employer, the Court stated that "[c]ontemporaneous legislative history, and above all, the background of industrial experience forbid such textual mutilation." Id. at 186, 61 S.Ct. 845. As Judge Doty observed in Jackson, "[i]t would be ironic if a statute that had been enacted to protect the rights of individual employees from improper actions by employers and the courts were turned against those employees and used to justify the continued application of a system found illegal under the Sherman Act." 802 F.Supp. at 233.

Here, as discussed in greater detail above, the Norris-LaGuardia Act was enacted to protect labor from the injunctions that some federal courts were granting to employers despite Section 20 of the Clayton Act. This Court is not convinced that the Act should be extended or interpreted to protect the NFL under its reading of Section 104(a). But this Court need not rely on its reading of the plain language of Section 104(a) to issue the injunction requested by the Players here, because this Court concludes that the Norris-LaGuardia Act does not apply here at all, now that the Union has effectively renounced its status as the Players negotiating agent.41

(c) The Norris-LaGuardia Act, Although Broad, Governs Labor Disputes

The League's argument that the Act prohibits the requested injunction is entirely dependent on its contention that the present dispute—between itself and the individual Players—is still one involving collective bargaining governed by the federal labor laws. But the CBA has expired and the Union effectively disclaimed its status as the Players' representative for purposes of negotiating labor disputes with the League. The League contends, quite accurately, that the definition of "labor dispute" under the Norris-LaGuardia Act, like that under the Labor Management Relations Act, is quite broad. Under the Norris-LaGuardia Act, a

29 U.S.C. § 113(c).42

In particular, the League contends that the present dispute between it and the Players either involves a "labor dispute" or at least "`grows out of' a `labor dispute.'" (Doc. No. 34, at 19-22 (Mem. at 11-14).) The NFL claims that the Union's "purported disclaimer also does nothing to change the origins of this action," that is, that the present action by the individual Players after their Union disclaimed any further role as their agent in collective bargaining is one that "`grow[s] out of' a labor dispute." (Id. at 21 (Mem. at 13) (emphasis in original).)

But the broad definition of a "labor dispute" has uniformly been interpreted by the courts as a dispute between a union and employer, or contextually, in relation to such a dispute. The League has identified no legal support for its attempt to place a temporal gloss on that definition, that is, to extend the Act's application not only to parties other than the employer and the union and its member employees at the time a union exists, but also to the realm of non-labor employment disputes after a union ceases to exist as the employees' collective bargaining agent. To propose, as the NFL does, that a labor dispute extends indefinitely beyond the disclaimer of union representation is fraught with peril. For example, in light of the fact that employees come and go over time, it would be patently unfair to impose labor law restrictions or conditions upon employees who began working for the employer only after a union had disclaimed representation of other employees. Similarly, if an employer was in a dispute with its unionized employees over wages or conditions of employment, and the union then disclaimed representation, the dispute would still be governed, under the League's analysis, by labor law for weeks or months, if not years, after the disclaimer.43

Congress employed its broad definition not to reach conduct by individual employees who have rejected their union as their bargaining agent under labor law, but to reach both "primary activity"—that is, where a union directs pressure against its members' own employer—and "secondary activity"—where a union directs pressure against third parties. Burlington Northern Santa Fe R. Co. v. Int'l Brotherhood of Teamsters Local 174, 203 F.3d 703, 708 (9th Cir.2000) (en banc) (explaining that Congress intended to reject the narrow reading of the Clayton Act provided by the Court in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921)).

There is no dispute that where a union is engaged in a dispute with management, the Norris-LaGuardia Act extends beyond those two parties to also encompass those that are not in the immediate relation of employer and employee. Thus, if an organization of fans had picketed the League's premises—while the League and the Union were still negotiating under the collective bargaining umbrella—demanding that the League concede on an issue of free agency, the League might have an argument that the Norris-LaGuardia Act precluded any injunction against those fans.

But here, the Players are not third parties tangential to an ongoing labor dispute so as to be governed by the Act. Rather, the Players—now individual employees (or prospective employees) after having disclaimed their Union—have proceeded outside of the framework of labor law. Cf. Jackson v. National Football League, 802 F.Supp. 226, 233 (D.Minn.1992) (holding that Norris-LaGuardia Act no longer applies to preclude injunctive relief after court concludes that "any bargaining relationship between players and defendants ended").44 Thus the Players presently are in the same legal position as employees who are not, and never were, represented by a union. This Court is not convinced that the Norris-LaGuardia Act applies, absent the present existence of a union, so as to prohibit or condition injunctions.

The NFL relies on several cases that it claims support the proposition that the Act prohibits an injunction here in favor of the Players and against the League's "lockout." (Doc. No. 34, at 21-22 (Mem. at 13-14); Doc. No. 75, at 9-10 (Mem. at 4-5).)45 But even assuming that Section 4(a) extended to protect lockouts in addition to strikes, none of these cases hold that employees may not obtain injunctive relief against their employers after those employees renounce their collective bargaining agent and proceed as individuals against their employers for those employers' concerted refusal to deal with those employees. Indeed, by phrasing the issue in terms of whether the present dispute "grows out of a labor dispute," the NFL fails to offer support or authority for the crucial temporal extension of the definition of "labor dispute" that it proposes.

