The federal judge handling the lawsuit against the league told both sides Monday they will participate in court-supervised mediation, saying she still is considering whether to grant the players’ request to lift the lockout that’s been in place for a month.
The players got their wish, with the talks held in the federal courts in Minnesota rather than the collective bargaining setting where the two sides unsuccessfully met last month.
U.S. District Judge Susan Richard Nelson said formal mediation will begin Thursday before U.S. Magistrate Judge Arthur Boylan at his office in the Minneapolis federal courthouse. Boylan will meet with representatives for the players Tuesday, then representatives of the NFL on Wednesday.
The sides tried mediation before, negotiating for 16 days in Washington with Federal Mediation and Conciliation Service director George Cohen. Those talks broke off on March 11, and the old collective bargaining agreement expired.
Athletes Behaving Badly
The NFL Players Association dissolved that day, saying it no longer would represent players in bargaining under labor law. That allowed players – including MVP quarterbacks Tom Brady and Peyton Manning – to file a class-action antitrust suit against the league in federal court here. The owners then locked out the players, creating the NFL’s first work stoppage since 1987.
Nelson ordered Monday that both sides keep the mediation confidential.
NFLPA spokesman George Atallah declined comment as did NFL spokesman Greg Aiello. Neither party would divulge who will be attending the session this week.
At a hearing last week about the injunction request, Nelson urged the sides to get “back to the table” and said negotiations should take place at “not the players’ table, not the league’s table, but a neutral table, if you will.”
The next day, the players and owners both expressed a willingness to talk, though they disagreed on where and how they wanted to do it. The players said they were willing to engage in mediation overseen by Nelson. The NFL said it wanted to resume talks with Cohen in Washington.
Nelson said at the hearing she would take “a couple of weeks” to rule on the injunction. On Monday, she noted that her order to resume mediation “will not have the effect of a stay on this litigation,” and that she would rule “in due course.”
Nelson’s order called for legal counsel for the parties “as well as a party representative having full authority” to attend. She also said that participation in the mediation “and any communications conveyed between the parties in this process, shall not be admitted or used against any party in any other proceeding or forum, for any purpose.”
That would appear to address the players’ concern that any talks held after the dissolution of the union could be construed as collective bargaining – and thus bolster the NFL’s clam that the dissolution was a “sham” merely intended to strengthen the players’ position at the bargaining table.
Last week, NFL executive vice president Jeffrey Pash sent a letter to a lawyer representing the players, James Quinn, with a copy going to Nelson. Pash wrote that the league is “prepared to give reasonable and appropriate assurances” that the players’ legal position – not a union protected by labor laws but a group of players suing under antitrust laws – would not be compromised through any new talks.
Nelson’s order referred to the mediation “as a form of Alternative Dispute Resolution,” a legal and in this case euphemistic term for the revival of negotiations. Perhaps it will lead to some real progress. Or maybe it’s more like marriage counseling, simply getting two disputing parties back in the room together.
“Sometimes there is a place in negotiation for changing the context, changing the city, changing the mediator or changing the atmosphere, but who knows where this will lead?” said one legal analyst, Jonathan Rubin, a Washington trial attorney and antitrust expert.
Nelson also formally combined the lawsuits involving current and former players earlier Monday. Neither the Brady plaintiffs nor the NFL objected to combining the cases, according to a court document.