Last week, Saints quarterback Drew Brees — a named plaintiff in the Tom Brady antitrust lawsuit and a member of the NFLPA* Executive Committee — said that he doesn’t plan to attend tomorrow’s hearing on the players’ motion to lift the lockout pending the conclusion of the litigation. Albert Breer of NFL Network now reports that several other big names, including Commissioner Roger Goodell, NFL general counsel Jeff Pash, Colts quarterback Peyton Manning, and Brady himself won’t be attending the hearing.
It’s unfortunate, to say the least.
As discussed with Daniel Kaplan of SportsBusiness Journal during Tuesday’s ProFootballTalk Live, players and owners alike need to be present in court to hear the things Judge Susan Nelson (pictured) says, to study her body language, and to generally pick up on the vibes emanating from the bench. When practicing law, I encouraged my clients to attend every key hearing — and tomorrow’s hearing is a key one.
It’s possible that both sides realize the real fight will come before the U.S. Circuit Court of Appeals for the Eighth Circuit, making Wednesday’s hearing a formality of sorts. Still, it’s their first exposure to the judge who ultimately will be issuing key rulings that could shape in many ways the future of the league. And it would be nice for the parties to show respect and deference for the court by, you know, showing up.
Indeed, how can Tom Brady and Peyton Manning and Drew Brees expect Judge Nelson to conclude that they’re being harmed in a way that could never be remedied by the payment of money (a key ingredient in obtaining an injunction before a case is resolved) if they don’t feel sufficiently strongly about the situation to show up in court for the hearing?
Here’s hoping that Judge Nelson makes it clear from the get-go that she’s going to take charge of the case — and here’s hoping that she orders the two sides to spend two weeks or more in non-stop mediation, and that she explains a ruling will be announced if the case isn’t settled during the two weeks of non-stop mediation. Along these same lines, she should ask enough tough questions of the parties to plant real seeds of doubt regarding their respective chances of winning.
It’ll be hard for any tough questions to make much of an impact, if key figures aren’t present for the hearing. Regardless, ordering them back to mediation — possibly with Judge Nelson herself serving as the mediator — could be the best way to get a truly fair deal done.
Maybe they can get a head start on mediation tonight. NFLPA* spokesman George Atallah points out on Twitter that the NFL and the players’ contingent are staying at the same hotel.
If nothing else, perhaps they can employ one of the strategies used by Lawrence Taylor to rob an adversary of a good night’s sleep.