Similarly, the League contends that "courts have found that the Act bars injunctions in cases in which no union is involved at all." (Doc. No. 34, at 21 (Mem. at 13).) But the Supreme Court's 1938 decision in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012 (1938), on which the League relies for this assertion, does not so hold.46 It only held that the Norris-LaGuardia Act's prohibition against injunctions—consistent with the statutory definition's broad but not unlimited reach—extends beyond the immediate employer-employee relationship to also preclude an injunction against an organization of African-Americans that was picketing the employer, but had no relationship with the employees other than its desire to advance the cause of jobs for African-Americans.

Nor do the cases where injunctions against employers were prohibited provide authority that the Players cannot now pursue injunctive relief against the League. For example, in Chicago Midtown Milk Distributors, Inc. v. Dean Foods Co., the Seventh Circuit addressed an antitrust action brought by non-retail purchasers of dairy products (who then resold them) against two dairy producers, Dean Foods Company and Borden, Inc. 1970 WL 2761, at *1 (July 9, 1970). In a brief, unpublished, per curiam opinion, the Seventh Circuit only concluded that the record was nonetheless sufficient to conclude "that the plaintiffs are at the least indirectly involved in the labor dispute currently existing between the union" and a third seller, Sidney Wanzer & Sons, which then "spread to include Dean and Borden by reason of the latters' lockout as a countermeasure against the strike of Wanzer by" the local union. Id. (emphasis added).47 Hence, Midtown Milk is clearly distinguishable because the plaintiffs there were involved, albeit indirectly, in a labor dispute involving a union.

Likewise, the NFL, relies on Automobile Transport Chauffeurs, Etc. v. Paddock Chrysler-Plymouth, Inc., but that case concerned an injunction under the Boys Markets exception to the Norris-LaGuardia Act. 365 F.Supp. 599, 601-02 (E.D.Mo. 1973).48 Thus—contrary to the NFL's contention that the Automobile Transport Chauffeurs court "held that the Norris-LaGuardia Act prohibits a court from entering an injunction against a lockout" (Doc. No. 75, at 9 (Mem. at 4))—the court instead denied the injunction not because the Norris-LaGuardia Act prohibited it, but simply because "the plaintiff has not met the requirements for injunctive relief against concerted activity as provided by Section 7 of the Norris-LaGuardia Act and Section 301(a) of the Labor Management Relations Act as interpreted by the United States Supreme Court in Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970)." 365 F.Supp. at 601-02.49

The other cases on which the NFL relies also are confined to situations where a labor dispute presently existed and the courts simply applied the Norris-LaGuardia Act's broad language to also encompass individuals or entities beyond those that were the immediate parties to the labor dispute, that is, the employer and employees. In Plumbers & Steamfitters Local 598 v. Morris, the court likewise addressed an antitrust action by a union and its employees against their employers and a multiemployer collective bargaining agent. 511 F.Supp. 1298, 1303 (E.D.Wash.1981). There, the court concluded that, under the circumstances, "any indirect effect on competition" fell "within the context of a collective bargaining relationship," such that "Defendants would be entitled to claim [the] nonstatutory exemption." Id. at 1307 & n. 4.50 The court found that the plaintiffs "would not be entitled to an injunction" because "this case grows out of a labor dispute as defined in the Norris-LaGuardia Act." Id. at 1311. There, the dispute was plainly in the context of an ongoing labor dispute— that is, a dispute (1) between on the one hand, a union and the employees it represented, and on the other hand, their employers and the multi-employer bargaining agent, and (2) within the context of a collective bargaining agreement. Id. at 1303-04 (explaining relationships between the plaintiffs and defendants and other non-party employers and employer representatives, and that parties had reached a point where the goal of collective bargaining had been "postponed").51

In sum, the League provides this Court with no controlling or even persuasive authority for its assertion that the Norris-LaGuardia Act continues to apply in the post-collective bargaining, post-union world of employment law. Any such argument would seem to run headlong into the right of employees, seemingly without exception or limitation, to choose not to organize into a union, or having been once represented by a union, to decertify that organization or otherwise disclaim its function as their negotiating agent. In fact, Judge Doty, in this district, came to the same conclusion in 1992. Jackson v. Nat'l Football League, 802 F.Supp. 226, 233 (D.Minn.1992) (concluding that the Norris-LaGuardia Act "does not preclude injunctive relief in the present case because such relief will not undermine any labor policy set forth in the Act," once the bargaining relationship ended). This Court is, of course, not the first to have issued injunctive relief against the NFL despite its objections that such relief was precluded by the Norris-LaGuardia Act. White v. NFL, 766 F.Supp.2d 941, 953, 2011 WL 706319, *11 (D.Minn. Mar. 1, 2011) (remanding for consideration of injunctive relief in action alleging League violated SSA with respect to broadcast contracts); NFLPA v. NFL, 598 F.Supp.2d 971, 978 (D.Minn.2008) (extending preliminary injunction, over NFL's Norris-LaGuardia argument, against suspensions of players for alleged violations of drug policy); Mackey v. NFL, 543 F.2d 606, 622-23 (8th Cir.1976) (affirming judgment awarding injunctive relief, over NFL's Norris-LaGuardia argument, that was sought by the players to set aside the Rozelle Rule as an unreasonable restraint of trade).

