HOLDOUTS, LOCKOUTS, AND PAYOUTS: THE NATIONAL FOOTBALL LEAGUE'S BARGAINING POWER PHENOMENON.
TABLE OF CONTENTS INTRODUCTION I. WHAT MAKES THE PROFESSIONAL SPORTS CONTEXT UNIQUE? A. The NFL 1. The Impact of Violence and Resulting Psychological Pressures II. RELEVANT ALTERNATIVE DISPUTE RESOLUTION PROCEDURES A. Arbitration B. Mediation III. DISPUTE RESOLUTION IN COLLECTIVE BARGAINING AGREEMENTS A. How Mediation Can Remedy the Lockout Problem 1. Participation (and Lack Thereof) Means Control 2. Bringing the Actual Parties Together, Building Relationships 3. Financial Implications and Bargaining Power 4. Media Coverage and Confidentiality IV. HOW A BETTER CBA CAN REMEDY THE HOLDOUT PROBLEM A. Holdouts B. Salary Mediation Provision 1. Neutral Third Party, Neutral Environment 2. Preserving and Building Relationships 3. Saving Time and Money V. CONCLUSION
The past seven years have encapsulated everything that is wrong and everything that is right about dispute resolution in the most popular sports league in the United States--the National Football League ("NFL"). In 2011, NFL team owners threatened to cancel the season after negotiations with the players reached an impasse. (1) In 2012, the NFL locked out their referees after negotiations over salary and pension rules fell through. (2) In 2018, four of the most talented players in the NFL entered the season intending to contract for higher salaries and to sit out until their teams met their contractual demands. (3) The decision to sit out while awaiting a new contract is referred to as a "holdout." (4) While holdouts and lockouts are not new to the NFL, recent issues, both on and off of the field, have emphasized the causes and effects of holdouts and lockouts. (5)
Not surprisingly, holdouts and lockouts often garner national media coverage because of the massive dollar amounts in the players' contracts. (6) Traditionally, these issues were settled through costly, lengthy negotiations and arbitrations rather than mediations. (7) These dispute resolution processes often create tension between the players and the team, cause fans to become disgruntled and disenchanted with the sport, and are plagued with consistently neglected pitfalls. (8) Much gets lost in the hysteria surrounding NFL disputes, (9) and the physical and psychological pressures to which NFL players are exposed are often a side effect of the wreckage. (10) Consequently, team owners, the media, and fans overlook these pressures when it comes time to negotiate. (11) Instead, players are often vilified if they take a stand and demand more favorable collective bargaining agreements ("CBA") or contracts. (12) As a result, players are left with two choices: (1) figure out how to utilize their historically underutilized bargaining power (13) or (2) leave the sport altogether. (14)
In an era when professional basketball and baseball players earn record-breaking salaries, NFL players and employees leave the bargaining table frustrated. (15) Instead of record-breaking salaries, the NFL's inadequate dispute resolution procedures have resulted in record-breaking holdouts and lockouts. (16) Yet, despite repeated failures in both negotiation and arbitration, the NFL clings to its antiquated dispute resolution procedures. (17) With prominent NFL players predicting yet another lockout in 2021 after the current CBA expires, (18) team owners and players should abandon the decades-old practice of negotiating the terms of the CBA and adopt mediation as the default dispute resolution procedure.
This paper examines the causes of the NFL's holdout and lockout problem and suggests mediation as an alternative to the league's current approach to dispute resolution. Because the professional sports context is fraught with unique legal and pragmatic factors that cause negotiation impasses, (19) Part I of this article briefly describes this context and highlights particularly problematic areas of the NFL's bargaining procedures. Part II explains the benefits mediation provides when effectively utilized. Part III discusses the NFL's problematic CBA and posits mediation as a potential remedy. Part IV takes a closer look at NFL players at the bargaining table and how, with the help of a better-negotiated CBA, mediation could also improve these interactions.
I. What Mares the Professional Sports Context Unique?
Several factors contribute to the unique nature of disputes in professional sports. First, while two parties are typically in the spotlight, many more individuals and groups have an interest in the outcomes of professional sports disputes. (20) George Cohen, former director of the U.S. Federal Mediation and Conciliation Service, and experienced mediator, explained:
Among the important differences between sports negotiations and others ... is you have the two parties, the union and team owners, then you have the commissioner representing the league as a third party. And then, behind the scenes, you have a fourth party, the agents who are representing individual players, and they have a voice that is being heard in the process. And then there are the interests of the fans. (21)
Second, the bargaining-power dynamic between the employers (team owners) and the employees (players) is unlike that of any other industry. (22) Additionally, professional athletes often become hometown heroes and cultural icons and can have a substantial impact on the marketability of an entire organization. (23) Because of this status, professional athletes come to the table "command[ing] vastly disproportionate influence on their professions" relative to other industries. (24) Yet, even with immense bargaining power on the athlete's side of the table, team owners often possess even more bargaining power with the added ability to undercut the athlete's bargaining power. (25) Further, many professional athletes have no readily-accessible alternative employment, a worry that lingers in the shadows of a prospective failed negotiation. (26) Owners, on the other hand, are typically none-too-worried about finding a readily-accessible replacement for the athletes. (27)
Finally, avid fanbases and wide media coverage make privacy and confidentiality difficult during the negotiation phase and nearly impossible if negotiations fail. (28) The presence of media coverage allows each party to mudsling, air out grievances to the public, and put outside pressure on the opposing party to resolve the dispute. (29) As one commentator noted during the 2011 CBA negotiations, "[b]oth sides understand the importance of controlling and manipulating the media, as public support hinges on the information disseminated through various media outlets." (30)
A. The NFL
Relative to the other major professional sports, football players are likely considered the most replaceable. (31) Five players, playing both offense and defense, take the court in basketball; six players, playing both offense and defense, take the ice in hockey; nine players, playing both offense and defense, take the field in baseball. (32) Only in football do eleven players play on offense, eleven other players play on defense, and more play on special teams. (33) NFL teams requiring so many players to take the field on any given Sunday has several important impacts. First, outside of a few exceptions, football players are significantly less likely than other professional athletes to single-handedly impact a game on a consistent basis. (34) Second, individual football players are less likely to impact ticket and merchandise sales. (35) Third, with rosters doubling or tripling the size of other sports, football players are significantly less likely to all be of a collective mind--a major issue for strike effectiveness. (36)
1. The Impact of Violence and Resulting Psychological Pressures
Violence pervades the NFL unlike any other professional sport. (37) Studies have shown that tackles can generate more force than serious car accidents. (38) Due to the violent nature of football, the average football player's career is only approximately three years. (39) Consequently, injury risk in football is high. (40) This risk affects the players, teams, owners, media, and fans in different, but interconnected-ways, all of which ultimately shape negotiations in the NFL. (41)
The media's depiction of violence and injuries also influences NFL operations. (42) When the media glorifies a player playing through injuries, other players feel that they must do the same. (43) This pressure is compounded by the perceived replaceability of NFL talent. (44) One NFL player highlighted psychological aspects of violence and injuries in the sport:
