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A simple solution to the settlement negotiations impasse

Jeff Pash AP

It’s no surprise that two parties that have agreed only rarely of late currently disagree regarding something so simple as the format and context of ongoing efforts to negotiate a new Collective Bargaining Agreement.

As it currently stands, the players have informed the league that talks may occur via the lawyers representing the class action lawsuit that was filed 11 days ago, after the NFLPA decertified as a labor union.  The league refuses to negotiate a settlement of the lawsuit; instead, the NFL wants to return to the bargaining table, preferably under the auspices of federal mediator George Cohen.

Here’s how this logjam can easily be broken.  NFL general counsel Jeff Pash should call Jeff Kessler, outside counsel for the NFLPA and one of the lawyers representing the players in their lawsuit, and offer to pick up the talks where they ended on March 11, with the same participants and in the same location.  In turn, the NFL would commit in writing that the involvement of the NFLPA Executive Committee and/or NFLPA executive director DeMaurice Smith and/or other NFLPA advisors like Pete Kendall would not be used against the NFLPA to prove that the decertification of the union was a sham.

Of course, there’s a chance that Kessler and/or the NFLPA would ask for something more.  But that shouldn’t happen.  It’s a simple proposition — the two sides press “play,” the dance continues from the point where it left off, and the NFL agrees not to run to the court in Minnesota or to the NLRB and say, “Look, here’s more proof that the union is still a union!”

It’s a quick fix, and the failure of the NFL to offer this approach tells us that, a week after the NFL seemed to be ready to get back to the table in the wake of the launching of the litigation strategy, the owners have decided to take their chances on April 6.

And so for the same reasons we called out the NFLPA last week, when it appeared that the players were dragging their feet, we now officially call out the league for not taking full advantage of the opportunity to get the situation resolved in the 15 days between now and the commencement of the hearing on the motion to lift the lockout.

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23 Responses to “A simple solution to the settlement negotiations impasse”
  1. mick730 says: Mar 22, 2011 10:10 PM

    Pointless. The NFLPA has planned for the last two years on the litigation route. They aren’t going to change now with only a few weeks to go.

    And please, Kessler? The owners should call Kessler? He’s the one who has wanted the litigation route all along. Guess who wins big time if the end result is a anti-trust ruling? Kessler, that’s who. Treble damages. Good Lord, Kessler will never have to work again, nor will his player agent son.

    The bottom line here is that nothing is going to be done for a long time; even if this Minnesota judge rules for the players sometime after April 6th, the league will quickly appeal to the 8th circuit where it will prevail.

    Kessler and Smith have convinced themselves and the players that all of the owners are making a financial killing year in and year out. They’re wrong, as the Green Bay books clearly point out. The owners are not going to cave and the 2011 season clearly is in danger of not being played, as the owners strongly believe that the future of the game is jeopardized by continuing under the financial constraints of the just expired CBA.

  2. Davo says: Mar 22, 2011 10:21 PM

    It won’t happen because the two sides, no matter what they say publicly, don’t want to talk.

  3. hail2tharedskins says: Mar 22, 2011 10:41 PM

    There is a huge problem with this proposal. Mainly, no matter what the league promises the union this is too public for the negotiations to remain private. The NLRB and the judges in Minnesota will surely know that the union is still functioning as a union. In addition to that, even if it were totally kept secret some where it would come out in the NLRB claim or the legal case in MN unless of course the members of the union are willing to lie under oath. Like I have said before, both sides have dug in on their position and this will not be resolved until know whether the a) union has dissolved in the eyes of the law and b) if the league is permitted to lockout the players while the anti-trust lawsuit proceeds. Once we have the answer to those questions, then the negotiations will resume and will resume quickly on the terms of the league if the players remained locked out and on the terms of the players if the lockout is lifted.

  4. Deb says: Mar 22, 2011 10:57 PM

    @mick730 …

    The players have planned this litigation for two years? So the players were planning two years for the owners to use the opt-out clause in the existing CBA? If the owners had simply let the current agreement stand, none of this would be happening. If the owners had not imposed a lockout, none of this would be happening. All I’ve heard for the last two years is lockout, lockout, lockout.

    The owners shut down the league. That was their choice. They didn’t have to lock out the players as a response to decertification.

    I agree that Kessler most likely wants a protracted court battle–as do attorneys for the owners. All the attorneys will profit from lengthy litigation. But that has nothing to do with Mike’s suggestion.

  5. smacklayer says: Mar 22, 2011 11:01 PM

    What’s the point? The PA said will take nothing less than complete financial statements for the last 10 years. This is a riduclous request and the PA hung their ultimatum on that.