Accordingly, this Court holds that the Norris-LaGuardia Act does not apply to the present dispute between the League and the Players, now that the Players have effectively and unequivocally elected to disband the Union and proceed individually, rather than under the labor law umbrella of collective bargaining. Thus, this Court possesses subject-matter jurisdiction over the dispute, and the Norris-LaGuardia Act does not remove this Court's jurisdiction to award the Players the injunctive relief they presently seek.

B. A Preliminary Injunction Under Rule 65 Is Necessary To Prevent The Irreparable Harm To The Players

As addressed above, this Court has jurisdiction of the overall dispute and there is no need to refer any issue to the NLRB. Having satisfied itself that the Norris-LaGuardia Act does not remove its jurisdiction to award injunctive relief here, this Court now addresses whether the Players' motions for a preliminary injunction are warranted under Rule 65.52

At the outset, this Court clarifies that the present motion for injunctive relief differs from that in a typical case in which a plaintiff seeks a preliminary injunction. For example, in a patent infringement action, in which the claim, of course, is that the defendant is infringing the plaintiff's patent, the patentee might seek a preliminary injunction enjoining the alleged infringer from selling or distributing the infringing products. In order to grant the motion for a preliminary injunction, the court must assess the patentee's likelihood of success on its claim of infringement.

Here, however, the injunctive relief requested here is limited and does not extend to the majority of the underlying claims. In the present motion, the Brady Plaintiffs are not asking this Court to enjoin the NFL's Player restrictions that are alleged to violate the Sherman Act. Rather, the Brady Plaintiffs only ask this Court to enjoin the League's lockout.

A preliminary injunction "is an extraordinary remedy never awarded as a matter of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). In Planned Parenthood Minnesota v. Rounds, the en banc Eighth Circuit clarified the analysis for preliminary injunctive relief. 530 F.3d 724 (8th Cir.2008) (en banc). The court noted that under its earlier en banc decision in Dataphase Systems, Inc. v. C L Systems, Inc., issuance of preliminary injunctive relief

Rounds, 530 F.3d at 729 (citing 640 F.2d 109, 113 (8th Cir.1981) (en banc)). With respect to succeeding on the merits, the Rounds court clarified that unless the movant is seeking to enjoin "government action based on presumptively reasoned democratic processes," courts "should still apply the familiar `fair chance of prevailing' test." Id. at 732. The "fair chance" standard is less demanding than the "likely to prevail" standard applicable to injunctions sought against governmental action such as a statute, and a "fair chance of prevailing" does not require a greater than fifty per cent likelihood of prevailing on the merits. See Rounds, 530 F.3d at 731 (quoting Dataphase, 640 F.2d at 113).53

The other key factor in any analysis of preliminary injunctive relief is, of course, irreparable harm. Chicago Stadium Corp. v. Scallen, 530 F.2d 204, 206 (8th Cir.1976). Indeed, "`[t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.'" Rounds, 530 F.3d at 732 n. 5. Thus, lack of irreparable harm will preclude preliminary injunctive relief regardless of the other factors. Dataphase, 640 F.2d at 114 n. 9 ("[T]he absence of a finding of irreparable injury is alone sufficient ground for vacating the preliminary injunction."). Therefore, to warrant a preliminary injunction, the moving party must demonstrate a sufficient threat of irreparable harm. Bandag, Inc. v. Jack's Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir.1999) (per curiam); see, Winter, 555 U.S. at ___, 129 S.Ct. at 375-76 (explaining that its "frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction" (emphasis in original)).

Beyond these two key factors of irreparable harm and success on the merits, the other two relevant factors are the balance between that harm and the harm injunctive relief would cause to the other litigants and the public interest. Dataphase, 640 F.2d at 114; accord Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.2003) (quoting Dataphase). The League contends that none of the four factors relevant to the decision to award preliminary injunctive relief favor the Plaintiffs. (Doc. No. 34, at 36 (Mem. at 28).) This Court disagrees.

In applying these factors, this Court must "flexibly weigh the case's particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene." Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 601 (8th Cir.1999). The burden of establishing the four Dataphase factors lies, of course, with the party seeking injunctive relief. Watkins, 346 F.3d at 844.

1. The Players Have Demonstrated They Are Suffering, And Will Continue To Suffer, Irreparable Harm

Here, even on the present preliminary record, the Brady Plaintiffs have shown not only that they likely would suffer irreparable harm absent the preliminary injunction, but that they are in fact suffering such harm now.54 "Irreparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages." Gen. Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312, 318-19 (8th Cir.2009).