[T]hese injuries kind of affect you again mentally. Because someone could come in right after you and take your place. You get hurt and there's always someone else.... [Y]ou don't want to admit you're hurt because someone else is going to take your job. So that definitely plays into the mental aspect of it ... (45)
In sum, players are exposed physically, mentally, and financially. (46) Players have responded to this exposure by leaving the game altogether. (47)
Violence, exacerbated by extraneous factors, impacts negotiations in two significant ways. First, individual players are less likely to maintain solidarity during a strike given the already-small window of opportunity to generate income. (48) Maintaining solidarity is an issue that plagued the National Football League Players Association's ("NFLPA") earliest attempts to gain leverage over owners. (49) Second, the injuries accompanying the violent blows players take may force the owners' hands in future negotiations as the media and society have finally come to recognize the risks that football players face when they step on the field. (50)
II. RELEVANT ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
Despite the ubiquity of disputes in professional sports, leagues and players rarely find themselves in court. (51) Players are cognizant of the high costs and inefficiencies that come with using the court systems. (52) The federal court system has generally been owner and management friendly when resolving disputes in the professional sports context. (53) Therefore, both sides have historically started with negotiation to resolve disputes and have resorted to arbitration only if negotiations break down. (54)
For most of each league's history, the NFL in particular, arbitrations have been the primary, if not sole, method of alternative dispute resolution ("ADR"). (55) Arbitration is less expensive than litigation, provides the assistance of a neutral third party, and is often more efficient than negotiations and litigation. (56) Arbitration also provides "flexibility, privacy, awards which are fair, final and enforceable, .... and broad user satisfaction." (57) However, arbitration still largely resembles adversarial proceedings. (58) Arbitration, like litigation, is often a zero-sum situation. (59) Because one party's gain is necessarily the other party's loss, (60) parties to an arbitration may become antagonistic, build animosity, or may resort to deceptive tactics in an effort to win at all costs. Therefore, if negotiations fail and arbitration is necessary, professional relationships may still be weakened or even destroyed.
Conversely, "[mediation is a voluntary, non-binding 'without prejudice' process that uses a neutral third-party (mediator) to assist the parties in dispute to reach a mutually agreed settlement without having to resort to a court." (61) Since its inception, mediation has gained traction in both the corporate and litigation context. (62) A study in 1997 found that mediation was "by far the preferred ADR process" among Fortune 1000 companies. (63) According to the American Bar Association, "mediations end in agreement 70 to 80 percent of the time." (64) While these statistics may be skewed due to mediation's voluntary nature, mediation's advantages over other processes cannot be ignored.
Mediation provides several benefits that negotiation, arbitration, and litigation simply cannot offer. First, mediation puts control in the parties' hands, rather than the hands of a judge, an arbitrator, or whichever party has the most bargaining power. (65) In mediation, a third-party neutral "plays the role of settlement facilitator" rather than "decision maker." (66) The mediator's presence levels the playing field between parties, facilitating win-win outcomes rather than zero-sum situations. (67) Similarly, mediators help focus and refocus what is at issue. (68) Compared to arbitrators and judges, who focus on the rights of each party, mediators focus on the interests of each party. (69) Focusing on interests rather than rights makes mediation uniquely situated to create win-win scenarios. (70)
The potential for win-win outcomes may allow parties to approach the bargaining table with an agreeable mindset, rather than an antagonistic one. (71) In this way, mediation provides a medium for building and maintaining professional relationships that more adversarial processes like litigation and arbitration may destroy. (72) In the professional sports context, where professional relationships are likely necessary for continued employment, mediation provides the procedures necessary to build, rather than destroy those relationships. (73)
Moreover, mediation gives each party not only the empowerment to air out grievances and goals, (74) but also the privacy to do so out of the spotlight and without extraneous pressure. (75) Fans pressure players to perform on a consistent basis, regardless of mental, physical, or financial vulnerability. (76) Similarly, "[t]he media has a powerful and unique voice to shape the way player ... issues are perceived and addressed." (77) Because fan and media-generated pressure have a significant influence on how teams and owners view players, (78) the confidentiality guaranteed by mediation would potentially help teams and owners begin to see their players as valuable, integral employees, rather than as a means to achieving glory and profits. (79)
Despite its favorability in other contexts, mediation remains relatively absent in the world of professional sports. (80) In fact, out of all four major professional sports leagues' CBAs, none contains a reference to mediation. (81) This reality begs the question: Why are the leagues so reluctant to use mediation? The absence of mediation may be due to tradition and team owners' hesitance to abandon negotiation and the court system when they have enjoyed success in those techniques. (82) The reluctance to change may also be due to the high-conflict nature of sports disputes. (83) Some scholars still blame the numerous extraneous factors unique to the sports world that put pressure on the parties. (84) However, a look back at the creation of the NFLPA--what is essentially a trade union for NFL players (85)--and its repeated failures at reaching favorable CBA's (86) tells a different story. This story shows that the significant and continuing disparity in bargaining power between the team owners and their employees has historically allowed the owners to retain sole control over the league with disproportionately advantageous CBAs. (87)
III. DISPUTE RESOLUTION IN COLLECTIVE BARGAINING AGREEMENTS
A professional sports league's CBA is "the league's governing document that sets forth nearly every aspect of the league's operating procedures." (88) Generally, the league and its player's union, accompanied by each party's lawyers, (89) negotiate the terms of the CBA. (90) Among other issues, the negotiations determine how long the CBA remains in effect, the terms under which a player's contract are terminated, and the amount of money, and in what form, each player can receive. (91) If and when negotiations fail, the league's CBA also mandates which ADR process will be utilized for different disputes. (92) If either party is not satisfied with the CBA negotiations, players may go on strike or owners may "lockout" the players from participating in team activities and, more importantly, from getting paid. (93)
Historically, the NFLPA has been less than effective as a players' union. (94) In fact, regarding key areas of CBAs, NFL players are significantly worse off than their Major League Baseball ("MLB") and National Basketball Association ("NBA") counterparts. (95) Most significantly, unlike NFL players, NBA and MLB players often have guaranteed salaries built into their contracts. (96) A guaranteed salary means that the player receives a certain amount of money regardless of performance, injury, or an early contract termination. (97)
A. How Mediation Can Remedy the Lockout Problem
Through mediation, players and owners would likely be able to reach fair and balanced outcomes without resorting to more adversarial proceedings in court or in arbitration. (98) In addition to the general benefits of mediation discussed above, recent NFL-NFLPA CBA talks put mediation's benefits in the professional sports context on full display. (99) In 2011, as the previous CBA was about to expire, the NFL and NFLPA began CBA talks. (100) This time, however, the NFLPA and the team owners entered into mediation rather than traditional negotiation. (101) After two failed attempts at mediation and a date set for oral arguments in front of the Eighth Circuit Court of Appeals, (102) each party was able to reach a mutually beneficial agreement during a third mediation attempt. (103) Several aspects of that mediation should be kept in mind when the NFL and NFLPA move forward with the next round of CBA discussions.
