Tuesday, December 2, 2008

The Williamses' Pending Lawsuit

The Williamses' agent has promised to bring a federal lawsuit seeking an injunction to delay his clients' suspensions. My initial reaction is that this strategy will probably fail.

As background, there are essentially three types of injunctions: permanent injunctions, preliminary injunctions, and temporary restraining orders.

A permanent injunction is the ultimate relief at the end of the case. A plaintiff must win his case to get a permanent injunction. However, in many instances, an injunction at the end of the case will be worthless because by the time the lawsuit is over, the point of the injunction will be moot. If the heartless strip mall developer paves over your breakdancing park while your case is pending, an injunction prohibiting him from doing it after the fact won't really help.

Thus, there are preliminary injunctions, which are aimed at preserving the status quo while your case works its way through the system. A plaintiff must show, among other things, that absent a preliminary injunction he will suffer irreparable harm. The plaintiff must also show some likelihood that he will ultimately prevail in his lawsuit. The court must generally conduct a hearing to award an preliminary injunction.

A preliminary injunction, like a permanent injunction, is no good if before the court can conduct a hearing the bulldozers plow through the breakdancing park. Thus, courts are authorized to grant temporary restraining orders, or TROs. A TRO maintains the status quo until the court can conduct a full hearing on the preliminary injunction. To obtain a TRO, a plaintiff must generally show that irreparable injury is imminent and that plaintiff will suffer irreparable harm if forced to await a full hearing.

I suspect that the Williamses will be seeking a TRO and preliminary injunction. Setting aside the merits of their case, the biggest problem that I see is that there does not appear to be any irreparable harm. Irreparable harm is something that cannot be undone, like restoring a breakdancing park buried under a strip mall. Or, un-disclosing a trade secret: once the Colonel's seven secret spices are known, a court cannot make everyone forget them.

The general rule is that if a plaintiff can be "made whole" with money damages, they have not suffered irreparable harm. The U.S. Supreme Court has applied principal in the employment context. For example in a 1974 case, Sampson v. Murry, 415 U.S. 61, the plaintiff was fired from her cushy government job. She filed suit, seeking, among other things, a preliminary injunction preventing her employer from dismissing her. She alleged that she would suffer irreparable injury because "she might be deprived of her income for an indefinite period of time, . . . spurious and unrebutted charges against her might remain on the record, and [because] she would suffer the embarrassment of being wrongfully discharged in the presence of her co-workers." Not good enough.

Quoting an earlier case, the Court held that:

The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.

Because, the plaintiff was entitled to backpay if she prevailed, the Court held she failed to meet the requirements of a preliminary injunction.

Similarly, here, if the Williamses ultimately prevail in their lawsuit (which is a whole other topic), they would seem to be made whole with back salary. Their lawyer has to argue that the Williamses can never go back in time and replay those games that they missed. And thus, they cannot be made whole unless they are allowed to play.

This seems like a weak argument to me. Playing football is their job. And while it is true that they cannot go back in time and play out those missed games, neither could Ms. Murry go back in time and shuffle papers in a federal office building.

I guess a good questions is: should we have a separate legal standard for professional athletes?

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