Attorneys for the NFL and players held a Friday morning conference call to discuss how and where -- and under whose authority -- they are willing to resume mediation during the league lockout.
The call lasted more than an hour, according to sources. U.S. District Court Judge Susan Nelson was on the call and told the sides that the talks must be kept in strict confidence, NFL spokesman Greg Aiello confirmed to The Associated Press.
Jeffrey Kessler, a lawyer for the players, declined comment to The AP.
One notable development was the formal addition of DeMaurice Smith as an attorney for the players. Smith is the executive director of the NFL Players Association, which is now officially a trade group and not a union. Lawyers who practice in a different state must file for approval through the court.
NFLPA spokesman Carl Francis confirmed to The AP that the move allows Smith, who practices law in Washington, D.C., to participate in any mediation sessions that might take place under Nelson's supervision in St. Paul, Minn.
The NFL also added another attorney, Robert M. Cooper, according to court documents filed late Friday. Antitrust and sports law are among the areas of expertise for Cooper, who's a partner in NFL outside counsel David Boies' Washington, D.C., law firm.
Boies was the lead lawyer for the league during Wednesday's hearing, in which Nelson heard the players' case for an injunction to lift the lockout. Nelson said it would take "a couple of weeks" for her to issue an ruling.
The primary differences in opinion sit with the players requesting that Nelson appoint a mediator and hold the sessions in federal court, and the NFL asking for them to return to the Federal Mediation and Conciliation Service, where the sides went through 16 days of mediation in late February and early March.
Those talks failed to result in a new collective bargaining agreement, and the old one expired. The NFLPA decertified, saying it no longer represented players in bargaining under labor law, which allowed them to sue the league under antitrust law. Owners locked out the players, creating the NFL's first work stoppage since 1987.
The players say the lockout is illegal, and the owners claim the decertification of the union was a negotiating ploy.
The sides in the Brady et al v. the National Football League et al case submitted a total of four letters Thursday discussing Nelson's suggestion that the league and players re-enter mediation in labor talks.
The players first responded to Nelson's offer to facilitate the discussions in federal court with a letter from attorney Barbara Berens, who wrote: "We think this is an excellent suggestion and are prepared to engage in such mediation without delay."
Berens also wrote: "Our agreement is, of course, contingent on the NFL defendants' agreement that they will not attempt to use this, our willingness to mediate, against the Brady class in some way, for example by arguing that such mediation efforts constitute 'collective bargaining' or otherwise arise out of a "labor relationship."
A letter from NFL general counsel Jeff Pash came next, suggesting a return to FMCS: "After spending the better part of three weeks with us, they know the issues, they know the parties, and I think we all agree that they were effective at getting both sides to look openly at each other's positions and try to find solutions."
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Pash offered "owner involvement" in such talks and added: "We understand that you will want appropriate assurances that the players will not compromise any legal position as a result of entering those discussions. We are prepared to give reasonable and appropriate assurances to that effect."
In a third letter, NFLPA outside counsel Jim Quinn replied directly to Pash by writing: "Your invitation to 'resume' discussions in front of Mr. Cohen makes no sense as collective bargaining between the NFLPA and the NFL is over."
Finally, in the fourth and final letter of the day, Boies wrote to Nelson, reinforcing the league's desire to continue mediation under the auspices of the FMCS and emphasizing federal mediator George Cohen's background with this case.
"Put simply, FMCS has a (16-day) head start over any other potential mediator," Boies wrote. "And given that time is of the essence, that is of great importance."
Boies added: "I would emphasize that we are not asking the players in any way to abandon their chosen litigation forum or to compromise any of their legal claims. In that light, we would respectfully request that the court consider using its good offices to encourage the players to resume" talks at FMCS.
Nelson received another letter Thursday accepting her offer of facilitating mediation, this one from a lawyer representing Hall of Famer Carl Eller and other retired players, whose lawsuit was combined with the case involving New England Patriots quarterback Tom Brady and nine other players.
The Associated Press contributed to this report.