1. Participation (and Lack Thereof) Means Control
First, participation in mediation is voluntary, and parties to the mediation can walk away at any time. (104) Even with numerous parties involved, the only truly necessary participation must come from the NFLPA and team owners. (105) Each party sends several representatives to the discussions. (106) Interestingly, the most progress made towards an agreement in the 2011 CBA mediation came when each party's lawyers were absent from the mediation. (107) In fact, when the lawyers returned to the discussion, previously peaceful meetings became highly contentious. (108)
While it may have been purely coincidental timing, the lawyers' participation in the mediation is important in two ways. First, legal presence and participation likely make the discussions look more like negotiations and less like mediation; when lawyers are absent, the process becomes less adversarial (109) and more about finding common interests and common ground--a key aspect of mediation. (110) Second, with neither sides' lawyer present, the parties are able to fully control the discussions--another key aspect of mediation. (111)
2. Bringing the Actual Parties Together, Building Relationships
Equally as important as the parties' participation is their ability to engage in direct dialogue on the issues rather than using an intermediary. (112) While caucusing, or "shuttle diplomacy (113)," may be effective in certain situations, it can hinder mediations when parties have not yet discussed all issues on the table. (114) The NFLPA President discussed his frustration with the lack of face-to-face dialogue in the first mediation attempts, saying that players mediated "for 16 hours ... [but] met face-to-face [with team owners] a total of 30 minutes." (115) Placing the owners and players in the same room helped avoid the disconnect that plagued the first two mediation attempts as a result of shuttle diplomacy. (116)
Further, being present at the discussions and actively engaging in face-to-face dialogue allows both the players and team owners to "save face" and restore fan confidence. (117) When players come to the mediation table and meet only the owners' lawyers, it exacerbates the perception that owners are not concerned with finding a solution that equally benefits the players. (118) When mediation is able to bring both parties face-to-face, the parties are better positioned to find common interests and ground, and the fans see the owners, league, players, and dispute in a more positive and understanding light. (119)
Owner participation arguably presents the greatest obstacle to using mediation in the professional sports context because owners have historically had substantially greater bargaining power. (120) Therefore, team owners have fewer incentives to actively participate in discussions, even ones as important as CBA negotiations. (121) However, once owners realize the benefits of mediation, such benefits may negate the bargaining power phenomenon and bring, rather than force, them to the table. (122) Regarding face-to-face dialogue, the non-adversarial nature of mediation allows players and team owners to build, restore, or maintain personal and professional relationships. (123) Therefore, it would benefit team owners to not only participate, but also engage in face-to-face dialogue during CBA discussions to show the players and fans that they are serious about the players' concerns.
3. Financial Implications and Bargaining Power
During the 2011 CBA negotiations, how to split the league's $9.3 billion annual revenue was unsurprisingly each party's highest priority. (124) Players wanted more guaranteed money and more freedom in their contracts, and team owners wanted more money in their pockets and more ways to easily get out of bad contracts. (125) With these seemingly irreconcilable positions, a lockout seemed inevitable, and the NFL stood to lose roughly $200 million in revenue for each week of the preseason cancelled. (126) Because both parties stood to lose portions of that revenue, a quick and cost-effective resolution was in both parties' best interests. (127)
Mediation is more cost-effective and efficient than negotiation, arbitration, and litigation. (128) And recently, expensive stadium renovations and team relocations have made the owners more conscious of lost revenue. (129) If the financial implications of a lockout continue to affect team owners, and if the bargaining power between players and owners continues to equalize, the next round of CBA talks could be especially ripe for mediation. (130) Therefore, 201 l's mutual victory should be a preview of future CBA discussions.
4. Media Coverage and Confidentiality
The failed second mediation attempt and successful third mediation attempt present a striking display of how media coverage and confidentiality can affect the process. (131) In the second mediation attempt, judges placed a gag order on the parties to help protect the process from media pressure. (132) Even then, parties on both sides were quick to divulge the inner workings of the mediation. (133) The antagonization that followed prompted both parties to agree to keep quiet about the third attempt at mediation discussions to mitigate the damage from public censure. (134)
Confidentiality is especially important in the professional sports context because of the ever-present media. (135) The psychological pressure that media exerts on teams and players necessitates counter-pressures. (136) For good-faith bargaining to occur, parties must be able to operate under the assumption that their words will not be misconstrued or used against them. (137) Mediation's insistence on confidentiality, when honored by both parties, not only keeps finger-pointing at bay, but also keeps each parties' bargaining positions private. (138) In the wake of the NFL's recent publicity troubles, both the players and owners would do well to use mediation to shield themselves from the threat of public censure that may have the ability to influence these discussions.
