ST. LOUIS -- Throughout the nearly three-month NFL lockout, the league has been as consistent as it's been insistent in saying negotiation -- not the courts or litigation -- will put the game back on the field.
Well, the league may be wrong.
I'd suggest it's the courts that produced this week's "confidential" talks -- and not because of anything Judge Susan Nelson did in April when she ordered court-supervised mediation, but because of what the Eighth Circuit Court of Appeals did in response to -- you got it -- litigation, and because of what it could do next.
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Namely, allow the NFL to extend the lockout indefinitely.
That, of course, is subject to what happens here Friday morning, when lawyers for both the NFL and its players will appear before three judges in a hearing on the league's motion for appeal of Judge Nelson's injunction to lift the lockout.
The league says this is a labor dispute, the players say it's an anti-trust action and let's just leave it at that. All you need to know is that the three judges who hear the motion are the same three who granted a permanent stay of Nelson's ruling, with their decision worded so strongly they seem destined to favor the NFL when they make their decision in an estimated two to three weeks.
I said seems because nothing's for certain. And that's where the court's impact on talks comes in -- because the combination of crucial decisions and timing is starting to have an impact.
Look, the players aren't idiots. They know they took two steps back with the permanent stay and that most legal experts expect them to lose on appeal. They also know they can't hold on forever. So maybe, just maybe, they're more receptive to a settlement than they were before.
But owners aren't stooges, either. First of all, they could lose on appeal if one of the judges veers off course, though that doesn't seem likely. Second, they make money when their teams are on the field, not on the sidelines, and they'd like to get this thing settled sooner, not later -- one reason they keep pitching the idea of negotiation, not litigation.
Well, their message may have gotten through because we have news the NFL and its players this week sat down and had -- and this is no misprint — substantive talks on their own. Imagine.
I don't know what drove the two sides back together, but I have a pretty good idea -- and it's leverage the NFL gained through last month's permanent stay. I mean, let's be honest: For the moment, the NFL holds the upper hand, and it knows it. But the players know it too, which is why they may be more flexible now than before.
That doesn't mean they're wrong. It just means they're waking up to reality, and the reality is they're playing from behind. I will say it again: That could change if the Eighth Circuit Court of Appeals rules against the NFL later this month, but that isn't expected. So the question becomes: If the league wins there, how much longer do you play a losing hand?
And that's where the timing comes in. With each setback, you may be looking at diminishing returns, so there comes a time when making the most of what you're left with makes sense -- and that time may be soon.
Let me explain: When players walked out of the March 11 mediation in Washington, decertifying shortly afterward, they said they were insulted by the league's offer -- with NFLPA executive director DeMaurice Smith calling it "the worst deal in the history of professional sports."
Players rallied behind that, then rallied behind Judge Nelson's verdict. But then the Eighth Circuit Court of Appeals was heard, and, suddenly, "the worst deal in the history of professional sports" may not look all that bad.
All I know is that NFL general counsel Jeff Pash last week said he would not discuss in public the possibility of the NFL putting its March 11 offer back on the table, which means maybe it wouldn't ... which means "the worst deal in the history of professional sports" could get -- uh-huh -- worse.
OK, so players will gain a victory when U.S. District Court Judge David Doty rules on damages stemming from their TB broadcast case vs. the league, but the league will appeal ... and one guess where it turns: Let's hear it for the Eighth Circuit Court of Appeals. Only this time there won't be an expedited decision, which means it could take as long as a year -- maybe longer -- before a decision is rendered.
In the meantime, games would be lost, checks would be missed, mortgage payments, car payments, rent payments, you name it, would be stretched. I think you get the idea. Timing is everything, and never was that truer than what is going on here.
"We have contingency plans for contingency plans," NFL commissioner Roger Goodell said at last week's owners meetings.
Here's hoping NFL players do, too. The key to successful negotiations is knowing when to cut a deal, and players had their chance to do something March 11 -- or, at least, they had their chance to look at what they were offered, review it, discuss it and extend the deadline.
But they chose not to, largely because they believed in their case and believed they could win in the courts. And they could. They did. Only they didn't win the big one. Not yet. And, frankly, their prospects aren't good in the next round.
But that's why I think the courts drove the two sides together this week. Players know time is not on their side and, now, they're beginning to think the courts may not be, either. On the other hand, owners know they don't cash checks or make stadium payments by keeping their players locked out. Something has to give. And something just did.
If this week's talks are the beginning of a breakthrough, let's give credit where credit is deserved -- and it's to the courts that forced these two to wake up.