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Judge, players' counsel hold 4-hour pre-mediation session

MINNEAPOLIS -- The process of federally mediated settlement talks between the NFL and the NFL Players Association opened Tuesday morning in the chambers of U.S. Magistrate Judge Arthur Boylan as counsel for the Brady and Eller classes met with him.

Judge Susan Nelson, who heard the Brady class' request for an injunction to lift the NFL lockout Wednesday, ordered the mediation Monday and consolidated the cases, known as Brady et al v. National Football League et al and Eller et al v. National Football League et al.

"The mediator was very open, it was a very constructive session, he heard from the Brady plaintiffs and the Eller plaintiffs as to what issues they considered that need to be addressed during mediation," said Michael Hausfeld, lead attorney for the Eller class. "The mediator intends to have the same type of session tomorrow with the league (counsel), and then hopefully to bring everybody together on Thursday to see what areas of agreement can be achieved, and how quickly."

The players' contingent included three lawyers from the Brady class and a six-man team, including Hall of Famer Carl Eller, from the Eller class. The Brady class was represented by NFLPA outside counsel Jeffrey Kessler, outside counsel Jim Quinn and local counsel Barbara Berens.

The session began at 9 a.m. CT, with staggered 45-minute lunch breaks for each group. The Brady class counsel left at 1:45 p.m., and the Eller class counsel departed at 2 p.m. In total, the Brady class counsel spent four hours in Boylan's chambers, and the Eller class counsel was there for 4 hours, 15 minutes.

One issue broached, in light of Nelson granting an order to consolidate the cases, was helping Boylan understand how the two sets of plaintiffs were aligned.

"What happened today at mediation was, again, for the mediator to become knowledgeable about the positions of the Brady plaintiffs and the Eller plaintiffs, and understand their overlap and their positions on the respective issues," Hausfeld said.

The plan has been for Boylan to catch up on the particulars of the issues between the parties Tuesday and Wednesday before bringing the sides together Thursday morning.

Thursday's talks will represent the first negotiating sessions between the league and the players since 16 days of discussions at the Federal Mediation and Conciliation Service before mediator George Cohen ended March 11. That also was the day the the NFLPA decertified itself as a union and NFL imposed the ongoing lockout.

At a hearing about the players' lockout injunction request last week, Nelson urged the sides to get "back to the table" and said negotiations should take place at "not the players' table, not the league's table, but a neutral table, if you will."

The next day, the league and the players both expressed a willingness to talk, though they disagreed on where and how they wanted to do it. The players said they were willing to engage in mediation overseen by Nelson. The NFL said it wanted to resume talks with Cohen in Washington.


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The players got their wish, with the talks held under court supervision and not in the collective bargaining setting. Nelson's order referred to the mediation "as a form of Alternative Dispute Resolution," a legal term for the revival of negotiations.

Nelson said at the hearing she would take "a couple of weeks" to rule on the injunction. On Monday, she noted that her order to resume mediation "will not have the effect of a stay on this litigation," and that she would rule "in due course."

Nelson's order called for legal counsel for the parties "as well as a party representative having full authority" to attend. She also said that participation in the mediation "and any communications conveyed between the parties in this process, shall not be admitted or used against any party in any other proceeding or forum, for any purpose."

That would appear to address the players' concern that any talks held after the dissolution of the union could be construed as collective bargaining -- and thus bolster the NFL's claim that the dissolution was a "sham" merely intended to strengthen the players' position at the bargaining table.

Last week, Pash sent a letter to Quinn, with a copy going to Nelson. Pash wrote that the league is "prepared to give reasonable and appropriate assurances" that the players' legal position -- not a union protected by labor laws but a group of players suing under antitrust laws -- would not be compromised through any new talks.

The Associated Press contributed to this report.

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