More sports mediation: Dodgers/FOX

Today begins a mediation between MLB's Los Angeles Dodgers and Fox Sports who have agreed to meet at the direction of U.S. Bankruptcy Judge Kevin Gross. As with many other recent entries on my blog, the mediation is judge-directed and early in the proceedings. Apparently, Joe Farnan, the mediator who previously negotiated a truce between the League and McCourt to sell the Dodgers, will conduct the mediation. It seems a November 30th hearing will proceed as scheduled under the current court order if a deal is not reached. The bankruptcy judge expressed interest in resolving the Dodgers case as soon as possible, so the team can prepare for the season. The Dodgers asked for permission to market their television rights as part of the team sale-- a move opposed by Fox as a contractual violation. Fox has asked the judge to dismiss the Dodgers from bankruptcy. In a pending collateral action, the Dodgers have sued Fox and Fox has sued the Dodgers. Judge Gross ordered both suits put on hold "pending the conclusion of the mediation." See posting by Bill Shaikin here: http://latimesblogs.latimes.com/dodgers/2011/11/dodgers-fox-head-to-mediation.html

NBA Tuesday - Perhaps these guys could just mediate?

Today's NBA lockout negotiations are expected to decide whether games will be lost this season and just how many. The path to sports labor peace leads to the bargaining table, not to a courthouse. Rather than a protracted court battle between owners and the players' union, nasty internal strife, not to mention no professional basketball (e.g., here in a town with the star center in his last contract year, playing in a new arena that was promised hosting an all-star game), the parties should mediate, just as the NFL did. http://bit.ly/prn2JT Last month, NBA players' union members were worried enough about the possibility of agents pushing decertification that they had DeMaurice Smith of the NFL Players Association to speak to locked out basketballers about the pros and cons of dissolving a union, giving some background on what it was like with his players going through the lockout. http://goo.gl/ueY3p Through negotiations and judge-directed mediation sessions, footballers and owners bargained before the NFL players' union suffered any judicial setback in the Brady v. NFL antitrust case, or worse-- if they won the case. Such a loss would have crippled the union's decertification threat in the future. A union win could have prohibited teams from collaborating on contracts. http://tinyurl.com/3qn89ao Another incentive to settle the matter now is that public opinion of sports leagues has bordered on critical in recent years; though die-hard fans will endure. Avoiding the surely negative effect of these monetary disputes as early as possible (especially in this down economy) may stop harm to morale and can be achieved in a less public way though the mediation process.

"It ain't over till it's over"

The NFL lockout lawsuit spawned a claim by retirees which wasn't quite resolved in the bigger deal between the league owners and players.

During a case management conference, Judge Nelson quickly suggested talks with Magistrate Judge Arthur Boylan, who brokered the original agreement that ended the lockout but did not settle the retirees' still-pending lawsuit.

Judge-directed settlement talks have been a theme of the recent negotiations in this litigation. In motivating the claimants to settle, she hinted that the case would be difficult likening it to "pushing a rock up a hill."

However, rather than ordering mediation, she told the three sides to sit down with Boylan for informal talks. Subsequently, lawyers for all sides said the discussions produced no agreement or date for additional mediation.

Perhaps a formal order of referral to mediation would have made them take things more seriously? The next scheduled hearing is not until September 15th.


See more at: http://bit.ly/r49vZa

Retired NFL Players Seek Inclusion In Mediation

The unusual goal of a newly filed complaint is to have Judge Nelson, under whose orders the existing lawsuit's mediated negotiations are being held, instruct the mediator, the league and the current players to allow representatives of the retired players to be active participants in the negotiations.

The latest class-action complaint is aimed against the teams, the league, the players named in the Brady v. N.F.L. lawsuit and DeMaurice Smith, the head of the N.F.L. Players Association. It asserts that the sides are violating antitrust laws by negotiating settlement terms that improperly encompassed the rights of retired players in the time since the N.F.L.P.A. renounced its union status. Namely, it alleges the are conspiring to depress the amounts of pension and disability benefits to be paid.

