ST. LOUIS � As he left the Thomas Eagleton Courthouse following the NFL lockout hearing on Friday, someone asked DeMaurice Smith if he was heading to another secret meeting to bring an end to the labor dispute that has frozen pro football.
By Dilip Vishwanat, Getty Images
DeMaurice Smith and the NFL players must await their fate after a court heard arguments in their suit against the NFL on Friday.
By Dilip Vishwanat, Getty Images
DeMaurice Smith and the NFL players must await their fate after a court heard arguments in their suit against the NFL on Friday.
Smith, the NFL Players Association executive director, who engaged with the other side in a series of meetings near Chicago this week, sparkled with a slight grin.
"If I do have a secret meeting," Smith shot back, "I'm not telling."
From there, he dashed off, past a throng of reporters and TV cameras. Then he circled back, glad-handing with the more than two dozen players who showed up in court.
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There are undoubtedly legions of NFL fans ? and players, team secretaries, hot dog vendors, security guards and coaches, too ? absolutely hoping that Smith has a few more "secret" meetings with the likes of Roger Goodell, Jerry Jones and Robert Kraft, if it means matriculating towards the end zone of an uninterrupted road to Super Bowl 46.
When news circulated Thursday that the two sides met in "settlement" talks while the contentious court hearing approached, and in lieu of scheduled mediation talks in Minneapolis next week, it seemed like an arctic land mass near the South Pole had given way.
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Officially, no one from either side divulged the substance of the latest round of meetings.
Yet the fact there were meetings ? apparently at the request of the owners ? beyond the range of NFL Network live shots, blow-by-blow updates on ESPN and an army of reporters blasting Twitter feeds, represented an altered state.
Remember, late union chief Gene Upshaw and former NFL commissioner Paul Tagliabue had many "secret" meetings that resulted in one labor extension after another.
Of course, these recent meetings are not to be described as "labor" talks.
At least not legally.
That much was declared again in court, before the three-judge panel hearing the NFL's appeal in Brady et al v. NFL (lockout version, 2.0).
Since it swiftly rejected the NFL's not-so-final offer in March and decertified as a union, the NFLPA cannot legally bargain for a new labor pact. And NFL owners can't strike a deal with the NFLPA.
Yet they surely can have settlement talks that lead to a new labor pact, a precedent being the Reggie White v. NFL suit settled in 1992.
All of which hardly squares with one of the key pillars that high-powered attorney Ted Olson argued on behalf of the named plaintiffs in the case to end the lockout.
As lawyers debate the applicability of the Norris-LaGuardia Act, the position of the players maintains ? and U.S. District Court Judge Susan Richard Nelson agreed, when ruling in April to end of the lockout ? that the current dispute does not grow out of a labor dispute.
For all of the principle behind the players suing to have the lockout lifted in order to return to work ? and the fault that was found in the owners' plan to provide themselves $400 million in lockout insurance at the expense of their declared business partners ? the argument that the courtroom wasn't packed Friday because of a labor issue is tough to swallow.
Especially given the "settlement talks" that presiding judge Kermit Bye? who incidentally cast the dissenting vote in the 2-1 ruling to issue a stay that keeps the lockout in place until the appeal is resolved ? acknowledged in his closing remarks.
Said Bye, "We won't be all that hurt if you're leaving us out and go out and settle the case. But that's up to you. If we end up with a decision, it'll probably be something that both sides are probably not going to like."
Bye sounded a lot like Nelson did at the end of the hearing in St. Paul in early April, warning the sides to cut a deal ? or else.
"My prediction is that this will ultimately be resolved only in a labor agreement," Paul Clement, who argued the NFL's case, said after the hearing, repeating a refrain that Goodell has stated repeatedly. "The union will be back. So their argument doesn't work as a matter of common sense or as a legal matter, either."
In the courtroom, Clement argued the lockout is needed as a tool to reach a labor deal ? which players interpret as a mechanism to squeeze for givebacks.
"The reason the lockout makes sense is that this continues to be a labor dispute," Clement told the judges. "In their heart of hearts, I assume that everybody in this courtroom believes this will be resolved."
Olson, though, also argued that the non-statutory labor exemption that the NFL enjoys under a collective bargaining agreement should be immediately null and void. That's another of the big-picture arguments attached to the simple question of ending the lockout.
Without the exemption, the NFL is subject to antitrust violations that could potentially fuel a huge financial judgment with treble damages.
Olson told the court that by maintaining it needs the exemption ? even while it seeks to reach a new labor deal ? the NFL is essentially saying, "We will eat the dinner, but we will not pay the bill."
That quip drew some of the most noticeable reaction ? giggles ? in the courtroom.
Yet with the lockout nearing the close of Week 12 and the high-stakes risks facing a ticking clock with training camps scheduled to open in late July, the consequences that can occur if there are no more "settlement talks" soon is as serious as it gets.
As he left the courthouse, Olson issued a reminder that it was the NFL that instituted the lockout ? and not the players. That's a theme that's been repeated for weeks.
But it's the players who initiated the court action that began with decertification, maintaining that they were forced to operate on a separate legal track running parallel to the "secret" meetings that might lead to a labor deal.
"To anybody that believed litigation or settlement, there was a choice between the two, those people are wrong," NFLPA spokesman George Atallah declared on the steps of the courthouse. "We're here to lift the lockout so that players can play football. At the same time, that doesn't mean settlement negotiations couldn't continue. You saw that over the last couple of days. It's a false choice to think that one could happen over the other."
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