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Clearing the air on the mediated labor talks


Six days ago, the NFL and the NFLPA threw the football-following world a curve by following more than seven days of no negotiations with an agreement to submit to seven straight days of negotiations under the auspices of a federal mediator.

The two sides took a vow of silence (which leaves them only about eight or nine vows short of “monk” status), and scattered hints of progress have emerged. For example, we reported that Tuesday was a “big day” in the process, although no details have emerged as to the specific issues on which progress was made.

We’ve also surmised that the mere fact talks have lasted for six days means that progress is being made. If progress isn’t being made, it means that a cornucopia of big-name management reps, union officials, and players have been wasting their time perpetrating a public ruse.

Rich Hoffman of the Philadelphia Daily News thinks there’s a chance that the two sides have been loitering at the offices of the Federal Mediation and Conciliation Service in Washington.

"[T]hey cannot leave until the mediator dismisses them, or until the end of some time limit that was agreed upon beforehand,” Hoffman writes.

Hoffman is wrong.

Mediation is a voluntary process. The parties can quit whenever they want. They can leave whenever they want. They can tell the mediator to cram it, sideways, whenever they want.

In litigation, the judge routinely appoints a mediator to preside over settlement talks. In that setting, the two sides are on their best behavior because the mediator can then report back to the person charged with making key rulings in the case that one or both parties are being unreasonable or uncooperative.

In this setting, there’s no such accountability.

Hoffman’s conclusion comes from the erroneous belief that federal mediator George H. Cohen’s involvement somehow arises from or is related to last week’s filing of a charge with the National Labor Relations Board by the NFL. It didn’t, and it isn’t.

And even if it were mandatory, the mediator wouldn’t force the two sides to stay if no progress were being made. More than a decade ago, I arrived at the local federal courthouse with a client whose business had been sued by an employee for giving false information during the workers’ compensation claims process. The employee’s lawyer summarized his position for the mediator, I summarized the employer’s position, and it was clear that the two sides had two starkly different views as to the settlement value of the case.

“Well,” the mediator said, “we can sit here and look at each other all day or we can go get something productive done.” And with that the mediation ended, after roughly 30 minutes.

Even if neither the NFL nor the union have abandoned the process for fear of some backlash in the unrelated NLRB action, Cohen wouldn’t force the two sides to sit there if there’s nothing for them to talk about. Each side is represented by outside counsel who likely charge closer to $1,000 than $100 per hour for their time. There would be no reason for Bob Batterman or Jeffrey Kessler to attend the talks if nothing is happening, especially since both the league and the union already have in-house lawyers on the payroll.

Thus, we’d be shocked if this were a P.R. ploy. There are far cheaper ways to protect and/or engineer public opinion that don’t involve parking Commissioner Roger Goodell and NFLPA executive director DeMaurice Smith, numerous other officials, and multiple high-priced outside lawyers in a conference room for a week.

UPDATE: Hofmann (who looks way too old to be sensitive about people spelling his surname incorrectly, especially in light of its unusual spelling) has responded to our post without addressing the most important point. Mediator George Cohen has better things to do than to preside over talks aimed at P.R. and not progress. Cohen is the director of the Federal Mediation and Conciliation Service. He has better things to do than to waste his time, and taxpayer money, participating in talks aimed at creating the impression that the parties are working toward a new labor deal.