How the Eighth Circuit’s Republican Shift has Changed the Playing Field for the NFL Players Association

In sports, and in court, every party seeks an advantage. Despite U.S. Supreme Court Chief Justice John Roberts’ suggestion that judges are like umpires calling balls and strikes, most observers believe that the judges who decide cases can make a major difference in the outcome. Thus plaintiffs, if they have an opportunity to choose where to file suit, will often seek courts that are more likely to be receptive to their arguments.

Against that backdrop, why did the NFL Players Association (NFLPA) chose to file its most recent anti-trust suit against NFL owners in a district court within the U.S. Court of Appeals for the Eighth Circuit – the circuit with the highest percentage of judges nominated by Republican presidents – where the appellate judges are more likely to be receptive to the NFL’s corporate interests than the players’ pro-labor arguments? The answer is, it wasn’t always this way.

The NFL players’ path to the Eighth Circuit began forty years ago, when the union filed an anti-trust lawsuit against the NFL’s “Rozelle Rule” that restricted the ability of players to move freely between teams in the league. Why was that lawsuit filed in district court in Minnesota? As the New York Times has recently reported, it was almost by happenstance. The NFLPA president at the time, Hall of Fame tight end John Mackey, asked two players on the negotiating committee that were attending law school at the University of Wisconsin to ask their professors which attorney the union should hire to bring a labor suit. A Minneapolis lawyer was recommended, and when he filed the case, he filed it close to home. The players won that case, and in 1977, free agency entered the NFL. Since then, they have won many suits against the owners, each time filed in the same forum. A lawsuit settled in 1993 – White v. NFL – even established the Eighth Circuit as the place where future related suits would be filed.

At the time the players challenged the Rozelle Rule, the Eighth Circuit was fairly balanced, with five judges appointed by Democratic presidents and three by Republican presidents. Over time, however, the Eighth Circuit began to shift steadily toward Republican appointees. Today, the Eighth Circuit has nine Republican appointees, seven of them appointed by George W. Bush, and only two Democratic appointees, both appointed by Bill Clinton. It is not only the most Republican circuit, it is the only circuit in the country with a majority of its judges appointed by a single president.

In short, the longtime home field of players' lawsuits has changed under their feet.

In April, U.S. District Judge Susan Nelson, appointed by President Obama in 2010, granted the players request for an injunction to compel the owners to stop the lockout that has ground the sport to a halt. The owners, however, perhaps sensing they would receive a better reception in the Eighth Circuit, quickly appealed. They drew a panel of two George W. Bush appointees – Judges Duane Benton and Steven Colloton – and one Clinton appointee, Judge Kermit Bye. In a 2-1 April decision, the Bush appointees stayed Judge Nelson’s ruling and allowed NFL owners to reinstate their lockout until the court could hear full arguments on the merits, while the Clinton appointee agreed with Judge Nelson’s analysis.

Tomorrow, when the same Eighth Circuit panel hears this high-stakes showdown between labor and corporate interests, it may in fact be the referees that make all the difference.