IV. HOW A BETTER CBA CAN REMEDY THE HOLDOUT PROBLEM
The longest work stoppage in NFL history--a 130-day lockout-ended with a successful mediation. (139) The agreement contained new provisions reflecting player health and safety, increases in player benefits, greater guaranteed salaries, and a larger split of the NFL's annual revenue. (140) Yet, even with significant victories in those areas, the owners came out for the better as well. (141) Rather than splitting the pie, as was tradition, the players and owners enlarged and shared the pie. (142)
The remaining issue in the upcoming 2021 CBA talks will be how the NFL handles salary disputes. In the NFL, there has never been an established system in place to deal with salary disputes between players and their teams. (143) Like CBA talks, the default process (and only process) is negotiation. (144) While the CBA requires arbitration in many other contract-related disputes, the only provision related to salary disputes is the antiquated and widely-disliked "franchise tag" system. (145) Under the franchise tag system, a team may designate, or "tag," one of its players each year. (146) For the following year, the tagged player's salary is capped, and he can only negotiate or sign a contract with his current team. (147) Players dislike the franchise tag because it substantially diminishes the athlete's bargaining power and does not guarantee long-term job security. (148) Therefore, when contract negotiations reach an impasse, or a team uses its franchise tag, players may threaten to "holdout." (149)
During a holdout, players attempt to leverage their talent by refusing to participate in team activities until they reach a satisfactory deal. (150) Holdouts are problematic for several reasons: the decision to holdout can create a divisive locker room, fans become disgruntled, and the team often suffers on the field. (151) But for the players, holdouts can result in incredibly lucrative contracts that guarantee job safety in a position where a player can be "fired" at any moment. (152) In 2018, four players put on display some of the best and worst possible outcomes of NFL holdouts:
Le'Veon Bell 26 Years Old. Running Back: In July 2018, Bell announced his intention to holdout until his team, the Pittsburgh Steelers, offered to do essentially anything other than what they were planning to do: franchise tag Bell. (153) The tag, Bell's second in many years, capped his salary at $14,500,000 for the year (or $853,000 for each game played). (154) Bell sat out the entire 2018-19 season. (155) Aaron Donald, 27 Years Old, Defensive Tackle: Donald was on the losing end of a holdout in 2017 after the Rams owner called Donald's bluff, and he reported to the team on the eve of the regular season. (156) Donald went on to win NFL Defensive Player of the Year, which provided substantial leverage heading into the final year of his then-current contract. (157) In 2018, Donald again decided to holdout and was rewarded with what was, at the time, a record deal for $135,000,000 over six years. (158) Khalil Mack, 27 Years Old, Outside Linebacker: One day after Aaron Donald signed his record-breaking deal, Khalil Mack, linebacker for the Chicago Bears, ended his holdout after signing a six-year deal worth $141,000,000, becoming the highest paid NFL defensive player. (159) Mack leveraged his talent relative to other defensive players by likely using Aaron Donald's recent deal as a bargaining point. (160) Like Donald, Mack was a former Defensive Player of the Year, (161) had his best years ahead, and played in a position that NFL teams were struggling to fill. (162) Earl Thomas III, 29 Years Old, Free Safety: Earl Thomas, like Donald and Mack, was entering the final year of his contract and sought an extension. (163) Unlike Donald and Mack, Thomas was more concerned with a long-term deal than with money because one injury could cause him to potentially lose out on a big payout. (164) Because his team was openly hesitant to sign an aging player to a long-term deal, Thomas felt disrespected by the team on which he had played his entire career. (165) Ultimately, Thomas's fears came to fruition when he, without any guaranteed job security, suffered a season-ending injury just a few weeks into the season. (166) In what might have been his last game ever, Thomas was pictured being carted off the field, making an obscene gesture toward his team's sideline. (167)
B. Salary Mediation Provision
Because of holdouts like Le'veon Bell and Earl Thomas (unsuccessful holdouts), players should feel strongly about including a salary mediation provision in the next CBA. However, because of holdouts like Aaron Donald and Khalil Mack (successful holdouts), it may be difficult to get players on the same page. Currently, the NFL's penalties for holding out pale in comparison to the mega deals potentially on the table. (168) To avoid disastrous holdouts that affect not only the players and owners, but also the team and fans, the NFL and NFLPA could include a salary mediation provision. (169) The benefits of mediation discussed above offer many of the same benefits in the salary dispute context.
1. Neutral Third Party, Neutral Environment
The presence of a mediator provides several unique advantages. First, mediators are neutral third parties, creating a neutral environment, seeking to find the best possible solution for both parties. (170) Many other dispute resolution processes are somewhat adversarial in nature, possibly creating hostile environments for the parties. (171) Because disputes in the professional sports context implicate more interested parties than just those on either side of the table, a neutral third party may be able to keep everyone's interests in mind and, more importantly, in check. (172)
Second, because mediators must remain neutral, they are better able to identify key issues in more intense negotiations or lawsuits. (173) In the salary dispute context, it is often not just the salary that is involved. For example, a key issue in the 2011 CBA mediation was the portion of a salary that represented guaranteed money in case of injury. (174) Moreover, contingency clauses, in which players can earn a higher salary if they reach certain milestones, are also linked to, but separate from, a player's salary. (175) Because the amount at stake in these disputes is so large, these smaller, but still important issues may get overlooked, and an arbitrator, lawyer, or judge may not be trained or even authorized to address them. (176)
2. Preserving and Building Relationships
Mediation's confidentiality does much more than safeguard against public censure. Even before the days of social media, scholars were aware of confidentiality's ability to preserve and enhance working relationships in professional sports' salary-dispute context. (177) Confidentiality promotes open communication. (178) Open communication enhances the quality of decisionmaking by the parties, which enhances the results. (179) When a player wants to remain with a team and the team wants to keep that player, as was the case with Earl Thomas and the Seahawks, creating the best possible results for both parties is of the utmost priority.
Further, the success of the NFL and its teams depends on the public's perception of the league and its culture. (180) Confidentiality during contentious disputes allows players, teams, and owners to protect their reputation not only in each other's eyes, but the public's eyes as well. It is no secret that trust between owners and players has steadily eroded in the past two decades. (181) Therefore, both the league and players would benefit from avoiding "long and drawn out public negotiations with unreasonable positioning by owners, players, and agents." (182) For example, because the Seahawks publicly tarnished their relationship with Earl Thomas over a bitter, failed negotiation, (183) fans and other players may be hesitant to support a team that did not reciprocate its player's loyalty. Had those parties mediated and adhered to mediation's confidentiality policy, both Earl Thomas's and the Seahawk's future could have looked drastically different.