The NFL argues that the Players will not suffer irreparable harm in the absence of injunctive relief. While strenuously arguing that the non-statutory labor exemption bars Plaintiffs' antitrust claims, the NFL contends that if, however, the antitrust laws do apply, the availability of treble damages will adequately compensate Plaintiffs. Focusing on Plaintiffs' alleged economic injuries, the NFL argues that any deprivation of contracted salaries or bonuses is "obviously compensable in monetary damages." (Doc. No. 34, at 51 (Mem. at 43).) As to Plaintiffs' alleged non-economic injuries, the NFL impliedly argues that the Players will suffer no harm from career-ending injury or physical wear and tear, if they are locked out of the season. (Id.) Finally, the NFL contends that there is no merit to the Players' claim that "they face immediate irreparable harm in not being able to practice with or work out with their teammates." (Id. at 52 (Mem. at 44).)

This Court finds the NFL's arguments unpersuasive. The Court recognizes that the employment relationship between the parties reflects a commercial enterprise producing substantial income for both parties. But the particular facts of this case refute any argument that damages alone would suffice to compensate the Players if this Court were not to issue such injunctive relief.

As recognized by the district court in the parties' earlier litigation in this district, the various restrictions imposed by the League over the several decades of this on-going dispute often inflict irreparable injury on the Players. Nat'l Football League Players Ass'n v. Nat'l Football League, 598 F.Supp.2d 971, 982 (D.Minn. 2008); Jackson v. Nat'l Football League, 802 F.Supp. 226, 231 (D.Minn.1992); see also Powell v. Nat'l Football League, 690 F.Supp. 812, 818 (D.Minn.1988) (denying injunctive relief for unrestricted free agency rules, but finding that at least some of the players would likely suffer irreparable injury as a result of the NFL's restriction). Specifically as to professional football players, this Court has found that "[t]he existence of irreparable injury is underscored by the undisputed brevity and precariousness of the players' careers in professional sports, particularly in the NFL." Jackson, 802 F.Supp. at 231 (citing Linseman v. World Hockey Ass'n, 439 F.Supp. 1315, 1319 (D.Conn.1977)) ("[T]he career of a professional athlete is more limited than that of persons engaged in almost any other occupation. Consequently the loss of even one year of playing time is very detrimental.").

Moreover, this Court has observed that the threat of irreparable harm has been found, and preliminary injunctive relief granted, in cases in which professional athletes' ability to play, or to play for their team of choice, was threatened. Id. (citing McCourt v. California Sports, 460 F.Supp. 904, 912 (E.D.Mich.1978) (enjoining operation of player reserve system and finding that hockey player suffered irreparable harm when he was traded as compensation for another player), vacated on other grounds, 600 F.2d 1193 (6th Cir.1979); Linseman, 439 F.Supp. at 1319-20 (granting injunctive relief and finding that money could not adequately compensate player for the loss of his ability to play professional hockey for one season); Bowman v. National Football League, 402 F.Supp. 754, 756 (D.Minn.1975) (recognizing players suffered irreparable harm when the NFL's boycott of former World Football League players prevented them from playing); Denver Rockets v. All-Pro Management, Inc., 325 F.Supp. 1049, 1057 (C.D.Cal.1971) (enjoining NBA rule that prohibited players from signing with NBA until four years after high school graduation and recognizing that "a professional basketball player has a very limited career")).

Once again, the threat of harm shown by the Brady Plaintiffs here, including lost playing time, constitutes irreparable harm. Declarations submitted by the Brady Plaintiffs in support of the instant motion attest to the likelihood of both collective and individualized harm occasioned by a lockout. Richard Berthelsen, the NFLPA's General Counsel, contends that this harm is not fully compensable by damages, due to the relatively short careers of most NFL players. (Berthelsen Decl. ¶ 29.) Moreover, players' unique abilities and circumstances compound the difficulty in determining the salary and benefits that each player might have earned in a competitive market. (Id.) A common refrain in the declarations offered by the Brady Plaintiffs' agents and others is that the careers of NFL players are of short duration, typically less than four years. (Bauer Decl. ¶ 11; Agnone Decl. ¶ 9; Berthelsen Decl. ¶ 30; Condon Decl. ¶ 12; Cornrich Decl. ¶ 7; McElroy Decl. ¶ 13; Schwartz Decl. ¶ 14.)

Plaintiffs contend that the brevity of professional football players' careers is due to both the ever-present risk of career-ending injury and the constant physical wear and tear on players' bodies—risks faced by every NFL player. (Id.) In addition, Plaintiffs maintain that they must constantly demonstrate their skill and value on the practice and playing fields. (Bauer Decl. ¶ 12; Agnone Decl. ¶ 10; Berthelsen Decl. ¶ 31; Condon Decl. ¶ 14; Cornrich Decl. ¶ 8; McElroy Decl. ¶ 14; Schwartz Decl. ¶ 15.) Because of this constant pressure to prove their physical and economic worth, Plaintiffs submit that the loss of an entire year in a short professional athletic career cannot be recaptured. (Bauer Decl. ¶ 12; Agnone Decl. ¶ 10; Berthelsen Decl. ¶¶ 31 35; Condon Decl. ¶ 13; Cornrich Decl. ¶ 8; McElroy Decl. ¶ 14; Schwartz Decl. ¶ 15; Decl. of Donald Yee ¶ 8.) Moreover, time spent off the playing and practice fields diminishes players' skills. (Bauer Decl. ¶ 12; Agnone Decl. ¶ 10; Berthelsen Decl. ¶ 31; Condon Decl. ¶ 13; Cornrich Decl. ¶ 8; Schwartz Decl. ¶ 15; Yee Decl. ¶ 8.) In the course of sitting out a season, this diminishment in skills could shorten or end the careers of some players. (Agnone Decl. ¶ 10; Condon Decl. ¶ 13; Cornrich Decl. ¶ 8; McElroy Decl. ¶ 14; Schwartz Decl. ¶ 15.) Thus, there is no dispute that, based on the typically short duration of their professional careers and the constant risk of injury, Plaintiffs have shown it likely that they will suffer irreparable harm if injunctive relief is not granted.

