-------------------------------------------------------------------------------- April 14, 2011 N.F.L. and the Players Union See the Same Forest, but Different Trees By JUDY BATTISTA When they left mediation a month ago, the results of two weeks of conversation provided a convenient Rorschach test for the N.F.L. and the players union. Not surprisingly, they looked at the same events and saw different things. The owners said the differences were narrowing and talks should have continued. The players countered that the only movement was further apart, and that the owners had offered the worst deal in the history of sports. The only thing they agreed on: the other side had been committed to its plans — decertification and litigation for the union, a lockout for the owners — all along. It is not the most promising starting point for Mediation 2.0, which began Thursday in Minneapolis, where even a federal judge peeking over their shoulders engenders scant optimism from either side. United States District Judge Susan Richard Nelson ordered the talks as a lifeline to parties she thinks should be able to resolve their differences without her involvement. But her real power to get them moving will not be felt until she issues her ruling on the players’ request for an injunction to stop the lockout. Nelson could order the sides to continue mediation after she rules on the injunction, setting up the possibility that mediated talks could go on while the sides remain engaged in a court battle. There is also the chance that the talks could lay the foundation for a deal if the mediator can find common ground between the two sides on what their future relationship will be — for example, whether the players will reconstitute their union to allow a collective bargaining agreement. Based on comments Nelson made from the bench — she seemed skeptical of the league’s using the Norris-La Guardia Act to argue that the court cannot end a lockout, indicated that she believed the union had the right to dissolve itself, and said she thought players had a strong case that they were already suffering irreparable harm — both sides expect Nelson to grant the injunction. That could happen as soon as next week if Nelson sticks to her stated schedule, or she could delay her ruling to give the mediator she appointed, Arthur J. Boylan, the chief federal magistrate judge in Minneapolis, more time to determine if there is any point to the talks. Even if Nelson rules in favor of the players, she could grant owners a stay, which would effectively keep the lockout in place pending an appeal. The players say that when talks collapsed, the sides were not close on the key issues: the way to divide revenue, the rookie compensation model and the 18-game regular season. While the players have leverage now with the expectation that Nelson will rule in their favor, players and their representatives most likely have little incentive to accept any offers on any part of the deal now because their leverage could increase. Further, there is no guarantee that the proposal owners made before talks broke off March 11 will still be on the table. That proposal included a salary cap that left the sides $320 million apart in the first year of the deal, but without a mechanism to give players more money if revenue exceeded projections in the first four years of the deal. The owners also offered a rookie pay proposal that, according to league documents, would have reallocated about $300 million per draft class from first-round rookies to veterans and player benefits while still allowing individual negotiation of contracts. The owners made it clear that the proposal was intended to keep everybody talking. It did not. Since then, players have raised questions about it — particularly about how any increase in revenue would be handled — that could be the foundation for this mediation. Owners have viewed the district court proceedings, with Nelson presiding, as almost a free swing. They fully expected Judge David S. Doty — the owners’ bête noire — to hear the injunction request, and they assumed he would rule against them. Nelson, they felt, gave them a chance of success in the district court. But the league had focused on the Court of Appeals in St. Louis as its best chance to keep the lockout in place even before the players filed their lawsuit. Losing on the injunction at the district court level may not alter the owners’ timeline for making a deal. After the Court of Appeals makes it decision — a process likely to take about a month — it will be clear which side has leverage. If the owners lose there, the players will have enormous leverage, and owners will feel pressured to make a long-term deal. If the owners win on appeal, the players’ position will grow weaker, particularly since it will be that much closer to the start of the season, when players will start losing paychecks. Both parties face delicate decisions in determining when the risk of waiting outweighs the potential rewards of settling. The longer the lockout lasts, the more nervous some players will get. Looming over the owners is a May 12 hearing on what could be big damages in the television contracts case the players brought against the league. The television case is part of what owners said they wanted included in mediated talks leading toward a “global resolution” of the myriad issues that divide the sides. Getting the sides back in the same room is a first step, but getting them to see things the same way is the challenge Boylan faces. http://www.nytimes.com/2011/04/15/sports/football/15nfl.html?_r=1&ref=football&pagewanted=print
It seems to me that while both parties may well have gone into this off season with their plans in place as indicated, the league pursuing a lockout, the players litigation, at this point we can see how a couple of more steps ahead there are risks for both sides in staying in court. While one might imagine either or both sides saying let's let it roll and hope for the best in court, I think without being over optimistic, I hope, that they might well both agree that a settlement short of that is the way to go. The league wants the players to put the union back in place. Without a union the league can't get a lot of what they want, such as an agreed upon process and signing cap for rookies, free agent rules, and the like. Without a union they would have antitrust exposure. A settlement allows the players to start earning money. Time is not on their side, imo. The other wild card is the lawsuit on tv income. I think the players have the upper hand there, but once again this could be another reason to settle, since although the players seem better positioned, it's no sure thing. Imo the most likely scenario is some posturing will go on in this court ordered mediation, Nelson will rule for the players, will not issue an indefinite stay pending the appeal outcome, however (maybe a brief stay, or none), and the parties then get serious about negotiations. The league will appeal to the Eighth Circuit, where they may feel they will get more love than in the district court, but again that's no sure thing. Imo this scenario makes a settlement somewhat more likely than not. Ftr I think it rather unlikely that Nelson rules for the league, so I haven't gone over that scenario and where it might lead.
just like the housing bubble the issue here is that everyone is living way beyond their means. if the players have used such poor judgement that they cannot miss a few game checks they are in trouble. for a career that averages 4 years, if you have prepared yourself so poorly that you cannot afford to miss a few game checks... YOU have done yourself a disservice and will end up broke in the end. its a shame that these guys are so terribly poor planners that they will lose hundreds of millions of dollars. it serves them right i guess.
