As NFL owners and players are expected to restart mediation in federal court Thursday, let's hope the owners are taking this process much more seriously.
Seriously enough to show up.
On Monday, federal judge Susan Richard Nelson of the U.S. District Court in Minnesota strongly chastised the NFL for its failure to bring "decision makers" to the sessions in late February and early March before George Cohen of the Federal Mediation and Conciliation Service in Washington, D.C. Nelson then made it clear she would regard the league as still taking matters lightly if top owners such as Jerry Jones, Robert Kraft and Jerry Richardson failed to participate to a greater degree than before.
The hearings Thursday and Friday will be run by U.S. Magistrate Judge Arthur Boylan, who was appointed by Nelson when she compelled the sides to mediate.
While the NFL's negotiating team in late February and early March included commissioner Roger Goodell, league attorney Jeff Pash and outside attorney Bob Batterman throughout and some owners on occasion (John Mara of the New York Giants and Green Bay Packers president Mark Murphy attended most), the perception from the NFL Players Association was that none of them had full authority to make a deal.
"Roger could never say 'OK' to anything," a source close to the situation said. "We would talk about something for hours and then he'd have to take it back to the owners."
That point was further backed up on the morning of March 11, the final day of mediation before the talks broke off. That morning, several people from the players' side read a Sports Illustrated article in which Peter King wrote that during a conference call on March 10, Goodell "was given the freedom to move drastically, if need be, to make a deal with players."
In the players' association view, that only confirmed that the previous 16 days spent talking mostly with Goodell and very little with the owners was a waste of time. Further, one of the main reasons that the players declined to go back to the FMCS last week – even after the league offered to protect the players' right to sue – was that the players felt Cohen was ineffective at getting the right people to the table for the NFL.
Beyond the mediation, the underlying message in all of this is that the owners are in a much more precarious situation than ever before as the clock ticks toward Nelson having to render a decision. It's strongly believed that the NFL is going to face having an injunction placed against its lockout. Then the league will have to hope it can get help from the Eighth Circuit Court of Appeals, first with a stay of the injunction and then with a reversal of Nelson's decision.
"Based on my understanding of the case, it would be prudent of the league to move forward aggressively in mediation," said another federal judge who has a healthy knowledge of the case. "The antitrust issues are very difficult [for the NFL] to get around and I would assume, from the way I interpret [Nelson's] remarks, that she understands that there is timing involved. If there really is irreparable harm caused by the NFL's actions, the court needs to move quickly … that applies in district court and in the [federal] appeals court."
In other words, any attempt by the league to prolong the process and gain leverage over the players by simply not negotiating in good faith will be viewed dimly at all levels of the judicial system – a court system that has lately been unkind to the NFL despite the perception so-called "conservative" judges would help the NFL.
Two years ago, the Eighth Circuit Court of Appeals upheld a lower court's judgment in the Michael Vick(notes) case. After U.S. District Judge David Doty ruled that Vick could keep $16 million in bonus paid by the Atlanta Falcons despite going to prison for dogfighting and gambling, the league appealed the case to the Eighth Circuit, a process in which a three-judge panel is assigned to hear the case.
The three judges to hear the case were Roger Leland Wollman, William J. Riley and Steven Colloton. Wollman was appointed to the court by former President Ronald Reagan. Riley and Colloton were appointed by former President George W. Bush.
And, by the way, Doty was appointed by Reagan.
Then there is the Supreme Court decision last year in the American Needle case, in which the NFL went to the nation's highest court seeking broad antitrust protection. The league lost 9-0 despite the perception that the court is currently conservatively biased.
Thus, the owners might be going down a bad path if they don't watch out.
Or, more specifically, if they don't show up.
- Susan Richard Nelson