The NFL And Classic Battles For Leverage In A Negotiation

As a football fan and as a lawyer I am fascinated by the on-going labor negotiations in the NFL.  The negotiations have proved to be a classic case of each side fighting for leverage over the other side.  For example, the owners sought leverage by extending television agreements so that the payments from the broadcast companies would continue through a lockout… thus, theoretically the owners would be able to outlast the players in any protracted lockout.  The players however combated this leverage through litigation, arguing that the “lockout insurance” violated the collective bargaining agreement.  Ultimately, the judge sided with the players and determined that the owners violated the CBA.  Poof, there went a chunk of owners’ leverage in these negotiations.

Now the players’ are seeking negotiation through the threat of decertification of the players’ union.  Thus, the owners would be required to deal directly with each player.  However, the real risk for the owners involved with decertification is violating anti-trust laws as competitors are not supposed to join together for a collective good.

Interestingly, the owners and players’ union continue to work toward a negotiated resolution.  I suspect that each side is conducting their cost/benefit analysis as well as reviewing their BATNA (Best Alternative To A Negotiated Resolution).  Thus, the owners must determine how bad is the deal that the players are proposing compared to a lack of revenue during a lockout and potential lawsuit.  The players are conducting the same analysis… if they cannot reach a deal, how long can they go without a paycheck.

The players reportedly threatened to bring suit to decertify the players’ union and up until now their lead lawyer, Jeffrey Kessler, was part of the negotiation.  Mike Florio of speculates that Kessler was “benched” by the union, so that the owners and the players’ union could work out a labor agreement. You can read Mike Florio’s post here.

However, I look at this another way… the players’ union is angling for even more leverage over the owners.  Your lead trial attorney is not necessary for a labor negotiation.  In fact, your lead trial attorney may be of more use to you preparing for trial.  If I am the union, I have Kessler sit out the negotiation and start preparing the matter for trial.  Then, at the negotiations, I inform the owners that trial counsel is getting ready for litigation… just to add a little bit more pressure to the owners.

Ultimately, I believe the best way to obtain a favorable negotiated resolution is to be prepared for trial.  Ultimately, in litigation, you are going to settle a case or go to trial… you may as well be as prepared as possible in the event the case does not settle.

3 thoughts on “The NFL And Classic Battles For Leverage In A Negotiation

  1. Interesting take but don’t you think that the lead attorney has been benched because the players simply are not impressed with his performance. I mean, I’m not benching my QB in the third quarter so he can get ready for the fourth quarter. I’m benching him because there is a better chance at success with another person in there. Could it be that Jefferey Kessler is the attorney version of Donovan McNabb?

  2. You’re entitled to your theory, but it’s based on a critical error. Jeffrey Kessler is not just the NFLPA’s trial lawyer, he’s been their chief negotiating lawyer as well for over 20 years. He’s been involved in every single CBA negotiation and every single minor tweak to the CBA (that occurs multiple times per year but is rearely reported). He’s not just some courtroom pitbull. The fact that he’s been asked not to be present at the meetings (and knowing him, he probably fought that decision tooth and nail) is most likely a product of his long and combative history with the NFL Managament Council and the owners. Sometimes, in order to get things done, you need to get the hostility out of the room, which may be why certain people on both sides have not been in the mediation sessions. I’m not entirely sure that this means an end to Kessler’s long-standing service for the NFLPA (as Florio predicts without support), since Kessler still knows the issues better than anyone and is an extremely well-respected lawyer.

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