Key leaders on each side along with their legal teams are scheduled to reconvene court-ordered mediation on Monday morning before US Magistrate Judge Arthur Boylan. He presided over four full days of intense closed-door sessions last month under a federal gag order, with no new deal in sight.
Since then, US District Judge Susan Richard Nelson ordered the lockout lifted because it’s irreparably harming the players and their careers. Days later, on an appeal from the league, the 8th US Circuit Court of Appeals put a temporary stay on Nelson’s ruling and has yet to decide whether or not to issue a more permanent stay.
The appeals court in St. Louis has a hearing in the case set for June 3.
Also pending is an order from US Senior District Judge David Doty on the fate of some $4 billion in broadcast revenue he previously ruled was unfairly secured by the NFL in the last round of contract extensions with the networks to use as leverage in the form of financial padding for the work stoppage. Even if a lockout prevents games from being televised, the league would still get paid. The players asked that money be set aside and for hundreds of millions of dollars in damages, too.
The hearing in Doty’s courtroom in Minneapolis last week was mostly lawyers arguing back and forth, but each side accused the other of “sandbagging” and neither sounded as if it’s ready to concede any ground.
With all these potential momentum swings still unsettled in the court system, it’s fair to assume that no significant progress will be made toward the consummation of a new collective bargaining agreement and the ensuring of a full 2011 season, even though both sides said last time the talks with Boylan were positive and productive.
“In a normal world, the uncertainty is the currency of the mediator,” said Bob Berliner, a Chicago attorney who runs the Berliner Group mediation service. “It should make people more likely to want to come to an agreement, but my guess is it’s made them less.”
Though the NFL avoided for now a chaotic free agency free-for-all when the 8th Circuit slapped the stay on Nelson’s ruling and prevented the league year — meaning sanctioned offseason workouts, signings and trades — from beginning, the players have several more victories in court.
They could be emboldened and even less willing to budge. But, similar to a stock market investor cashing in on spiking shares in a flourishing company, they might also be thinking about a sell-high strategy, Berliner suggested.
“If I’m the players, I’d rather kind of live with the devil I know,” he said.
Commissioner Roger Goodell has continually spread the league’s message of desiring these face-to-face discussions to reach a deal, as opposed to letting the process play out in court, where the players have fared better.
“We come into this mediation session with every hope and intent to make them productive,” Goodell said last week. “If there aren’t two parties there willing to negotiate — they are not willing to address the issues in a negotiation and they are sitting and waiting for their litigation strategy — it’s not likely that they’re going to be productive.”
Minnesota Vikings left guard Steve Hutchinson, his team’s union representative before the NFL Players Association downgraded from union status to a trade association so players could file the antitrust lawsuit against the league, said he sees all the analysis about how the next court ruling could affect the process as mere speculation.
“I get up every morning, and I Google ‘NFL stay’ and see what the AP writer has with the latest scoop,” Hutchinson said last week at a charity event in Ann Arbor, Michigan “That’s where I get my information. But there is a gag order on everything. You’re making chicken salad out of what you have.”
