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Boies makes compelling case for using Cohen as mediator

David Boies, attorney for the National Football League, speaks to the media after attending a federal court hearing regarding labor negotiations between the NFL and the NFL Players Association Reuters

In the most recent item posted regarding the mediation over where the mediation will occur, we mentioned a flurry of letters exchanged on Thursday by the lawyers.  PFT has obtained a copy of the letter from David Boies to Judge Nelson, and Boies makes a compelling case (in our view) for using Cohen as the mediator going forward.

“There are substantial reasons to have these issues addressed in the context of a mediation conducted by the [Federal Mediation and Conciliation Service],” Boies writes.  “As Your Honor probably knows, the NFL and NFLPA spent 17 days in FMCS-supervised mediation, during which time the Director of the FMCS (himself a Presidential appointee) and his principal deputy gained a thorough and detailed understanding of the many issues that must be resolved.  Put simply, the FMCS has a 17-day head start over any other potential mediator.  And given that time is of the essence, that is of great importance.”

Boies stops short of asking that Judge Nelson officially preside over Cohen’s efforts, but as explained in our most recent item that would give Cohen actual power over the parties.

The letter also reiterates that the NFL will provide “reasonable and appropriate assurances” that participation by the players in negotiations with the FMCS would not affect the players’ legal position regarding the validity of decertification of the union.

But Boies’ letter omits reference to one of the key issues driving the players to seek mediation through Judge Cohen.  The players want the final agreement to be subject to supervision by the federal court.  The owners, after 18 years of having Judge Doty resolve certain disputes under the expired CBA, don’t.

Either way, the players and the owners will have protection against potential violations of the CBA.  Typically, all disputes in a labor agreement are resolved via binding third-party arbitration.  In the case of the expired CBA, some types of disputes went to arbitration, and some went to a Special Master, with Judge Doty reviewing the Special Master’s decisions.

In the grand scheme of things, it’s a small issue.  At this point, however, each side wants it their way, and no one is willing to give on that issue — possibly in the hopes of securing a significant concession on some other point when they do.

Either way, this isn’t the kind of issue that should be holding up the process of working out a deal, and here’s hoping that when the conference call with Judge Nelson commences at 10:00 a.m. ET on Friday, Judge Nelson will communicate that point to the parties.  Strongly.

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23 Responses to “Boies makes compelling case for using Cohen as mediator”
  1. chapnastier says: Apr 8, 2011 9:20 AM

    I find it odd that we really need a judge to tell grown men to get back to negotiating. This is pathetic.

  2. commoncents says: Apr 8, 2011 9:27 AM

    The players teamed up to try and make a compelling case for not using Cohen but all they could muster was tears.

  3. geo1113 says: Apr 8, 2011 9:28 AM

    I believe the stumbling block is the amount of financial information that they player seek and the owners are willing to provide. The union stood hard and fast on their request for 10 years of audited financial statements for each team. The owners first submission was more than they have ever released and they signaled a willingness to providre more to an independent 3rd party for verification. When the player realize that how the owners distribute their profits and how they run their franchises is none of their business, then real negotiations can begin. I mean seriously, what is the union planning to do, tell Jeff Lurie his wife can’t be on the payroll.

  4. tednancy says: Apr 8, 2011 9:29 AM

    Whether or not the next CBA is supervised by a federal court is not a “small issue.” It’s the players’ ace in the hole. Without judicial supervision, the players have to negotiate according to the time honored rules of the marketplace.

    With judicial oversight, the players don’t have to rely on marketplace merit in a dispute. They don’t have to compromise with the owners according to the true demand for their services. They can simply run to court, secure a ruling favorable to them, and laugh all the way to the bank.

    When one side in a dispute wants a judge on their side and the other doesn’t, it tells you who really has the stronger case. In this case, the owners don’t need a handicap, but the players do.

  5. rpiotr01 says: Apr 8, 2011 9:39 AM

    The league is not going to tolerate being under the watchful eye of a judge like Judge Doty for another 15 years. It’s a deal breaker and it should be a deal breaker. Players need to concede that one.

  6. Rhode Island Patriots Fan says: Apr 8, 2011 9:47 AM

    The owners should make it clear—via a “drop dead” offer—that judicial supervision of the new CBA is a show stopper. Fundamentally speaking, this is a labor dispute, not a legal dispute. The owners should be prepared to compromise further on revenue-sharing, among other things, but should not yield an inch on judicial oversight.

  7. stevecmh says: Apr 8, 2011 10:00 AM

    Just heard on SiriusXM that both sides have a telecon with Judge Nelson to discuss mediation this morning.

