Old Political Foes Take to the Field as Legal Scrimmage Continues

This is Part 1 of 3 in a special report on the NFL lockout.

It is a gridiron battle being played out in the courtroom.

The Eighth Circuit Court of Appeals has ruled the NFL lockout can continue through the appeals process, until the next court hearing on June 3. That means the continuing legal scrimmage pitting owners against players will continue, with the dominating issue being how they split billions.

"I think the most important thing is to get this out of the courts and back to the collective bargaining table where it belongs," says the lawyer for the owners, David Boies, chairman of the law firm Boies, Schiller and Flexner, before the latest ruling.

"For 80 years it's been absolutely clear that federal courts are not supposed to intervene in labor disputes and join one side or the other. This is not something that belongs in the courts," he told Fox News.

"We have courts in this country for a reason. If someone is breaking a contract or if someone is violating the anti-trust laws, or if someone runs over you with a truck, or if someone deprives you of your ability to earn a livelihood, where can you go? You have to go to court," countered the lawyer for the players, Theodore B. Olson, a partner at the firm Gibson, Dunn and Crutcher.

Both sides are butting heads before federal judges, and if the rivals echo a familiar match-up that's because it is.

The two lawyers faced each other in the Super Bowl of election litigation, the disputed 2000 presidential race, when Olson represented George W. Bush and Boies was on the side of Vice President Al Gore.

Now their scrimmage centers on the team owners and their players splitting $9 billion in revenue, among other issues.

"The owners have decided because they want more money, they will stop the players from playing and extract that additional billion dollars from them," charges Olson, who told Fox News that "the players are clearly being victimized."

Olson accuses the NFL of violating anti-trust laws "until they can get more money," saying the owners had a contractual agreement in place from 2006, that they decided to scuttle "in order to get an extra billion dollars" when they opted out in 2008.

"The owners terminated the contract. The owners put locks on the stadiums. The owners said no more football, no more paycheck, no more nothing for the American people, the communities that have those stadiums and the players, until they get another billion dollars."

"It's not just about the owners wanting more money....This is about the owners wanting to have something that creates value," counters Boies. "What the owners are trying to do is continue the value generation engine that the NFL has been...and it's to preserve the ability to grow the pie so that everybody can benefit from it."

Experts note the value of NFL franchises has slightly declined, and that the owners want to add additional games for more revenue.

"What you see now is value destruction," notes Boies. "Fans are frustrated, they're unhappy with the game and understandably so, and unless something is done to bring this back to football and away from the lawyers, I think it's going to hurt everybody."

Another major issue centers on whether the players are trying to avoid collective bargaining just to get a better deal. Unlike the contentious union battles over collective bargaining across the country, the players decided to move to dissolve their union, The National Football League Players Association, and represent themselves as individual contractors. The team owners blast that strategy as a fake, but the players say it is their legal right not to organize a union.

Boies, the owners' lawyer, calls the move "very short-sighted," charging that "everybody knows that they're going to go back to being a union. And so this isn't really a de-certification. It's really something that's done for short-term tactical advantage. And I think everybody knows that. The question is whether they're entitled to do that or not. We don't think they're entitled to do that under the law."

Olson, the players' lawyer, says his clients have every right not to be in a union.

"If we want to band together as employees to deal with our employer as a union, we may do so, under the laws of the United States and the First Amendment" he notes. "But we also have the right not to associate and what the League wants is for the players to be forced to be a union, because if they are a union then they can continue to violate the anti-trust laws."

Boies called the union de-certifying "a sham" in court, but in past years the NFL players agreement stated that if "the majority of players indicate that they wish to end the collective bargaining status" of the Players Association, that the League would waive any claim that such a move "would be a sham."

Yet others think the players' move is the legal equivalent of a quarterback sneak.

"It clearly is a bit of a trick play," New York University Sports law Prof. Robert Boland told Fox News. Boland says the Players Association did the same thing in 1989 and won a series of lawsuits over the move, but that "once you've seen a trick play it's harder to run again."

"The NFL is arguing the union is still a union which would never happen in the business world, and the union is saying, no... no...no we aren't a union, just individual free agents and that is really where we are right now."

He says "it's definitely a room of courtroom football and it is going to take a victory on one side or the other in the court case to get the sides to break. Since this litigation began after the collective bargaining ended, both sides really have tightened their ranks, and really are waiting to see which side calls enough!, first."

"Unfortunately, this may be the only way to get the parties to move," says Sports Business Journal reporter Daniel Kaplan about the court action.

Kaplan covers the business side of football, and thinks that "both sides are at fault here. The players really took quite a hard-line position, but the owners asked for a significant give back without any financial justification or documentation, and that is something that really rubbed the players the wrong way."

Kaplan says, "Everything hinges on whether the de-certification is legal."

In response to the appellate court ruling that allows for the lockout to continue, the NFL players issued a statement saying in part that the League's "request for a stay of the lockout...means no football. The players are in mediation and are working to try to save the 2011 season."

The NFL issued a statement saying in part that "the League and players, without further delay, should control their own destiny and decide the future of the NFL together through negotiation."

But for now, football fans cannot count on a kick-off, and the longer both sides face off, the more likely the 2011 football season will be put in jeopardy.