Plaintiffs have also demonstrated the threat of more particularized irreparable harm related to their status as free agents, under-contract players, or rookies. Plaintiffs Vincent Jackson, Logan Mankins, Peyton Manning, Ben Leber and Mike Vrabel, are not under the terms of a current contract, and are ostensibly free agents. An unrestricted free agent is free to negotiate and sign with any team in the NFL—a status which typically entails more competition for a player's services, and therefore, higher compensation. (See McElroy Decl. ¶ 7.) Under a lockout, however, these five free agent players are in a state of contractual limbo, unable to negotiate a contract with any team. The employment contracts for Jackson, Mankins, Manning, Leber and Vrabel expired on March 3, 2011. (See Schwartz Decl. ¶ 11; Bauer Decl. ¶ 6; Condon Decl. ¶¶ 3-4; McElroy Decl. ¶¶ 3, 7; Cornrich Decl. ¶¶ 4-5.) However, just a few weeks prior to the expiration of three of these five players' contracts, their respective teams sought to change the players' status. Peyton Manning received a letter from his team, the Indianapolis Colts, in February 2011, purporting to designate him an "Exclusive Franchise Player" under the CBA, which would restrict him from signing a contract with any other NFL team for 2011 season. (Condon Decl. ¶ 4.) Players Jackson and Mankins received similar letters in February from their respective teams, purporting to designate them as "Franchise Players" under the CBA.55 (Schwartz Decl. ¶ 11; Bauer Decl. ¶ 6.)

The facts as to Jackson and Mankins present a particularly compelling showing of the threat of irreparable harm. Both Jackson and Mankins, 2005 rookies, had hoped to become unrestricted free agents in 2010, but due to the NFL's opting out of the CBA in 2008, the NFL's unrestricted free agency period was increased to six years. In light of the NFL's rule change, Jackson and Mankins ultimately became restricted free agents. (See Schwartz Decl. ¶ 6; Bauer Decl. ¶ 5.) Mankins' agent contends that "the opt-out locked Mr. Mankins into a tender system of restricted free agency for the 2010 NFL season under which the Patriots [Mankins' team] enjoyed the unilateral option to retain Mr. Mankins' services under a one-year contract at cost substantially below market value." (Bauer Decl. ¶ 5.)

Jackson, a 2010 restricted free agent, was similarly unable to negotiate with any teams other than the San Diego Chargers, for whom he had played since he was drafted in 2005. (Schwartz Decl. ¶ 7.) The Chargers tendered a one-year contract, reduced to the absolute minimum amount of $682,000 for the 2010 season. Ultimately, Jackson filed a grievance against the Chargers, which was resolved by a settlement permitting Jackson to seek offers from other teams, subject to the Chargers and the other team working out a trade. (Id. ¶ 8.) Jackson subsequently negotiated a two-year tentative agreement with the Minnesota Vikings in which he would receive $8 million, prorated for the number of games played in the 2010 season, and $10 million in the 2011 season. The Vikings would also have agreed to no further restrictions on Jackson at the end of that period. (Id. ¶ 9.) However, because the Chargers refused to trade Jackson, he signed the Charger's minimum tender offer in order to ensure his status as a free agent at the end of the 2010 season. (Id. ¶ 10.) Jackson, who was the most valuable receiver for the Chargers for the remainder of the 2010 season, received $280,824 in base salary for the number of games played in the season. (Id.)

Even if Manning, Mankins and Jackson are limited to negotiating with their most recent respective teams, they, like Leber and Vrabel, have shown that, under a lockout, they are unable to negotiate and market their services in any respect. A lockout "deprives them of new contracts that would be negotiated in a free market, whose precise terms will be impossible to recreate." (Schwartz Decl. ¶ 16; Bauer Decl. ¶ 13; Cornrich Decl. ¶ 9.) Therefore, there can be no real dispute that all of the free agent players—Jackson, Leber, Mankins, Manning and Vrabel—have demonstrated a sufficient threat of irreparable harm warranting the issuance of injunctive relief.

In addition to the free agent Plaintiffs, rookie players contend that they face particular harms unique to their status as entering players. Entering players who are forced to forego a season, will, Plaintiffs contend, "miss out on a year of experience and exposure that comes from playing against NFL-level competition and receiving NFL-level coaching, both of which are a must for young players." (Berthelsen Decl. ¶ 32.) Moreover, they maintain that if the 2011 season is canceled, rookies will be an unfair disadvantage when they must compete subsequently against a new group of rookies who have had the benefit of a full season's worth of active competition. (Id.; Doc. No. 8 (Decl. of John Branion) ¶ 11.) In addition, the loss of a year in a young player's career may diminish that player's value in the future, as "[y]oung players often maximize their value by negotiating extensions of their current contracts before they reach free agency." (Berthelsen Decl. ¶ 32; Branion Decl. ¶ 15.)

