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Court grants temporary stay pending appeal in NFL lockout case

Updated: April 29, 2011 6:49PM

The U.S. Court of Appeals has handed the NFL its first victory, albeit a modest one.

Two on a three-judge panel approved a temporary stay, effectively putting back in place the owners’ lockout of players.

After some delays, which representatives of the players insisted was in contempt of court, the NFL fully opened up its facilities to players on Friday morning. But at about 5:45 p.m., the U.S. Court of Appeals notified both parties of the temporary stay.

In arguably the country’s most conservative high court, two Bush-appointed judges (Steve Colloton and William Benton) favored the temporary stay while one Clinton-appointee (Kermit Bye) dissented.

Judge Bye, however, didn’t mask his displeasure with the decision.

“I am unaware of a general practice in this circuit of resolving requests for stays pending appeal in non-emergency situations in a two-step process,” he wrote. “The NFL has not persuaded me this is the type of emergency situation which justifies the grant of a temporary stay of the district court’s order pending our decision on a motion for a stay itself.”

He noted that he had granted such a request on behalf of an immigrant who was about to be removed from the country before the government had responded to a formal request.

“Another situation in which a temporary stay, pending review of a motion for a stay itself, may be appropriate is in a death penalty case where an execution date has been set and is imminent,” he wrote.

Judge Bye said the NFL can “easily re-establish its lockout.”

“The NFL is certainly not in the same emergency position as an immigrant about to be removed, or an individual about to be executed, who cannot so easily reverse the consequences of initially allowing a district court’s order to take effect,” he wrote.

“Because I believe we should limit our reliance on Eighth Circuit Rule 27A(b)(4) to true emergency situations, I disagree with the panel’s decision to enter a temporary stay based on the circumstances involved in this case.”

Finally, Judge Bye also wrote that the NFL undermined a key point by, within a day of Judge Nelson’s court denying a stay, put into effect “post-injunction operations which would allow the players to have access to club and workout facilities, receive playbooks, meet with coaches, and so forth.”

But Judge Bye didn’t seem too concerned, hinting that they would make a quick ruling.

“Because I expect our court will be resolving the actual request for a stay in short order, I see little practical need for granting an emergency temporary stay in this non-emergency situation,” he said.

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