    Honestly it is as obsured as the league asking for complete financials for every player for the last 10 years to see how their spending their money and “make sure” the players aren’t wasting it and that players actually “need” more money.

    Further, the staw man argument that the owners need to “justify” why they want a billion back form the players is nonsense. It is the owners money to begin with, so they are not “taking it back” they want to not give it to begin with.

    There is nothing wrong with an owner of a business realizing that he over-paid an employee 4 years ago and now is asking him to take less. The employee is not “giving back” money, he is just not going to get as much going forward.

  6. nflfan101 says: Mar 22, 2011 11:11 PM

    Apparently, you just don’t get it or your bias in favor of the players is so strong, you are blind. The players (or at least some of their “leaders”) do not want to negotiate. They could call the owners if they wanted to negotiate, but they do not want to negotiate.

    The owners have begged for CBA negotiations to the point it is embarrassing. Negotiating a settlement of the law suit is not the same as negotiating the CBA.

    Why not tell viewers the NFLPA* contact info and encourage viewers to tell the NFLPA* to negotiate and get a deal done?

  7. Kave Krew says: Mar 22, 2011 11:12 PM

    Here’s a simple solution — F it all

    I am so tired talking about the CBA, owners, players, millionaires, billionaires……f it all

  8. Rhode Island Patriots Fan says: Mar 22, 2011 11:38 PM

    The NFL and the NFLPA* are like two Japanese sumo wrestlers searching for maximum leverage so that one can drive the other out of the ring. If the players are not granted preliminary injunctive relief to lift the player lockout, then the owners will gain the upper hand. If the players’ request is granted, either shortly after the April 6 hearing, or after re-filing—assuming their original application is not dismissed with prejudice—around the time of, say, training camp, then advantage players. In any event, the approach of the 2011 regular season will likely be the impetus for each side to scale back its demands and forge a compromise solution or settlement agreement, which will spawn a new CBA.

  9. smacklayer says: Mar 22, 2011 11:56 PM

    @Kave Krew

    If you are so sick of it why are you still reading these articles going so far as you comment on it? If you are sick of it, close your web browser and go away. Comments like the one your wrote are wasted electrons. I’d rather read a comment about ray lewis being a murderer or some stupid tebow bashing joke about his religion than a comment like yours.

  10. airraid77 says: Mar 23, 2011 12:35 AM

    There is no nfl, without the owners. their is an nfl without the current group of players.
    the owners are saying exactly what they need to, we cant continue at the levels we are. Our only resolve under current condition is to price ourselves out of buisness. look up laffers curve.
    I dont know how a court can sit there and say the buisness has to stay open or make the nfl stay open for negotiation with something that technically doesnt exsist.
    The players dont want any changes to the current cba. but they did agree to both having the ability to back out of the cba. THE PLAYERS AND THE OWNERS BOTH AGREED TO IT.

  11. stoney18 says: Mar 23, 2011 1:32 AM

    At least neither side has mentioned anything about caring for the fans lately …. that is the only progress I can see!

  12. tcdun says: Mar 23, 2011 2:53 AM

    NFLfan101 has it exactly right !
    The owners want to negotiate a new CBA agreement and have compromised over and over again to try to keep the talks going. The union WALKED OUT and refused to negotiate any longer ,without even making any counter offers,which the owners expected them to do.
    The owners are begging to restart the CBA negotiations BUT the union only offered to negotiate on the court case that is supposed to stop the lockout,NOT negotiate the CBA at all. In other words the union will not talk about the CBA any more but are trying to convince the fans that they are offering more negotiations,when they are only offering to let the owners negotiate a win for the union without them even winning in court,lol.
    I feel sorry for the players who let Mr. Smith lie to them and who is leading them over the cliff. I pity Mr. Smith if the Judge does not rule in his favor,since he will be wishing the owners would put their last offer back on the table ,but they might just play hardball ,since the union has no more cards to play .
    Fire Smith and get someone in his spot more like Gene Upshaw,a real NFL insider,not a stubborn lawyer trying to make a name for himself !

  13. sinatravegas says: Mar 23, 2011 7:46 AM

    Stop being simple minded… The 2 sides don’t want to negotiate! The ONLY reason Goodell and his cronies have been saying ‘let’s negotiate’ is because he wants to be able to go to court and say ‘See! They are a union! Or else they wouldn’t meet with me with their union head!’ What more do you need to know other than the players went to court to say ‘end the lockout!’ And the owners went to the same court to say ‘Keep them locked out!’ How much more obvious do the respective parties interests have to be?

  14. PanchoHerreraFanClub says: Mar 23, 2011 8:15 AM

    Mike, this is a labor negotiation. If you were any good at that you would be doing it for an honest living. These things get settled when both parties want to make a deal. No one wants to make a deal today.