    That conversation should be very interesting as the owners tap dance around the issue of participating in mediation under the auspices of the court.

    Of course, the players will be doing the same regarding the use of the FMCS and George Cohen for mediation.

    On SiriusXM, the suggestion was made to use George Cohen as mediator with oversight from Judge Nelson. The hosts were convinced they had a winning idea.

    Unfortunately, I doubt the owners will concede to mediation under the federal court regardless of who the mediator is.

    The players may gain a temporary PR victory in this exchange by agreeing to use Cohen as mediator under Judge Nelson.

    It’s a clever gambit but I don’t see that happening unless the judge really insists, and even hints at the probable outcome of the suit before her court.

  8. jimmycover says: Apr 8, 2011 10:07 AM

    You are absolutely right, the players should concede this one, however, they should not do it for nothing. They need to get something in return from the owners, such as the full 10 years disclosure they asked for.

  9. spartyfi says: Apr 8, 2011 10:08 AM

    Not only are all parties acting childish and greedy, but now they are costing our government that is about to shut down for financial reasons to incur more expenditures.

    You want to fix the budget, stop wasting tax payer money on garbage like this!!!!

  10. ftblfan9 says: Apr 8, 2011 10:28 AM

    What the players have learned over the past years is that the oversight by Doty was ultimately the best leverage they could have. Gaining Federal oversight of the CBA is a massive deal for them.

    While I generally tend to lean toward the owners side, if you agree with Doty what the owners tried to do with TV revenue is exactly why the players will demand (some would say reasonably) the Federal oversight of the CBA.

  11. blantoncollier says: Apr 8, 2011 10:30 AM

    The outcome of the conference call will be interesting. DeSmith has based his entire strategy on using the courts to break the NFL.

    Mr. Boies has called his bluff.

    Lets see how De and the players dance on this one.

    When the Players dont agree to Mr. Cohen serving as the Mediator, then finally we can all see the Emperor has no clothes.

  12. eagleswin says: Apr 8, 2011 10:30 AM

    jimmycover says:
    Apr 8, 2011 10:07 AM
    You are absolutely right, the players should concede this one, however, they should not do it for nothing. They need to get something in return from the owners, such as the full 10 years disclosure they asked for.
    ——————————-
    No. There should be no concessions for this. The players have wanted either the judicial hammer or major concessions for no judicial oversight since this all began. What you are suggesting is what the players want, either to have the hammer or to bend the owners over backward.

    Regarding the “10 years of financials” rallying cry, it’s getting really old and for a glimpse of what the players really want to do with it, take a look at the NBA negotiations. The owners opened their books completely and the players are arguing about basic accounting concepts and fighting over every nickle and dime the owners spend. They are also trying to go after the income in the owners NBA related businesses.

    I’d bet good money those owners fully regret opening their books to the players. I’d be very surprised if there is basketball this fall.

  13. pheagles says: Apr 8, 2011 11:24 AM

    I heard the NFLPA* was sending Big Ben to sway the judge to the “dark side.” The retired players are going to send Brent Farve to assist.

  14. thelockoutbeard says: Apr 8, 2011 11:38 AM

    It is funny that both sides say that they want to talk and get a deal done but when it comes down to it neither side wants to talk the way the other does. We need to get them in a room together and hash this thing out! The longer it drags on the more resentment each will have for the other side!

    The Lockout Continues! As the Lockout grows on so does my beard, I am growing a lockout beard. I am not shaving until they start playing! Please follow me on Twitter @TheLockoutBeard

    -The Lockout Beard-

  15. tednancy says: Apr 8, 2011 11:59 AM

    Enough with the “Lockout Beard.”

    Besides, isn’t it in your interest for the lockout to continue?

    Just give it a rest

  16. dontcallmepete says: Apr 8, 2011 12:06 PM

    Without judicial supervision, the players have to negotiate according to the time honored rules of the marketplace.
    ————————————-

    The “time – honored rules of the marketplace” In what marketplace are people drafted? Refusal to allow the most valuable employees to even listen to offers from your competitors (franchise and transitional tags) What marketplaces are you almost guaranteed to sustain an injury and when you do are given pain pills and injections to get you back to work where you may sustain further injury.

    Judge Doty hasn’t ruled on all issues in which the NFL has lost. They’ve lost because they’re a monopoly and while yes, no one is asking guys to play pro football it’s also true no one is asking guys to own a team or asking anybody to watch the game.

    Baseball, the NBA and NHL have franchises that are sold all of the time. Why aren’t NFL teams constantly changing hands? My god the owners just charged people $200 a head to watch the game OUTSIDE of the stadium while not making sure that all ticket holders had seating and you guys call the players greedy. You don’t even know the issues.

