U.S. District Judge Susan Nelson on Monday ordered the NFL and the NFL Players Association to court-supervised mediation beginning Thursday in Minneapolis, Minn. Nelson, who is presiding over Brady et al v. National Football League et al, the players' antitrust suit against the NFL, has appointed Chief Magistrate Judge Arthur Boylan to serve as mediator, and ordered formal mediation to begin in Boylan's courtroom Thursday morning.
Nelson has ordered that both sides file briefs by Monday at 5 p.m. CT. She will meet in person with the Brady class Tuesday in Minneapolis at 9 a.m., and with the NFL on Wednesday at 9 a.m.
Nelson said at the end of last week's five-hour hearing, regarding the players' request to lift the NFL lockout, that she'd take "a couple weeks" to rule on the injunction, and she urged the two sides meet in the meantime.
On Monday, Nelson noted that her order to resume mediation "will not have the effect of a stay on this litigation," and that she would rule "in due course."
The NFL campaigned in a series of letters to return the negotiations to the Federal Mediation and Conciliation Service in Washington, D.C., where 16 days of negotiations were staged under the auspices of federal mediator George Cohen, and offered legal protection to the players in light of their concerns that such talks could be used against them in a separate case before the National Labor Relations Board.
On Monday, Nelson also said that "the fact of participation in this court-ordered mediation, and any communications conveyed between the parties in this process, shall not be admitted or used against any party in any other proceeding or forum, for any purpose."
That addresses the players' concern that any new negotiations would not be considered the NFLPA returning to union status.
The Brady class, in its letters, said it desired to take Nelson up on her offer to facilitate the hearings in Minnesota and, according to sources, was against returning to the FMCS because of the poor way talks ended there on March 11, and lack of binding power wielded by Cohen.
Nelson's involvement won't be binding, but she would have more ability to control talks than Cohen could, while overseeing an appointed mediator.
First, with Nelson overseeing the talks, only she and Boylan could declare an impasse. Second, as the sides agreed on individual issues, she or the appointed mediator could move each one off the table, making for a more efficient process, without allowing one side or the other to go back on something that was already agreed upon.
On Friday, in advance of Monday's order, the Brady class filed paperwork to add NFLPA executive director DeMaurice Smith to its counsel, and the NFL added Robert M. Cooper, a partner in league outside counsel David Boies' firm, to its counsel. The maneuvers allow Smith and Cooper to take part in any and all mediation proceedings.
The motions to add Smith and Cooper were granted Monday.
Boies, a recent addition to the league's legal team, was the lead attorney for the NFL during the injunction hearing.
In any case, if mediation fails and Nelson rules, no matter which way that ruling goes, an appeal would be a near certainty, taking this case to the eighth circuit.
The NFL lockout reached the one-month milepost on Monday.
The Associated Press contributed to this report.