    The owners (especially, JJ and Danny Boy) wanted the union to decertify so the next TV contract will not be for the NFL overall, but done on a team by team basis (think pay for view). The Cowboys, Redskins, Giants, Jets, and Bears stand to make huge bucks from a deal like that.

  15. nesuperfan says: Mar 23, 2011 8:36 AM

    Here is another simple solution: The players get therapy to come to grips with the fact that they are not partners, but employees.

  16. rad312 says: Mar 23, 2011 8:49 AM

    The reality is the owners (as is their right) opted out of the contract because they determined that it was not a good deal. Everyone seems to forget that the contract negotiations went down to the wire with Tags and Upshaw…..and a number of owners at that time were grumbling that it was a bad deal. Then Kevin Mawae comes out shortly afterwards announcing that the players got a great deal…..

    In short yes the owners have been planning for 2 years to opt out with the intent of getting a better deal in place.

    The NFLPA meanwhile were threatening from day one that if the NFL opts out the players will never accept less…..

    At this point the pin in the grenade has been pulled so both sides are waiting for ruling and depending on the ruling the leverage in the negotitians will shift which will hopefully get the right parties (i.e, no lawyers…) around the table to talk. At this point it is clear that the players feel they have all of the leverage so hence their approach to the mediation.

    At this point to offer “easy” scenarios of Pash (or whomever) contacting Kessler (or one of the other dozen lawyers) is not realistic.

    Further enough about both sides concerned about the fans…..that is all BS!!!

    If the lockout progresses we may lose some games while the billionaires and millionaires fight…..however it the player prevail and the owners are forced to live by another uncapped year then it will the fans that will ultimately lose, as the owners in order drive profit will increase the costs onto the fans and put a inferior product on the field as there will be no floor to salary cap!

  17. PFTiswhatitis says: Mar 23, 2011 9:05 AM

    Mike I’ve never seen anything as naive as this offered up by you.
    We all know that both parties have dug in and created MORE barriers than there were when they last broke negotiations. Thinking they can just pick up the phone and continue where they left off in the interest of avoiding litigaton is crazy. It is going to take a third party to do that.

    And to your other point, blaming the owners for wanting to take their chances when the NFLPA has outright shown they want to go to court is just wrong.

  18. rscalzo says: Mar 23, 2011 10:27 AM

    Boo Hoo. Let the 2011 season flop and all the players can get jobs in supermarkets bagging groceries. Tired of hearing how they live week to week. That simply shows what idiots some of them are and how little they can deal with life.

    Next year a few teams will be gone from financial failure and a few hundred less will have jobs.

  19. Kave Krew says: Mar 23, 2011 11:14 AM

    @smacklayer

    i had nothing……it was late, i was tired…..so i went with my first thought

    but it appears a few people enjoyed the electrons i put together….

    seriously, thanks for the feedback though – appreciate it….

  20. sinatravegas says: Mar 23, 2011 12:30 PM

    nesuperfan: A judge has already ruled that they ARE partners… If you disagree with that I’d love to see your law degree. If they weren’t they wouldn’t have to agree how to share THEIR revenue. They NEED each other. If I was a waiter, I wouldn’t be a partner because they could fire me at any time and replace me with any schmo off the street. The owners aren’t going to find many 6’5″ 240lb guys running 4.4’s on the street. If they do I got a flag football team that needs some guys

  21. chapnastier says: Mar 23, 2011 2:44 PM

    It is clear to anyone with a 1/4 of a brain that the players have no interest in negotiating. All they want to do is settle this in court even though it is clear that they are still acting as a union and the “sham” defense is 100% accurate.

    The players walked away from negotiating after the owners exercised their agreed upon right to end the current CBA. After the players walked away from the table in a tantrum a lockout was imposed. Had the players not walked away it can be assumed that there would not have been a lockout and the negotiations would still be going.

    This is EASY stuff!

  22. Deb says: Mar 23, 2011 3:18 PM

    chap, the only person described as having a tantrum is your man Jerrah. Had the owners not intended a lockout, they wouldn’t have been improperly cutting deals with the television networks to funnel money into a lockout fund. And no matter what the players decided to do with their union, that decision didn’t require the owners to shut down league operations. They did that of their own accord. In other words, it’s our way or we’ll take our balls, lock the doors, and go home. Sounds … kinda tantrumlike, doesn’t it?

    You’re right, this is easy stuff.

  23. nesuperfan says: Mar 23, 2011 4:06 PM

    sinatravegas, I must have missed that ruling. Why don’t you enlighten me with a link.

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