So now we have reports that owners and players are in a "deal-making mode." Well, it's about time. I mean, we're in the 91st day of the lockout, and only now the two sides are starting to think about cutting a deal?
Anyway, that something is happening is encouraging, though not surprising. In fact, it makes sense now more than ever, and I'll tell you why: Because of 1) the calendar, 2) the courts and 3) money, and not necessarily in that order. All three conspired to serve as a wake-up call for two sides that once seemed hell-bent on flushing games and the millions -- heck, hundreds of millions -- that go with them but now appear more intent on saving their sport.
Good. I don't know that we gain a settlement soon, but it sure seems as if we'll get a season. And when that happens, people will congratulate commissioner Roger Goodell and NFLPA executive director DeMaurice Smith and tell them how grateful they were that they returned the NFL to us.
But I'm not so sure it was either who jumpstarted these talks. I'll credit the calendar, the courts and money instead, and let me explain:
We've already lost mini-camps, OTAs and quarterback camps, and as June turns into July the prospect of losing part of training camp -- as well as preseason games -- becomes more real. That couldn't be lost on either side, but I'd suggest that it caused more tremors among players than it did owners, and here's why: Because players awoke to a harsh truth and realized that time isn't on their side.
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They could hold out if the courts continued to award them victories, but they haven't. The Eighth Circuit Court of Appeals dealt them a severe setback last month and is liable to rule in favor of the owners again this month -- granting an appeal of an earlier injunction, thereby allowing the lockout to remain in place.
That means the next move is up to the players, and while they could appeal the decision to the Supreme Court there is no guarantee it would take it.
But let's forget about the Supreme Court. How about more immediate concerns like ... well, getting a paycheck? Players are waiting on a decision from U.S. District Court Judge David Doty on damages stemming from a TV broadcast case in March, and while the money could be substantial it almost certainly would be put in escrow while the decision is appealed to -- you got it -- the Eighth Circuit Court of Appeals, where owners have won favorable judgments.
Furthermore, it wouldn't be an expedited appeal, meaning it could take a year or more for the court to make a decision. I think you can see where this is going. Basically, who wants to sit out a year? More specifically, who can afford to? I know who has more resources to withstand a prolonged lockout, and it's not the players.
And who wants to sacrifice a season when the career expectancy for an average player is 3 1/2 years? That the lockout remains in place and that it's liable to remain in place in the future are pressures that should make players more agreeable to a resolution than before.
"I think what this means is that the [former] union will probably have to modify some of its positions and accept that which it was reluctant to accept the first time around," said Stanford Law professor William Gould, a former head of the National Labor Relations Board. "The passage of time is a big problem the players face. With every day that goes by, many of the players in the bargaining unit grow more restive so there is a pressure on the [former] union to find a way to lift the lockout. And if it can't lift it through a court decree, as it appears it can't, then to lift it some other way."
When U.S. District Court Judge Susan Nelson in April ruled in behalf of the players and ordered the lockout lifted in April, she was hailed as a hero. And she was.
While she opened the doors of NFL facilities, she also set into motion a chain of legal events that put us where we are now. Her decision forced the NFL to seek an expedited stay of her decision -- which it gained. More important, the temporary stay led to a permanent stay, and it was that ruling that shifted the landscape.
Until then, players had been confident they could and would win in court. Then the Eighth Circuit Court of Appeals was heard, and, suddenly, the winning streak was over. Not only did players suffer a setback; they were put on alert that, in all likelihood, they would lose the next round when the court ruled on the league's motion for appeal.
Of course, we still have to hear from the Eighth Circuit, but there was little anyone heard in St. Louis on June 3 that led them to believe the court would change its opinion.
Meaning? Meaning the NFL has the leverage that players expected to be theirs. Until the Eighth Circuit Court of Appeals stepped forward, the players' course of action looked smart and carefully wound. They sought relief through the courts, and they were getting it.