Plaintiff Vonn Miller, a college football player at Texas A & M, has chosen to enter the 2011 NFL draft and, as an All-American 2010, All-Big 12 honoree and Butkus Award 2010 recipient, his agent avers that he is likely to be one of the first players selected. (Branion Decl. ¶ 7.) Under a lockout, Miller's agent attests that his client will not only lose the experience of NFL-level competition and coaching, but, by foregoing training camp, Miller risks losing the opportunity of becoming a starting player, or even to make the team. (Branion Decl. ¶ 11.) Thus, it is clear that Plaintiffs have demonstrated a threat of irreparable harm as to rookie players.

Finally, the under-contract Plaintiffs—Tom Brady, Drew Brees, Brian Robison and Osi Umenyiora—contend that they face particular harms as well. Mr. Umenyiora, a defensive end, was selected to the Pro Bowl in 2005 and 2007, was a member of the New York Giants Superbowl championship team, and in, 2010, set the NFL record for most forced fumbles in a single season. (Agnone Decl. ¶ 3.) Because his current contract with the Giants runs through the 2012 season, Umenyiora's agent attests that the 2011 season is a critical season, both in terms of Umenyiora's performance and his ability to negotiate the terms of his next contract at a time when he most marketable. (Id. ¶ 11.) This lost opportunity, he contends, is irreparable. (Id.) Players Brady, Brees and Robison also point to Defendants' refusal to pay amounts owed under their respective contracts and the refusal to allow them to report to work in support of their showing of irreparable harm. (Yee Decl. ¶ 9; Condon Decl. ¶ 15; McElroy Decl. ¶ 16.)

In sum, the Brady Plaintiffs have met their burden of showing that it is likely that they will suffer irreparable harm absent the preliminary injunction. The facts of this case, and similar decisions by this Court and others, refute Defendants' argument that money damages alone would sufficiently compensate Plaintiffs if this Court were not to issue injunctive relief.

2. The Irreparable Harm To The Players Outweighs Any Harm An Injunction Would Cause the NFL

A related Dataphase factor requires this Court to balance the harm alleged by Plaintiffs against the harm an injunction would cause other parties. Rounds, 530 F.3d at 729 (citing Dataphase, 640 F.2d at 113). The NFL argues that the balance of harms weighs in their favor, because if the Court grants the requested injunction, the NFL "undoubtedly would be subject to additional antitrust claims." (Doc. No. 34, at 53 (Mem. at 45) (citing Ruocco Decl. ¶ 5).)

But the requested injunction at issue is confined solely to the NFL's lockout. This Court is not addressing the merits of the Players' other antitrust claims—those regarding Player restraints. This Court is not presently addressing whether the non-statutory antitrust exemption would still apply, after the NFLPA's unequivocal disclaimer of representation, to the mandatory terms of collective bargaining, that is, the terms and conditions of the Players' employment. And in issuing a preliminary injunction against the lockout, this Court is, of course, only ruling that the Brady Plaintiffs have a fair chance of prevailing on that particular claim. Such an injunction is not an adjudication that the NFL is liable for any antitrust violation.

The NFL's argument that an order of this Court enjoining the lockout will cause the League harm because such an order will necessarily expose them to antitrust liability is unpersuasive. Insofar as such liability would flow from the League's lockout violating the Sherman Act, the League cannot predicate harm on the results of its illegal conduct. Insofar as such liability would flow from the League being found liable on the other claims of the Brady Plaintiffs' Complaint, the alleged harm is entirely speculative as this Court is not presently addressing those claims.

The League also contends that "an injunction would lead" to "the more favorably situated teams signing the best players" and thus "harm the NFL by destroying the competitive balance that is essential" to its business. (Doc. No. 34, at 54-55 (Mem. at 46-46).) But again, that argument rests on the misconception that an injunction against the lockout addresses the merits of the Players' antitrust claims regarding the various Player restraints such as "`restrictions on player free agency.'" (Id. (quoting Complaint, ¶ 132).) This Court is not presently addressing the merits of the antitrust claims regarding Player restrictions and is not ruling on whether the non-statutory labor exemption shields the League from such claims.

3. The Players Have Established A Fair Chance of Success on The Merits

As noted above, where, as here, the movant has made a strong showing of irreparable harm, and that such injury plainly outweighs that which would be imposed on the other party if the injunction is granted, the movant need only show that they have a "fair chance of prevailing" on their claims. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir.2008). Obviously, "[a]n injunction cannot issue if there is no chance on the merits." Mid-Am. Real Estate Co. v. Ia. Realty Co., 406 F.3d 969, 972 (8th Cir.2005). The question is not, however, whether Plaintiffs have "prove[n] a greater than fifty percent likelihood that [they] will prevail," PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137, 1143 (8th Cir.2007), but rather whether any of their claims provide a "fair ground for litigation," Watkins, 346 F.3d at 844. "In considering the likelihood of the movant prevailing on the merits, a court does not decide whether the movant will ultimately win." PCTV Gold, 508 F.3d at 1143.