    Know why it is a partnership between players and owners? Because the owners need a union to establish work rules. Plain and simple and they’ve stated so. If all of you who complain about players really meant it then why aren’t the Arena league and the UFL as popular as the NFL? Jeez, even the commissioner asked fans not to take sides.

    What have you missed? Training camp? Preseason games? Mini camp? Everybody on here can tell me who Roger Staubach is but how many can tell me who owned the Cowboys when he played? It doesn’t even involve us yet and is likely to never do so.

    Real Marketplace? Give me a break. The real marketplace involves competition. Anybody not in a city that had one of the original NFL franchises would not have a franchise without competition (AAFC & AFL) and the court system.
    How anybody could write that DeMaurice Smith is trying to “break the NFL” is so stupid that it’s funny. Stop watching and see who comes after you.

  17. sdboltaction says: Apr 8, 2011 12:06 PM

    @chapnastier

    You give “grown men” too much credit.

  18. thefiesty1 says: Apr 8, 2011 12:46 PM

    Why don’t they just leave the lawyers out of this? All they will do is continue to screw up and get more legal fees.

  19. bushdoctor504 says: Apr 8, 2011 1:27 PM

    this site has a serious Astroturfing problem… it seems like 90% of the comments support the owners… there is no way that’s representative of the public… so the NFL is making frivilous attempts to gain public support… Mr. Goodell, what’s the starting salary for the astroturfing clowns you hired? Do They get benefits unlike retired players?

  20. bushdoctor504 says: Apr 8, 2011 1:35 PM

    “Put simply, the FMCS has a 17-day head start over any other potential mediator. And given that time is of the essence, that is of great importance.”

    that is NOT compelling!
    If time were truly of the essence, they would have an agreement by now… this is such BS…

  21. realfann says: Apr 8, 2011 3:46 PM

    So let’s go back to a mediator who had 17 days and

    FAILED??

    That’s compelling?

    errrrr, no it’s not.

    Definition of insanity: repeating the same thing and expecting a different outcome.

    Cohen had no power so the owners just played games with him and spent all their time provoking the players to decertify.

  22. gnwacko says: Apr 9, 2011 10:24 PM

    dontcallmepete says:

    Judge Doty hasn’t ruled on all issues in which the NFL has lost. They’ve lost because they’re a monopoly and while yes, no one is asking guys to play pro football it’s also true no one is asking guys to own a team or asking anybody to watch the game….

    If all of you who complain about players really meant it then why aren’t the Arena league and the UFL as popular as the NFL?

    ——————————————

    Do you have any idea what a monopoly even is? The fact there is an Arena League and a UFL and a CFL means the NFL is not a monopoly. Any player in the NFL can go to any other league and seek immediate employment, and get it. No player has to be a slave to the NFL if he wants to play football. He can play without making money for the mean NFL owners if he so chooses.

    What? Players don’t WANT to play for those other leagues as much as they want to play in the NFL? They make more money in the NFL? So what, not relevant. The NFL does not own 100% of the market of football, and that’s the determining factor of what makes a monopoly, not what players desire.

    Oh, and the only reason the NFLPA got as much as they did in decisions under Doty is that Doty is a lousy judge. Judges are supposed to be impartial, and Doty is anything but. You’d have a harder time finding finding a union shill anywhere that is more bulldoggish than Doty.

  23. gnwacko says: Apr 9, 2011 10:42 PM

    bushdoctor504 says:

    this site has a serious Astroturfing problem… it seems like 90% of the comments support the owners… there is no way that’s representative of the public… so the NFL is making frivilous attempts to gain public support… Mr. Goodell, what’s the starting salary for the astroturfing clowns you hired? Do They get benefits unlike retired players?

    —————————————

    FYI, I’m retired military, on disability. I get nothing for making my comments, I’m just sick of seeing unions screw things up.

    A union’s top interest is the union itself. Second is the interests of its senior members. Third is the interests of the junior members. Everyone else is just in the way. That adversarial approach can get members more and more in money and benefits, but when it backlashes, it gets really ugly for the members (but somehow the union keeps on ticking, funny how that works).

    Unions caused the economic collapse in Pittsburgh a few decades ago. Unions had a direct role in Detroit losing market share that it will never get back. Unions caused Boeing to build a new (non-union!) plant in South Carolina rather than expand their facilities in Washington.

    So maybe, just maybe, that “90%” is closer to being representative than you want to believe. Regardless, you don’t get to dismiss my opinion as paid support for the NFL. Well, I suppose you can, but don’t expect anyone to take you seriously — you’d be just another nut people can ignore.

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