MINNEAPOLIS -- The NFL and players returned for the second and final scheduled day of court-ordered mediation before U.S. Magistrate Judge Arthur Boylan on Tuesday morning, with the knowledge that the labor battle had moved significantly in the previous 24 hours.
On Monday night, the 8th U.S. Circuit Court of Appeals issued the NFL a stay-on-appeal, which preserves the league's right to lock out the players until a ruling comes down on the NFL's appeal of Judge Susan Nelson's decision to to issue a lockout-lifting injunction. But more damaging to the players was the language in the decision, which might foreshadow the three 8th Circuit judges ruling against the players after the June 3 hearing in St. Louis.
It is unlikely Boylan will extend the current round of mediation, though he could schedule a date for another round of talks.
The parties arriving on Tuesday morning were chiefly the same as Monday. Leading the contingent were NFL Commissioner Roger Goodell, general counsel Jeff Pash and labor committee members and owners John Mara of the Giants, Art Rooney II of the Steelers, Jerry Richardson of the Panthers and Mike Brown of the Bengals.
NFL Players Association executive director DeMaurice Smith was the most notable name on the players' side. He was joined by Kansas City Chiefs linebacker Mike Vrabel, who was scheduled to be in Minneapolis on Monday, but had his flight cancelled.
Also there was Michael Hausfeld, the lead lawyer for the Eller class in Brady & Eller et al v. the National Football League et al who said that the players got a proposal from the league on Monday night. A source later described it as nothing more than a couple pages of bullet-points providing a framework. So the June 3 hearing date continues to loom over these talks.
"We obviously hoped that the circuit would not grant the stay and that football would come back for our fans and our players," Smith said Monday night. "Right now, our guys are out there working out for free, because they dig the game. The case will be heard by the appellate court on June 3, we look forward to the argument. But look, this is something the players are prepared for. It's a disappointment, obviously."
The 8th Circuit's ruling supported the NFL's interpretation of the Norris-La Guardia Act, saying "We have serious doubts that the district court had jurisdiction to enjoin the League's lockout." And also that the NFL's appeal had a likelihood of succeeding, saying, "Our present view is that Judge Nelson's interpretation is unlikely to prevail."
The decision could move talks along.
The ruling makes it a certainty that the NFL will refuse to enter litigation settlement talks, which backs the players into a corner. Engaging in collective bargaining, which the owners favor, would constitute union activity, make the NFLPA's decertification invalid, and finish the players' lawsuit. The players are unlikely to surrender that leverage yet, so the mediation in Minnesota is one forum where they are protected against the argument that their decertification is a "sham", and the lawsuit is therefore baseless.
"You don't resolve things through litigation," Pash said. "We've been clear on that. And what we need to be doing is focusing all our attention on the process that's going on here in this building, with the assistance of the chief judge and in serious discussions with the players.
"We have an opportunity to resolve this matter and get the game back on the field, and that really should be our exclusive focus -- not litigation, not stays or injunctions, things like that. That's not gonna solve anything. I'm glad that it came out the way that it did. But it's just one step in a process and we need to focus on negotiation. That's the only way we're going to resolve this."
An NFLPA source anticipates a ruling could come as soon as Wednesday from Judge David Doty, who's deliberating on what to do with $4.078 billion in television revenue he ruled the NFL negotiated illegally. The NFLPA asked for an expedited ruling on its request for an injunction, which would put the money in escrow and keep the owners from accessing it.
The possibility also exists that Doty could wait for the 8th Circuit to rule on the appeal.