And as discussed in Section II.A, there are no jurisdictional impediments to this action. This Court need not defer to the NLRB to conclude that the Union's disclaimer, having been unequivocal and made in good faith, is effective to remove this action from the reach of the Norris-LaGuardia Act.

The NFL argues that the Brady Plaintiffs cannot show a likelihood of success on the merits because: (1) the nonstatutory labor exemption protects lockouts by multiemployer bargaining units; (2) the exemption continues to apply until the challenged conduct is sufficiently distant in time and in circumstances from the collective bargaining process; (3) the exemption protects the challenged lockout from antitrust scrutiny; and (4) Plaintiffs' `waiver' argument lacks merit. (Doc. No. 34 at 10-12 (Mem. at 2-4).)

As clarified above, although the Brady Plaintiffs' Complaint asserts that various restrictions imposed by the NFL on the Players violate the Sherman Act (and that the NFL has breached certain contractual obligations), the injunctive relief requested here does not extend to the merits of most of those claims. (Doc. No. 1 (Complaint) ¶¶ 116-60 (asserting three Sherman Act claims, one claim for breach of contract, two claims for tortious interference with existing or prospective contractual relations, and one declaratory judgment claim).) Rather, the Players' motion is confined to a very precise and narrow issue regarding only one of the antitrust claims—whether the NFL may lock out the Players after the NFLPA disclaimed its role in serving as their collective bargaining agent.

In ruling upon that request for injunctive relief, this Court need not—and does not—address whether the non-statutory labor exemption still applies so as to shield the NFL from the Players' other antitrust claims, that is, those regarding the various restraints the League imposes on the Players. Resolution of the issue of whether the exemption precludes relief on the NFL's various Player restraints must await another day. As the Supreme Court explained in Jewel Tea, that exemption protects from antitrust scrutiny, in the context of a labor dispute, only agreements that address the terms and conditions subject to mandatory collective bargaining. The present motion requires this Court only to address whether that exemption protects the League's lockout.

The Players allege that the lockout itself violates Section 1 of the Sherman Act. (Doc. No. 1 (Complaint, Count I) ¶¶ 116-24.) As the Players contend, the NFL's lockout "constitutes an agreement among competitors to eliminate competition for the services of major league professional football players" in the relevant United States market, which operates "as a perpetual horizontal group boycott and price-fixing agreement" that is either a per se violation of Section 1 or, under the Rule of Reason, a concerted refusal to deal that constitutes an unreasonable restraint of trade. (Id. ¶¶ 117-20.)

As the Brady Plaintiffs observe, the NFL does "not contest that their `lockout' is a per se unlawful group boycott and price-fixing agreement in violation of antitrust law." (Doc. No. 41, at 6 (Mem. at 1).) Rather, the NFL's defense is confined to their argument that the non-statutory labor exemption from antitrust liability continues to protect the League because the NFLPA's disclaimer was invalid and ineffective and that resolution of that issue is for the NLRB and not this Court. Because this Court has disposed of those arguments, the NFL presently has identified no defense against Count I of the Brady Plaintiffs' Complaint. That the policies and decisions of the individual teams constitute "concerted action" seems plain. Cf. American Needle, Inc. v. National Football League, ___ U.S. ___, 130 S.Ct. 2201, 2212-17, 176 L.Ed.2d 947 (2010). Accordingly, the Brady Plaintiffs have established the requisite fair chance of success on the merits of their claim in Count I that the lockout now constitutes a violation of Section 1 of the Sherman Act.

As discussed above with respect to the validity of the Union's disclaimer, the League's reliance on Brown for the proposition that the exemption still applies is misplaced. Brown concerned an impasse occurring within the context of a collective bargaining relationship that likely could continue. Here, in contrast, the parties have left the collective bargaining framework entirely. Although it remains to be decided whether the nonstatutory labor exemption still applies to protect the League from antitrust claims regarding player restraints, it is clear that the holding of Brown, which is confined to impasse, offers no absolute shield against such claims.

Both the Supreme Court in Brown and the Eighth Circuit in Powell, while rejecting impasse as the point where the labor exemption terminates, nevertheless recognized that the exemption does not extend ad infinitum. Brown v. Pro Football, 518 U.S. 231, 250, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996) ("Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers."); Powell, 930 F.2d 1293, 1303 (8th Cir.1989) (rejecting view that once a collective bargaining agreement is entered, "management is forever exempt from the antitrust laws"). Moreover, the Supreme Court noted that the court below had suggested that the exemption ends upon "collapse of the collective-bargaining relationship, as evidenced by decertification of the union." Brown, 518 U.S. at 250, 116 S.Ct. 2116.

