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.