3. Saving Time and Money
Not only can mediation save court costs, lawyers' fees, and lengthy disputes, it can also protect players against fines, lost salary, and time off the field. (184) Mediation provides flexibility for time-sensitive issues that arguably no other alternative dispute resolution procedure can match. (185) Court-appointed mediators, like the one in the NFL's 2011 CBA mediation, are often prepared to mediate whenever necessary and for however long is necessary to resolve disputes and prevent issue escalation. (186) For someone like Bell, saving time with mediation could have made the difference in not only a new contract, but also potentially $14 million. (187) Also, because the average length of a professional football player's career is just 3 years, (188) time spent under contract and on the field is precious. Therefore, owners considering a franchise tag and players who previously turned to lengthy holdouts would both benefit from first attempting to resolve disputes in mediation before more drastic measures are taken.
On the other hand, even a "failed" mediation can result in a significant amount of time and money saved. (189) For example, had a mediator understood at the outset that the Steelers were unwavering in their decision to franchise tag Bell, Bell could have cut ties earlier and found a new team. While the mediation in that circumstance would not have been a "success," it still would have saved each party a substantial amount of time and money.
Mediation saved the NFL from a potentially disastrous lockout in 2011. With the next round of CBA talks coming in 2021, it is imperative for the NFL to consider mediation in lieu of its traditional negotiation-first approach. Fans have watched as the NFL has fumbled with tough issues such as domestic violence, player safety, performance enhancing drugs, and contract disputes. The media is ever-present, exerting pressure on teams and players to speak, act, and play a certain way. Players have become increasingly outspoken about their grievances, using social media to air out what was traditionally kept private. Owners have caused players to lose trust in their organizations and the league as a whole.
Mediation provides the unique opportunity for the parties to come together, engage in face-to-face communication, build and repair relationships, and, most importantly, level the playing field. Once the bargaining-power imbalance is sufficiently corrected, the NFLPA should be able to negotiate a more favorable CBA. Players would then be able to utilize the more favorable CBA in their contract negotiations. With more favorable contracts, players could relieve some of the psychological and physical pressures that create tension with owners, fans, and the media. While mediation is not a panacea, it is certainly a step in the right direction for the NFL in a time that a step in the right direction is desperately needed.
(1) Michael Finkelstein, Mediation, Compromises Save 2011-2012 NFL Season, MEDIATE, com (Nov. 2011), https://www.mediate.com/articles/FinkelsteinMl.cfm.
(2) David Vinjamuri, The Referee Lockout is Hurting the NFL Brand, FORBES (Sept. 25, 2012, 4:47 PM), https://www.forbes.com/sites/davidvinjamuri/2012/09/25/ the-referee-lockout-ishurting-the-nfl-brand/#78dab53a5885.
(3) Andrew Brandt, Examining the Cases of the Four NFL Players Who Still Haven't Reported, SPORTS ILLUSTRATED (Aug. 21, 2018), https://www.si.com/nfl/2018/08/21/ nflcontract-holdouts-leveon-bell-aaron-donald-khalil-mack-earl-thomas.
(4) See infra text accompanying notes 149-52.
(5) See Matthew Levine, Comment, Despite His Antics, T.O. Has a Valid Point: Why NFL Players Deserve a Bigger Piece of the Pie, 13 VILL. SPORTS & ENT. L.J. 425, 434-35, 43840 (2006).
(6) See, e.g., Le'Veon Bell's Drama-Filled Contract Catastrophe, ESPN (Sept. 14, 2018), http://www.espn.com/video/clip?id=24676139.
(7) Timothy J. Bucher, Comment, Inside the Huddle: Analyzing the Mediation Efforts in the NFL's Brady Settlement and its Effectiveness for Future Professional Sports Disputes, 22 MARQ. SPORTS L. REV. 211, 211-12 (2011).
(8) See Mason Storm Byrd, Concussions and Contracts: Can Concern Over Long-Term Player Health Pave the Way to Greater Guarantees in the NFL Contracts?, 59 Ariz. L. REV. 511, 528-29 (2017).
(9) See Levine, supra note 5, at 438-39.
(10) See Sarah A. McGraw et al., Life on an Emotional Roller Coaster: NFL Players and Their Family Members' Perspectives on Player Mental Health, 12 J. CLINICAL SPORT PSYCHOL. 404,404-05 (2018).
(11) See id at 405,412-13,420.
(12) Levine, supra note 5, at 425-26. See also Basil M. Loeb, Comment, Deterring Player Holdouts: Who Should Do It, How to Do It, and Why It Has to be Done, 11 MARQ. SPORTS L. REV. 275, 277-78, 280 (2001).
(13) Cf. Levine, supra note 5, at 439-40 ("Yet NFL players, due to a history of poor unionization and ineffective bargaining strategies, never dealt at arm's length with the owners.").
(14) Byrd, supra note 8, at 533-36.
(15) Id. at 519.
(16) Brian McIntyre, NFL Lockout and How We Got Here: Timeline to a New CBA, SB Nation (July 25, 2011, 2:01 PM), https://www.sbnation.com/nfl/2011/7/25/2292223/nfllockout-labor-cba.
(17) Bucher, supra note 7, at 211.
(18) Khadrice Rollins, Richard Sherman Says Another Lockout is 'Going to Happen' in 2021 After the CBA Expires, SPORTS ILLUSTRATED (Sept. 6, 2018), https://www .si.com/nfl/2018/09/06/49ers-richard-shennan-potential-lockout-2021-new-cba.
(19) See Levine, supra note 5, at 438-40.
(20) See Steven Greenhouse, Mediator in N.B.A. Talks Has Strong Sports Pedigree, N.Y. TIMES (Oct. 19, 2011), https://www.nytimes.com/2011/10/20/sports/basketball/ georgecohen-nba-mediator-has-experience-for-role.html?mtrref=www.google.com&gwh=BA2E06794901CF91 EC405875609B3EFC&g wt=pay.
(21) Id. (internal quotations omitted).
(22) See Brown v. Pro Football, Inc., 518 U.S. 231, 255-57 (1996) (Stevens, J., dissenting).
