By Laurel Stout
After months of protests during the national anthem, the NFL and a coalition of players are finally sitting down to discuss how the league and its players can use the league’s platform to talk about social justice, equality, and criminal justice reform.[1] However, before the meeting has happened the two groups are already disagreeing. The players asked for a mediator to be present to help solve the current problem and the NFL declined the players’ request. [2] With this refusal, the likelihood of an agreement of any sort has significantly decreased.
A mediator is a neutral third-party who helps two or more adversarial groups come to a compromise. The mediator does not come up with the compromise, but instead helps lead the discussion in a direction that will allow the parties to come to their own resolution. Also, the mediator facilitates mutual understanding of each parties’ respective argument in an effort to isolate the important issue at hand. Overall, the mediator, an unbiased party, can look at the facts objectively and not allow emotions and individual interests to lead the discussion. Mediators are a valuable resource for parties where the emotional stakes related to the issues are high.
Legal mediation is a great tool that should be utilized because it is effective, quick, inexpensive, convenient, empowering, and confidential. When mediation is used parties come to a mutually satisfying long-term agreement around 86% of the time.[3] Normally, cases that go through the court system and litigate can take years; however, mediation can resolve a conflict in as little as an hour or two. Further, the amount of money spent for mediation is a lot less because attorneys are paid at an hourly rate and the less time spent on the case means less money will be spent. Mediation is also convenient for the all the parties because they can determine dates, times, and locations that work well for everyone’s schedule rather than following the schedule of a court. Mediation is empowering because it allows the parties to come to their own resolution which in turn empowers the parties to feel as though they got what they wanted out of the agreement. Finally, mediation is confidential because any statements or documents made in the process of mediation cannot be used in any legal proceeding without the consent of all parties involved. [4]
In the current situation regarding the NFL and the players, the league does not a see a need for a mediator. The NFL believes the strength of the discussion will be the direct dialogue between the players, the commissioner, NFL Vice President, and NFL owners. [5] Obviously, the players feel differently since they requested a mediator. The mediator would make the discussion more effective and empowering, especially for the players who are looking for a platform where they feel empowered to stand up for their beliefs. Also, the mediator would allow the conservations to be “confidential and not used as PR stunt or prop by the league” especially, with Colin Kaepernick’s collusion case against the league occurring simultaneously.[6]
This situation has been ongoing since August of 2016, about sixteen months ago, when Colin Kaepernick first sat and then knelt for the national anthem. Many other players across the NFL and other sport leagues followed Kaepernick’s lead by protesting during the anthem. The NFL did not appear to take any major steps towards a resolution with the players until President Trump brought the issue to the forefront of national news again at the beginning of the 2017 season. No matter what side of the argument one may stand on, it is very clear the President’s comments forced the league’s hand when the league was just fine with letting the issue sit where it was.
Now that the league has decided after so many months to sit down with players and have an actual discussion about this issue, it is unsettling they would deny the players’ request for a mediator. Especially since the league has seen success using an arbitrator in the past. In 2011, the the league and players needed a mediator to find a resolution for the Collective Bargaining Agreement (CBA). A mediator there eventually led the two sides to an agreement after months of negotiations and a player lockout. [7]
Here, this issue is very important from the players’ standpoint to be able to help with the social justice, equality, and criminal justice reform. However, the players will not be able to make any real progress using their platform without the help and support from the league. force these two groups to compromise and settle this ongoing issue. However, it appears the league is just issuing lip service. The NFL wants to present to the world that they are concerned with social injustice issues when in reality the league is putting the issue on the backburner because most players will stand and not protest during the anthem without any extra action from the league. [8] With the current mindset of the league, there probably is not a high chance of success at finding a resolution without the use of a formal mediation process.
[1] NFL doesn’t want mediator in talks with players on social issues, league spokesman says, ESPN (Nov. 7, 2017), http://www.espn.com/nfl/story/_/id/21328672/nfl-want-mediator-talks-players-social-issues-league-spokesman-says.
[2] Id.
[3] John O’Shea, Mediation: Success or Failure?, BLM (Jan. 2017), https://www.blmlaw.com/publications/21587/pdf/Mediation_success%20or%20failure.pdf.
[4] Alternative Dispute Resolution: Mediation Services, The Bar Association of San Francisco, https://www.sfbar.org/adr/resolve-a-dispute.aspx.
[5] NFL doesn’t want mediator in talks with players on social issues, league spokesman says, ESPN (Nov. 7, 2017), http://www.espn.com/nfl/story/_/id/21328672/nfl-want-mediator-talks-players-social-issues-league-spokesman-says.
[6] Mike Florio, NFL rejects player request for mediation, reiterates Kaepernick invitation, ProFootballTalk (Nov. 8, 2017), http://profootballtalk.nbcsports.com/2017/11/08/nfl-rejects-player-request-for-mediation-reiterates-kaepernick-invitation/.
[7] Chris Mortensen, Sources: Talks won’t shift to Minnesota, ESPN (Jul. 18, 2011), http://www.espn.com/nfl/story/_/id/6776103/nfl-lockout-mediation-tap-league-meeting-looms.
[8] Mike Florio, NFL rejects player request for mediation, reiterates Kaepernick invitation, ProFootballTalk (Nov. 8, 2017), http://profootballtalk.nbcsports.com/2017/11/08/nfl-rejects-player-request-for-mediation-reiterates-kaepernick-invitation/.