And as Judge Doty ruled in McNeil, once the union disclaims its role as the bargaining agent for its members or formally obtains decertification, the protection provided employers by the non-statutory labor exemption is lifted. 764 F.Supp. 1351, 1357-58 (D.Minn.1991). Although Judge Doty was not addressing the issue of a lockout, the factual context in which he was ruling provides no basis to distinguish his decision because, under his broad ruling, the exemption is lifted entirely. The fact that substantial time had passed in McNeil since the Union's disclaimer is not controlling here, because Judge Doty did not condition his ruling on the legal effect of disclaimer based on any such temporal restrictions.

Moreover, as the Eighth Circuit recognized in Mackey, the exemption does not protect any and all actions by employers. Rather, federal labor policy trumps the contrary policies of the antitrust laws only where, among other requirements, the agreement sought to be exempted concerns mandatory subjects of collective bargaining. 543 F.2d 606, 614 (8th Cir. 1976).56 The dispute at issue here, however, is not one regarding wages, hours or conditions of employment. See 29 U.S.C. § 158(d) (providing that mandatory subjects of bargaining pertain to "wages, hours and other terms and conditions of employment"). A lockout is not a substantive term or condition of employment. Rather, it is a procedural tool that the courts permit an employer to use to pressure a union back to the bargaining table. American Ship Building Co. v. NLRB, 380 U.S. 300, 310-11, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965) (holding lockouts are a permissible negotiating tactic (within limits) for the purpose of bringing economic pressure on union). The union, in turn, has the right to strike to pressure the employer back to the table.

As the Supreme Court explained in Local Union No. 189, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Jewel Tea, the propriety of the exemption is a function of what terms and conditions the labor laws require employers and unions to bargain over. 381 U.S. 676, 689, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965). The issue is whether the particular restriction at issue "is so intimately related to wages, hours and working conditions that the unions' successful attempt to obtain that provision through bona fide, arm's-length bargaining in pursuit of their own labor union policies,..., falls within the protection of the national labor policy" so as to be exempt from the Sherman Act. Id. at 689-90, 85 S.Ct. 1596. The NFL has identified no legal authority, controlling or otherwise, that stands for the proposition that the non-statutory labor exemption from antitrust liability, extends to protect the labor negotiation tool of a "lockout," as opposed to a mandatory term of collective bargaining, after a union has disclaimed any further representation of its members.

4. The Public Interest Does Not Favor The "Lockout"

The final factor in this analysis is consideration of the public interest. Indeed, the Supreme Court has reiterated that courts "`should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.'" Winter, 555 U.S. at ___, 129 S.Ct. at 376-77. Here, the NFL argues that labor law policies in favor of collective bargaining weigh against any injunction and that any countervailing antitrust policies must give way. (Doc. No. 34, at 55-57 (Mem. at 47-49).)

But because the Union's disclaimer is valid and effective, the labor law policies of collective bargaining must give way to the antitrust policies in favor of competition. On an economic level, the public has an interest in the enforcement of the Sherman Act, which, by seeking to ensure healthy competition in the market, has a broad impact beyond the immediate parties to this dispute. Moreover, the public ramifications of this dispute exceed the abstract principles of the antitrust laws, as professional football involves many layers of tangible economic impact, ranging from broadcast revenues down to concessions sales. And, of course, the public interest represented by the fans of professional football—who have a strong investment in the 2011 season—is an intangible interest that weighs against the lockout. In short, this particular employment dispute is far from a purely private argument over compensation.

The Brady Plaintiffs have made a strong showing that allowing the League to continue their "lockout" is presently inflicting, and will continue to inflict, irreparable harm upon them, particularly when weighed against the lack of any real injury that would be imposed on the NFL by issuing the preliminary injunction. The public interest favors the enforcement of the antitrust laws and their underlying pro-competition policy, and the countervailing labor-law policy favoring collective bargaining is no longer implicated here. Finally, the Brady Plaintiff's "fair chance of success" on the merits of the lockout— which again does not require that success is "likely" or even greater than fifty percent—shifts the balance decisively in favor of issuing the injunction against the lockout.57

III. ORDER

The nation's labor laws have always applied only where an action involves or grows out of a labor dispute. Such a labor relationship exists only where a union exists to bargain on behalf of its members. Where those employees effectively renounce the union as their collective bargaining agent—and accept the consequences of doing so—and elect to proceed in negotiating contracts individually, any disputes between the employees and their employers are no longer governed by federal labor law. Likewise, the Norris-LaGuardia Act, which applies only to preclude some injunctions in the context of "labor disputes," also no longer applies here to preclude injunctive relief. The NFL urges this Court to expand the law beyond these traditional dictates and argues that the protections of labor law should apply for some indefinite period beyond the collapse and termination of the collective bargaining relationship. In the absence of either persuasive policy or authority, this Court takes a more conservative approach, and declines to do so.

This Court, having found that the Union's unequivocal disclaimer is valid and effective, concludes there is no need to defer any issue to the NLRB. Because that disclaimer is valid and effective, the Norris-LaGuardia Act's prohibition against injunctive relief does not preclude granting the Player's motion for a preliminary injunction against what the League characterizes as a "lockout."

Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. The Brady Plaintiffs' motion for a preliminary injunction [Doc. No. 2] is GRANTED;

2. The Eller Plaintiffs' motion for a preliminary injunction [Doc. No. 58] is MOOT; and

3. The "lockout" is enjoined.