Apparently, lawyers for the present players e-mailed to attorneys for retired players stating they would negotiate issues like the salary cap and free-agency rules, while lawyers for retired players would be allowed to suggest retired-player issues in connection with proposals before the mediator, Magistrate Judge Arthur Boylan.

Certainly, these developments will impact the pending NFL suits and may even influence the NBA litigation.

See report at: http://nyti.ms/iRsNxn

Potential for Mediation in NBA dispute - will it go any better than NFL?

The professional basketball players' union filed a complaint with the federal government’s National Labor Relations Board accusing the league of bargaining in bad faith. Typically, a ruling can take 30-60 days. NBA owners are accused of “circus bargaining” or never substantively changing offers during negotiations.

In football, NFLPA elected to de-certify so that its players are no longer part of a union and thus the NFL has no right to carry on a lockout without violating anti-trust laws. That case is in the hands of the Eighth Circuit. That appellate court may rule that the players’ de-certification is little more than a bargaining tactic.

No mediation has been set in the NBA matter. However, in the NFL case, the district judge-directed mediation by a federal magistrate judge came with many marathon conferences, but did not yield a settlement. The parties are currently supposedly engaged in direct talks, perhaps signaling that process was not thought to be as productive. Certainly, the NBA will be watching the NFL and only fans stand to lose.

http://aol.sportingnews.com/nba/story/2011-06-29/labor-expert-outlines-legal-issues-around-lockout

NFL and Players reach impasse for now

It seems the parties, and mainly the league, are humoring the Magistrate Judge Boylan by merely participating in the court-ordered mediation process, while really holding out for potential leverage in negotiations potentially to be gained by a ruling forthcoming from oral arguments next week. This is a typical tactic seen in "bet the company" type litigation. Surely, an appeals court ruling can change the tide (and likely the season) and will provide either a stimulus for continued talks or the outright victory for one side. However, the lawsuit is still pending before U.S. District Judge Nelson, and the legality of the lockout has essentially become the fight for now, with both sides arguing over whether Judge Nelson has jurisdiction in the case, and over irreparable harm.

http://bit.ly/jYTxhn

http://bit.ly/ko5oCP

Additionally, the league was granted an extension to respond to the players' briefs in the "Tom Brady vs. NFL" antitrust lawsuit. The response was originally due this week, but will instead be pushed to June 6th.

The new date is noteworthy because it is three days after the appellate argument mentioned above, to determine if the lockout should be lifted.

The NFL's brief was filed on May 9, with the players' coming in last Friday. The NFL now has two weeks to craft a response.

http://bit.ly/jlnxoD

NFL Players, League giving ADR another try to reach end zone

Mediation resumes in NFL, players dispute

Meeting again to negotiate and sworn to secrecy about specifics of the court-ordered mediation, neither the league nor players provided much insight about where they're at in their dispute over the division of $9 billion in the sports business. As mentioned in my prior post on this case, Judge Nelson is a stickler for settling difficult cases and the court has indicated it wants to continue with everyone talking...

http://bit.ly/ewAspm

NFL Lockout - Mediation in the spotlight

Though the NFL and the NFLPA agreed to an ultimately failed initial mediation, at least the primary problem of this negotiation, the lack of trust between the two sides, was exposed. George Cohen, a highly experienced federal mediator with a background in sports, apparently found no flexibility in the preliminary search for common ground.

Now, Judge Nelson, a recent Obama appointee, in charge the National Football League players’ lawsuit against the NFL, may use her reported skill in resolving disputes to urge players and owners to settle their emotionally charged conflict over billions in annual revenue. Judge Nelson's decision, whether or not to enjoin the lockout, is going to affect enormously the leverage on either side. She spent ten years as a Magistrate Judge reportedly strongly encouraging parties to settle their disputes over the complaints of eager trial lawyers...

http://www.washingtonpost.com/sports/nfl/nfl-lockout-judge-susan-nelson-has-reputation-as-a-master-mediator/2011/03/24/AFrBIJrB_story.html