(23) ROBERT C. BERRY ET AL., LABOR RELATIONS IN PROFESSIONAL SPORTS 10(1986).
(24) See PAUL D. STAUDOHAR, THE SPORTS INDUSTRY AND COLLECTIVE BARGAINING 7 (2d ed. 1986).
(25) See Levine, supra note 5, at 438-41.
(26) See Gabriel Feldman, Antitrust Versus Labor Law in Professional Sports: Balancing the Scales After Brady v. NFL and Anthony v. NBA, 45 U.C. DAVIS L. REV. 1221, 1236-37 (2012).
(27) See id. at 1237-38; Levine, supra note 5, at 440.
(28) See Bucher, supra note 7, at 224-25.
(29) See id.; Jeffrey F. Levine & Bram A. Maravent, Fumbling Away the Season: Will the Expiration of the NFL-NFLPA CBA Result in the Loss of the 2011 Season?, 20 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1419, 1450(2010).
(31) Christopher R. Deubertet A., Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations, 7 HARV. J. SPORTS & ENT. L. 1, 148. 302 (2016).
(32) See Brad R. Humphreys & Candon Johnson, The Effect of Superstar Players on Game Attendance: Evidence from the NBA, 1 W. VA. U. ECON. Rev. 1, 3 (2017).
(33) Id. at 3.
(34) Jeffrey D. Schneider, Unsportsmanlike Conduct: The Lack of Free Agency in the NFL, 64 S. CAL. L. REV. 797,814(1991).
(35) Id. at 814-15.
(36) Mike Freeman, Players Need to Do More than Think About a Strike; They Need a Plan to Win One, BLEACHER REPORT (July 21, 2017), https://bleacherreport.com/articles/ 2722443-players-need-to-do-more-than-think-about-astrike-they-need-a-plan-to-win-one.
(37) See Levine, supra note 5, at 457-58.
(38) Shaoni Bhattacharya, American Footballers Endure 'Car Crash' Blows, NEW SCIENTIST (Jan. 6, 2004), https://www.newscientist.com/article/dn4534-american-footballers-endurecar-crash-blows/.
(39) See Levine, supra note 5, at 458.
(41) Cf. Deubert et al., supra note 31, at 23 (stating that the issues and parties surrounding NFL player health are "numerous, complex, and interconnected").
(42) See id. at 299-300.
(43) Id. at 304.
(44) McGraw et al., supra note 10, at 404-05.
(46) Byrd, supra note 8, at 532-33.
(47) See id. at 533-36.
(48) See DAVE ZIRIN, WHAT'S MY NAME, FOOL? SPORTS AND RESISTANCE IN THE UNITED STATES 105-06 (2005).
(49) See Freeman, supra note 36.
(50) See, e.g., Byrd, supra note 8, at 532.
(51) See Rodney A. Max & Joshua J. Campbell, Formal Mediation in Professional Sports, 1 AM. J. MEDIATION 17,21-25 (2007).
(52) Cf. Mark Grabowski, Both Sides Win: Why Using Mediation Would Improve Pro Sports, 5 HARV. J. SPORTS & ENT. L. 189, 194-95 (2014) ("Both mediation and arbitration are arguably preferable to the much more public alternatives: protracted negotiations, which often result in work stoppages and fan dissatisfaction, or litigation, which can be an expensive and long process.").
(53) See e.g., Marcos A. Abreu & Brandon D. Spradley, The 2011 National Football League Labor Dispute, THE SPORT JOURNAL (Aug. 23, 2016), https://thesportjournal.org/article/the2011-national-football-league-labor-dispute/.
(54) See Max & Campbell, supra note 51, at 20-24.
(55) See ADAM EPSTEIN, SPORTS LAW 263-64 (2003).
(56) Arbitration, ABA (Oct. 11, 2018), https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/arbitration/.
(57) See Edna Sussman & John Wilkinson, ABA Arbitration Committee, Benefits of Arbitration for Commercial Disputes, ABA (March 2012), http://www.americanbar.org/content/dam/aba/publications/dispute_resolution_magazine/March 2012 Sussman Wilkinson March_5.authcheckdam.pdf.
(58) See Charles Hunt, Mediate, Arbitrate, or Litigate?, 5 GRAZIADIO BUS. REV. 1, 3 (2002).
(59) See id.
(61) See IAN S. BLACKSHAW, SPORT, MEDIATION AND ARBITRATION 19 (2009).
(62) Cf. Thomas J. Stipanowich, Beyond Arbitration: Innovation and Evolution in the United States Construction Industry, 31 WAKE FOREST L. REV. 65, 67-68 (1996) (highlighting that mediation is doing away with litigation worldwide and especially in the corporate construction context).
(63) See Thomas Stipanowich & J. Ryan Lamare, Living with ADR: Evolving Perceptions and Use of Mediation, Arbitration, and Conflict Management in Fortune 1000 Corporations, 19 HARV. NEGOT. L. REV. 1, 16 (2014).
(64) Grabowski, supra note 52, at 196 (internal quotations omitted).
(65) EDWARD BRUNET ET AL., ALTERNATIVE DISPUTE RESOLUTION: THE ADVOCATE'S PERSPECTIVE 218 (5th ed. 2016).
(66) See EPSTEIN, supra note 55, at 257.
(67) Grabowski, supra note 52, at 195. Cf. BRUNET ET AL., supra note 65, at 241-42 ("While a formal agreement or settlement that resolves the dispute is one possible outcome of mediation, it is not the only one [:] (1) clarify goals, and (2) a better understanding of each party's perspective.").
(68) Id. at 241.
(69) See Max & Campbell, supra note 51, at 20.
(71) See id. at 19-20.
(72) See BRUNET ET AL., supra note 65, at 241-42.
(73) See Bucher, supra note 7, at 231.
(74) See id. at 231 (stating that talking face to face about player concerns helped result in a successful mediation).
(75) See id. at 217-18, 230-31.
(76) See Deubert et al., supra note 31, at 14, 34, 64.
(77) Id. at 305.
(78) See id.
(79) Cf. Bucher, supra note 7, at 230-31 (showing that the successful third mediation was a product of the players getting to talk direct to the owners and the third meeting's secrecy).
(80) EPSTEIN, supra note 8, at 262 (noting that "[m]ediation is not often used by the major professional sport leagues in the United States").