Except they didn't get it where it mattered most, with the Eighth Circuit's decision a difference maker. Not only did players lose momentum; they lost a critical battle -- and suddenly looked to be playing a losing hand.
So what now? Well, now they can sit and wait on a decision and hope for the upset, or they can talk about making a deal. When the two sides met in secret to do what the courts could not -- namely, seek a resolution -- it was the week the Eighth Circuit heard oral arguments from both sides in St. Louis, and I suggest that was no coincidence. I suggest that reality kicked in.
"My guess," said professor Geoffrey Rapp of the University of Toledo's School of Law, "is that [players] have a fair amount of faith in their underlying anti-trust claims, but also that they doubt the Eighth Circuit will reinstate the injunction.
"What that means is that the players' attorneys are likely asking their clients exactly how far they are willing to go in this dispute. The attorneys might be able to predict an eventual victory -- and damages -- but they should be forcing their clients to think hard about the consequences of pursuing the litigation strategy. The strategy would likely mean a lost season, and I'm not sure -- if pressed -- the players want that result."
I'm not, either. What I am certain of is that the clandestine meetings represented such a big step forward that after the Eighth Circuit heard from both sides, presiding judge Kermit Bye notified the parties that the court wouldn't mind if the two pursued talks and reached an agreement outside of court. In fact, it would welcome it.
Some of those in attendance thought Bye was suggesting that the court could monitor talks and delay a decision if the two sides made substantial progress, but legal experts disagreed.
"The way these appeals work," said Rapp, "is that judges make their decisions based on 'the record' -- essentially, the brief of the parties and the lower court's decision. The court will look to the case law that affects the dispute and apply that law to the written record and the oral arguments made by both parties.
"The bottom line is that the record in most cases is complete before the oral argument. I think it's therefore unlikely that the judges will delay a decision based on their own observation of progress in the talks. The only possibility would be that the parties, on the cusp of an agreement, might try to notify the court that they expect to resolve the dispute. Nothing I've seen suggests the parties are quite that close to a resolution."
Not until now, that is. I don't know that "close" is the operative term, but I haven't heard anyone talking about a "deal-making mode" before. Still, the courts are doing what they do best, which is to squeeze the NFL and players into substantive talks in advance of a legal decision that one of them won't like.
"It could be," said Gould, "that if the parties did advise the court that they were making considerable progress and were close to an agreement that the court might delay or put off for a very short period of time a ruling that might otherwise come down. But I can't think of an instance where I've seen that happen."
Owners and players talk about how concerned they are about losing fan interest, but this has more to do with losing money -- lots and lots of money -- than it does fans. Owners know what they're up against, and if you don't believe it you weren't listening when a somber Jerry Jones, owner of the Dallas Cowboys, spoke of how he didn't build a $1.2 billion stadium to serve as a monument. He wants football.
So let's go back to the calendar. If you start flushing preseason games, you start flushing the revenue gained from those games. Depending on the number of contests you sacrifice that can be hundreds of millions of dollars. So that's less money for the owners. Less money for the owners means less money for the players, and you don't have to be an Einstein to figure out why that won't fly.
That pressures both sides to save the season ... and I mean the entire 20 games (preseason and regular season). Owners might be willing to concede items that previously were off the table, while players might be willing to swallow some concessions they once weren't willing to make.
The reason: Each has too much to lose.
"Owners likely will be able to enforce their lockout, without an injunction," said Rapp, "but there is a very real chance the players will be able to show that any number of the NFL's restrictive labor practices are anti-trust violations. The owners will be losing revenue in a lost season, just as the players are losing salaries. It would be terribly self-destructive for both sides to let the season fall by the wayside.
"At a minimum, the parties might be able to come together to adopt a stop-gap agreement to cover one more year while they work harder to understand each others' bargaining positions. But my expectation is that both sides will want the money to be made this fall and that they will find a way to come together for a longer-term deal."
It sure looks that way, and hallelujah. As I said, it's about time.