The NFL's latest offer to resume mediation with the players may be the best surrender scene since the knights fled from the blood-thirsty rabbit in "Monty Python and the Holy Grail."
If you read carefully, you can almost hear the screams of "RETREAT" from 280 Park Ave. in New York City all the way in Minnesota. Now, it's time for the players and the decertified NFL Players Association to be wise, accept the offer and not take this as an opportunity to bludgeon the league.
After taking a day to digest what happened at the hearing before federal judge Susan Richard Nelson on Wednesday, the NFL's cadre of high-priced lawyers, led by the smooth-talking and gracious David Boies, reported back to headquarters Thursday to give the league and, presumably, the key owners a rundown of what happened. In fact, Dallas Cowboys owner Jerry Jones showed so much interest in the proceedings Wednesday that he had the Cowboys team attorney at Nelson's U.S. District Court in St. Paul, Minn.
In response to that report from Boies and fellow attorneys Gregg Levy and Bob Batterman, the owners extended the equivalent of an olive branch with a white flag attached to it Thursday. The NFL sent a letter to the lawyers for the plaintiffs in the Brady et al v. NFL case requesting that talks continue.
And while the NFL asked that the talks continue at the Federal Mediation and Conciliation Service offices in Washington, D.C., the league offered one huge caveat: The league will not endanger the players' lawsuit by requiring that the players talk to the NFL as a union.
"Our letter to the players' attorneys [Thursday] proposes negotiations with owner involvement under the supervision of Federal Mediation and Conciliation Service Director George Cohen," the NFL's statement read. "A copy has been sent to Judge Nelson. The goal of the discussions would be to resolve all outstanding issues and achieve a global resolution. As part of our proposal, we offered to give the players assurances that they will not compromise any legal position as a result of the discussions."
The critical missing words in that statement are "collective bargaining" and "union." While the hope for the NFL has to be that these talks will lead to a new collective bargaining agreement and that the NFLPA will reconstitute itself as a union, the league is no longer clinging to the notion that it can require the players to be a union against their will. That means that the players get to maintain protection under antitrust laws in the future.
What it also means is that, after three years of demanding that the players give back money, the owners got hit with a heavy dose of reality. They found out that the problem with their arguments isn't that federal judge David Doty, who oversaw the Reggie White settlement for nearly two decades, was unfair to them. It's that their arguments are bad. On Wednesday, Boies, one of the nation's top lawyers, did his best to make something out of nothing, extending discussions again and again. In the end, however, he was like a great French baker trying to make croissants from Play-Doh.
Expectedly, the NFLPA issued a similar statement Thursday saying it would only engage in talks under the protection of Nelson's court.
"The class of NFL players wrote to Judge Susan Nelson [Thursday], embracing her recommendation to participate in mediation under the oversight of the federal court of Minnesota. Though the injunction to lift the owners' lockout remains under Judge Nelson's consideration, the players took to heart her advice given during Wednesday's hearing that the two sides should not delay to meet," the trade association's statement read.
After the NFL made its offer, NFLPA spokesman George Atallah reiterated the players' position.
"Only that we have asked them to agree to [Judge Nelson's] request for federal court mediation," Atallah wrote via text.
While the players have obvious mistrust of the owners after the whole TV contract debacle, the reality is that what the owners are offering in terms of a venue and conditions is both fair and sensible. It is fair because it allows the players to proceed with their lawsuit in court, where it should be quite obvious to owners the players are winning even without the perceived strong arm of Doty.
It also makes sense because the FMCS and Cohen have already spent 17 days going over the issues. Cohen is better versed in the key issues of this negotiation than anyone Nelson could bring in at this point. To waste all the time spent in late February and March working with Cohen would be counterproductive. But the greater point is that what the players need to do is be judicious. Or as the line goes from "White Men Can't Jump": "Sometimes when you win, you actually lose."
First, despite how anyone wants to read Nelson's questions and reactions during the Wednesday hearing, no one can really know how she's going to rule. This is still a game where neither side has any real control over the outcome.
Second, one thing you can be sure of from Nelson's work during the hearing is that whatever opinion she writes will likely be outstanding work. Nelson had a very clear and concise understanding of all the issues in this case. What that means in the larger sense is that whichever side loses in this case, those lawyers are likely going to have a huge problem getting either a stay or a reversal of her decision at the Eighth Circuit Court of Appeals or the Supreme Court, if it gets that far.
Third, even if the players prevail, victory isn't really guaranteed a great result. This is a two-pronged point:
In giving up union status, the players have taken a huge risk. The benefits they have enjoyed, such as medical coverage, minimum salaries and grievance procedures are all gone right now. If the players win, those critical benefits that impact the majority of rank-and-file players could be gone and never come back.
The other issue is that the players benefit in significant ways from having a healthy, competitive NFL that is protected from antitrust violation. Most significantly, the ability of the league as a whole to negotiate television contracts and share the revenue helps all players on all teams. If that changes, there could easily be a significant shift in the league, creating a haves and have-nots scenario similar to baseball.
In other words, the players need the ability to push to protect their rights, but they can't push too far. This battle was never about the players getting more from the owners. It was about protecting what the players already had. Right now, the players have done that. They shouldn't suddenly feel the need to grab for more just because they have the owners on the ropes.
Under the circumstances the owners have proposed at the FMCS, the players can protect their stake and maintain the protection they have under the court if the talks fail. There is no downside in talking, especially at a time when the NFL is reeling worse than Monty Python's Sir Robin in the forest.
- Susan Richard Nelson