(81) See Max & Campbell, supra note 51, at 21-25.
(82) See Brown v. Pro Football, 518 U.S. at 231-32; Bucher, supra note 7, at 214-17; McIntyre, supra note 16.
(83) See BLACKSHAW, supra note 61, at 133 (citing KENNETH KRESSEL, THE HANDBOOK OF CONFLICT RESOLUTION: THEORY AND PRACTICE (Morton Deutsch & Peter T. Coleman eds. 2000)).
(84) See Levine, supra note 5, at 445, 447-48 n. 183.
(85) See Kevin W. Wells, Labor Relations in the National Football League: A Historical and Legal Perspective, 18 SPORTS L.J. 93, 94-96 (2011).
(86) See id. at 95-101.
(87) See Byrd, supra note 8, at 514; id. at 94-102.
(88) See Bucher, supra note 7, at 211-12.
(89) See Wells, supra note 85, at 112.
(90) See Bucher, supra note 7, at 96.
(91) See Deubert, supra note 31, at 38.
(92) See NFL Collective Bargaining Agreement, art. 9 [section] 4, art. 26 [section] 4, art. 41 [section] 3, art. 53 [section] 4 (Aug. 4, 2011).
(93) See Pro Sports Lockouts and Strikes Fast Facts, CNN (June 2, 2018, 10:23 AM), https://www.cnn.com/2013/09/03/us/pro-sports4ockouts-and-strikes-fast-facts/index.html.
(94) See Byrd, supra note 8, at 514.
(95) Id. at 513-14.
(96) Id. at 513. See also NFL Collective Bargaining Agreement, supra note 92, at art. 4 [section] 5(d) ("[A]ny Player Contract may be terminated if, in the Club's opinion, the player being terminated is anticipated to make less of a contribution to the Club's ability to compete on the playing field than another player or players whom the Club intends to sign or attempt to sign, or another player or players who is or are already on the roster of such Club, and for whom the Club needs Room.").
(97) Byrd, supra note 8, at 513.
(98) See Roger J. Peters & Deborah Bovarnick Mastin, To Mediate or Not to Mediate: That Is the Question, 62 DISP. RESOL. J. 15, 16 (May/July 2007).
(99) See NFL, NFLPA Agree to Enter Mediation, ESPN (Feb. 18, 2011), http://sports.espn.go.com/nfl/news/story7icN6132690.
(102) Bucher, supra note 7, at 226-27.
(103) Id. at 230.
(104) Id. at 212.
(105) See Wells, supra note 85, at 103.
(106) See Bucher, supra note 7, at 221-22.
(107) Id. at 231.
(109) Cf. BRUNET ET AL., supra note 65, at 219 ("Law occupies an important place in mediation but a necessarily subservient or secondary one.").
(111) See id. at 218.
(112) Bucher, supra note 7, at 232-33.
(113) Shuttle diplomacy refers to the process of putting "parties in separate caucus rooms with a mediator acting as an intermediary." Id. at 221.
(114) Id. at 220-22.
(115) NFL Capsules: Lead Negotiator Says NFL Proposed 10-Year CBA, BROWNSVILLE HERALD (Mar. 14, 2011), http://www.brownsvilleherald.com/sports/nfl-123936-proposedcapsules.html.
(116) Bucher, supra note 7, at 232-33.
(117) Grabowski, supra note 52, at 194.
(118) See Bucher, supra note 7, at 222.
(119) Cf. Grabowski, supra note 52, at 202-05 (mediation provides an avenue to establish ground rules and avoid the public relations ploys, press conference duels, and personal attacks that turn fans away).
(120) See Byrd, supra note 8, at 53 1.
(121) See id. at 531-32; Peter B. Kupelian & Brian R. Salliotte, The Use of Mediation for Resolving Salary Disputes in Sports, 2 THOMAS M. COOLEY J. PRAC. & CLINICAL L. 383, 385 (1999).
(122) See, e.g., Kupelian & Salliotte, supra note 120, at 385-89.
(123) See Karin S. Hobbs, Attention Attorneys! How to Achieve the Best Results in Mediation, 54 DISP. RESOL. J. 43, 47 (1999).
(124) Mark Maske, NFL Lockout Talks Break for the Weekend After Negotiators Repair Rift, WASH. POST (July 1, 2011), https://www.washingtonpost.com/sports/redskins/ nfl-talksbreak-for-the-weekend-after-negotiators-repair-rift/2011/07/01/AGbDGitH_story.html?utm term=.f07d6ba08a5b.
(125) See generally Paul D. Staudohar, The Football Lockout of 2011, MONTHLY LAB. REV. 29 (Aug. 2012).
(126) Maske, supra note 124.
(127) Bucher, supra note 7, at 232.
(128) Hobbs, supra note 123, at 43.
(129) Cf. Darren Rovell, Packers' Books Show that NFL Distributed More than $8 Billion, ESPN (July 16, 2018), http://www.espn.eom/nfl/story/_/id/24114332/ green-bay-packersbooks-show-team-got-255m-revenue-sharing (even as revenues steadily grow, NFL teams have realized smaller yearly profits and looked to cut costs).
(130) Cf. Bucher, supra note 7, at 234 ("Mediation is an emerging and effective dispute resolution mechanism that all pro sports leagues and players associations would be well served to utilize.").
(131) Id. at 229-32.
(132) Id at 229.
(133) Id. at 229-30.
(134) Id. at 230-31.
(135) See Grabowski, supra note 52, at 202.
(136) Barry R. Furrow, The Problem of the Sports Doctor: Sen>ing Two (or is it Three or Four?) Masters, 50 ST. LOUIS U. L. J. 165, 166 (2005).
(137) JACQUELINE M. NOLAN-HANEY, ALTERNATIVE DISPUTE RESOLUTION IN A NUTSHELL 117 (3d ed. 2008).
(138) See Grabowski, supra note 52, at 200-02.
(139) See McIntyre, supra note 16.
(140) NFL Clubs Approve Comprehensive Agreement, NFL, (July 26, 2012, 8:43 PM), http://www.nfl.com/news/story/09000d5d820e6311/article/nfl-clubs-approvecomprehensive-agreement.
(141) See Richard Rothschild, Players Vs. Owners: Who Came Out on Top in Major Labor Disputes?, SPORTS ILLUSTRATED (July 26, 2011), https://www.si.com/moresports/2011 /07/26/labor-scorecard.
