NFL Mediation (Part 2)
Last week the National Football League owners and the recently-decertified NFLPA were ordered to mediation, and today U.S. District Judge Susan Richard Nelson informed the parties that mediation will re-commence on Thursday, April 14, in front of Chief Magistrate Judge Arthur Boylan.
This is viewed as a victory for the NFLPA, who wanted Judge Nelson to oversee the mediation process. The NFL sought to return to Washington, D.C., and mediator George Cohen at the Federal Mediation and Conciliation Service.
By all accounts, Mr. Cohen was able to bridge many gaps and overcome many hurdles—minor and major, real and perceived—between the owners and the NFLPA. I have yet to read a negative account of the mediation sessions; by all accounts, Mr. Cohen did an admirable job.
So why would the NFLPA want a federal judge to oversee mediation from this point forward? Mediation is a process whereby a neutral third party facilitates dialogue between the parties, who must reach agreement voluntarily in order for a settlement to occur. A mediator lacks the ability to force anyone to do anything. The NFLPA has been the beneficiary of 20 years of favorable decisions in U.S. District Court, and apparently the NFLPA is convinced that the magistrate judge assigned to preside over the upcoming mediations will attempt to strong-arm the owners into a favorable deal for the players.
I think the NFLPA is making a big mistake by insisting on leveraging what has been a winning hand in the U.S. District Court. On the one hand, Magistrate Judge Boylan and Judge Nelson could potentially get a firsthand look at the owners’ tactics within the guise of the mediation and form an opinion of the owners’ position that colors future rulings. On the other hand, the players and owners were apparently not too far off when the mediations with Mr. Cohen broke down. These negotiations have been very tense and emotional, and it seems fair to categorize the relationship as fragile. If the players believe that a deal will only get done after receiving favorable rulings in the U.S. District Court, and that it needs to expose the owners to the judges in order to obtain favorable rulings, then the current strategy is a sound one. If the players are optimistic that a deal can be reached voluntarily between the parties with the court only minimally involved, then this strategy runs the risk of blowing up all of the progress achieved with Mr. Cohen.
In the big picture, the most important thing for the two sides is dialogue. This requires building off of previous agreements reached with the assistance of Mr. Cohen. The mediation between the NFL and NFLPA is the ultimate example of many small agreements leading to a larger agreement. In requesting that mediation be held in the federal court before a magistrate judge, the players and their association seem to be intent on “winning” these negotiations. My concern is that the progress made to date could be negated by this move, and the players’ minor victory—mediation in front of a U.S. District Court judge—could ultimately result in a major loss.
One final thought: If the parties are interested in resolving their dispute with the assistance of a mediator, my belief is that the owners should be receptive to mediating in front of Judge Boylan and the players should be receptive to mediating in front of Mr. Cohen. Mediators beat up parties; both Judge Boylan and Mr. Cohen are going to try to make the owners give up a greater percentage of revenue and to provide lifetime health care to the players, and they’re going to try to get the players to reduce the percentage of shared revenue and to implement a rookie salary scale that reduces the amount of guaranteed money players who have never played a snap in the NFL receive. The mediators are going to habitually reinforce the need for labor peace sooner than later for the good of the game, to preserve and protect the golden goose. In other words, the mediator is going to play the same role whether he is in Leucadia, Minnesota, or Washington, D.C. It stands to reason that if the parties can’t agree on the forum for mediation, the chances of resolving an exponentially more complex dispute is pretty low.
Read More