With the NFLPA* ready and willing to resume mediation in the wake of Wednesday’s hearing in Minnesota regarding the motion to end the lockout, the owners still have no interest in discussing a settlement to the lawsuit pending against it.
“We don’t need a settlement of this lawsuit,” league lawyer David Boies (pictured with his personal bodyguard, Elwood Blues) said, per the Associated Press. “What we need is a collective bargaining agreement so that players can go on playing and the league can put on games. Until we have that, we’re not going to make any progress.”
We realize that Boies is a great lawyer who can fashion compelling arguments and mesmerize juries and judges and (most importantly) clients. But he is simply parroting in this instance the same tortured message that the league has been pushing ever since he first captivated the owners at their meeting last month in New Orleans, prompting them to conclude that, one way or another, they will defeat the effort to lift the lockout.
A settlement of the lawsuit can become a CBA. We know this because that’s precisely what happened in 1993, when the league and the players settled the Reggie White antitrust lawsuit, and the settlement became the labor agreement that, with extensions, remained in force for 18 years.
This time around, the league desperately wants to avoid having Judge Nelson supervise the CBA for the next 18 years. But, as we’ve said time and again, the parties can negotiate the settlement in a way that does not empower her or anyone other than an arbitrator to resolve disputes. Perhaps the league simply doesn’t want to make the concession(s) that would be necessary to cut Judge Nelson out of the process. Regardless, the position taken by the league and adopted Wednesday by Boies means that no talks of any kind will occur until the Brady case is resolved.
Why, then, hasn’t Judge Nelson ordered the parties to return to mediation? Though she still could do so at any time, it’s possible that she’s trying to gauge for herself just how hard-headed the NFL really is as she decides whether to lift the lockout. And if the league refuses to resume talks within the next two weeks, Judge Nelson can mention in her written ruling lifting the lockout that she gave the parties every opportunity to resolve their differences, but that the NFL chose to dig in.
Our guess is that the league assumes it will lose at this level, and that the league is hoping to secure a reversal before the U.S. Court of Appeals for the Eighth Circuit. Though Judge Nelson’s decision to lift the lockout would be entitled to some deference under the so-called “abuse of discretion” standard, the league will continue to focus on threshold legal questions regarding the ability of a union to shut down and sue as a tactic in a labor dispute. The appeals court will explore those question from scratch, and at this point the NFL seems to believe that it’ll have a much better chance at winning when presenting its case to a randomly-selected three-judge panel in the first instance or, possibly, a rehearing before the entire full court.
And there’s good reason to think the league will fare better before the Eighth Circuit, which does its business primarily in St. Louis. Of the 16 judges currently on the court, 11 were nominated by the one of the George Bushes, three were nominated by Ronald Reagan, two were nominated by Bill Clinton, and a senior-status judge was nominated in the late ’60s by Lyndon Johnson. Given that the court is so heavily dominated by judges who secured their positions via Republican administrations, the league likely has a high level of confidence that the pro-business ideology demonstrated by most conservatives will, in the end, allow the lockout to continue.
In other words, don’t get too excited if/when Judge Nelson orders the lockout to be lifted later this month. And, in the interim, don’t hold your breath for any further settlement discussions between the two sides — unless Judge Nelson orders them to do so.