(142) Id. ("Going by revenues, the owners came out ahead.... But it's difficult to view the players as losers.").
(143) See NFL Collective Bargaining Agreement, supra note 92, at art. 13 [section] 4-[section] 8.
(144) See id at art. 13 [section]8.
(145) See Jeanna Thomas, The 2018 NFL Franchise Tag Explained in a 2-Minute Read, SB NATION, https://www.sbnation.com/2018/2/19/17017190/nfl-franchise-tag-explained-freeagency-2018, (last updated Mar. 6, 2018, 4:19 PM).
(149) See id.
(150) See Tim Dahlberg, NFL Holdouts a Rite of Summer for Many Teams, NFL (Nov. 18, 2010, 7:16 PM), http://www.nfl.com/news/story/09000d5d80994el 9/article/nfl-holdouts-arite-of-summer-for-many-teams.
(151) See id.
(152) See Associated Press, Aaron Donald Ends Holdout With Record Deal from LA Rams, USA TODAY (Aug. 31, 2018, 8:16 PM), https://www.usatoday.com/story/sports/nfl/2018/08/31 /aaron-donald-ends-holdout-withrecord-deal-from-la-rams/37674225/; id.
(153) NFL Notebook: Bell Off Steelers' Depth Chart, REUTERS, (Sept. 12, 2018 7:18 PM), https://www.reuters.com/article/us-football-nfl-notebook/nfl-notebook-bell-off-steelersdepth-chart-idUSKCN 1LTOOO.
(155) Bryan Deardo, Le'Veon Bell. Steelers May Still Have a Happy Ending, 24/7 SPORTS (Jan. 22, 2019, 11:15 AM), https://247sports.com/nfl/pittsburgh-steelers/Article/ LeVeon-BellSteelers-Art-Rooney-II-options-128165881/
(156) Associated Press, supra note 152.
(159) Tyler Lauletta, Khalil Mack Signs Game-Changing $141 Million Contract Hours After Being Traded to the Chicago Bears, BUSINESS INSIDER (Sept. 2, 2018, 4:27 AM), https://www.businessinsider.com/khal il-mack-chicago-bears-contract-2018-9.
(160) Marcus Mosher, What Does Rams DT Aaron Donald's Contract Mean for Khalil Mack?, RAIDERSWIRE (Aug. 31, 2018, 12:15 PM), https://raiderswire.usatoday.com/2018/08/31 /what-does-rams-dt-aaron-donalds-contractmean-for-khalil-mack/.
(161) Chris Wesseling, Khalil Mack Wins Defensive Player of the Year, NFL, (Feb. 5, 2017 at 12:50, PM), http://www.nfl.com/news/story/0ap3000000782768/article/khalil-mack-winsnfl-defensive-player-of-the-year.
(162) See Christian D'Andrea, The I Position Each NFL Team Should be Worried about Heading into the 2018 Season, SB NATION (May 14, 2018, 9:00 AM), https://www.sbnation.com/2018/5/14/17328630/nfl-teams-biggest-weakness-draft-2018nfl-free-agency.
(163) Michael Middlehurst-Schwartz, Earl Thomas Ends Seahawks Holdout but Says 'Disrespect' Won't be Forgotten, USA TODAY (Sept. 5, 2018, 3:46 PM), https://www.usatoday.com/story/sports/nfl/seahawks/2018/09/05/earl-thomas-seattleseahawks-holdout-contract/1202577002/.
(164) Michael Middlehurst-Schwartz, Earl Thomas Gives Middle Finger Toward Seahawks Sideline After Leg Injury, USA TODAY (Sept. 30, 2018, 11:24 PM), https://www.usatoday.com/story/sports/nfl/seahawks/2018/09/30/ earl-thomas-injurymiddle-finger-seattle-seahawks/1482960002/.
(165) Middlehurst-Schwartz, supra note 163 (internal quotations omitted) (noting that Thomas posted on social media that the "disrespect has been well noted and will not be forgotten.").
(166) Middlehurst-Schwartz, supra note 164.
(168) NFL Collective Bargaining Agreement, supra note 92, at art. 42, [section] l(a)(vi) (imposing a fine of $30,000 each day of training camp a player under contract misses).
(169) See Labor Management Relations (Taft-Hartley) Act [section] 301, 29 U.S.C. [section] 171 (2012) (permitting governmental institutions, such as the Federal Mediation and Conciliation Service, to mediate salary disputes when a collective bargaining agreement exists).
(170) See BRUNET ET AL., supra note 65, at 250-56.
(171) See Max & Campbell, supra note 51, at 19-20.
(172) Kupelian & Salliotte, supra note 121, at 385.
(173) See id. at 396.
(174) See NFL Collective Bargaining Agreement, supra note 92, at art. 26, [section] 9.
(175) See Byrd, supra note 8, at 523-27.
(176) Cf. Hunt, supra note 58, at 3 ("[H]ow do you select or find an arbitrator who will be fair? ... What is really needed is someone who is an expert in that industry.").
(177) See NOLAN-HANEY, supra note 137, at 117.
(179) Robert A. Baruch Bush, "What Do We Need a Mediator For?": Mediation's "Value-Added" For Negotiators, 12 OHIO ST. J. DISP. RESOL. I, 36 (1996).
(180) See Kupelian & Salliotte, supra note 121, at 390-91.
(181) Id. at 389.
(182) Id. at 390-91.
(183) See Middlehurst-Schwartz. supra note 163; Middlehurst-Schwartz, supra note 163.
(184) See Kupelian & Salliotte, supra note 121, at 385-88.
(185) See Stephen B. Goldberg, The Mediation of Grievances Under a Collective Bargaining Contract: An Alternative to Arbitration, 77 N.W.U.L. REV. 270, 282 (1982).
(186) Kupelian & Salliotte, supra note 121, at 392.
(187) See NFL Notebook: Bell Off Steelers' Depth Chart, supra note 153.
(188) John Keim, With Average NFL Career 3.3 years, Players Motivated to Complete MBA Program, ESPN (July 28, 2016), http://www.espn.com/blog/nflnation/post/_/id/207780/ current-and-former-nfl-players-inthe-drivers-seat-after-completing-mba-program.
(189) See Kupelian & Salliotte, supra note 121, at 396.
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