Transcript of David Boies’ post-hearing media briefing

Following is a transcript of NFL outside counsel David Boies’ media briefing after today’s hearing in St. Paul, Minnesota.

NFL OUTSIDE LEGAL COUNSEL DAVID BOIES

POST-HEARING MEDIA BRIEFING

April 6, 2011

I will keep this short, because it has been a long day I know for all of you.  We had a long argument.  The judge listened.  The judge was very well prepared, asked a lot of good questions of both sides.  Our basic position was, as it has been, that we believe that these kind of matters ought to be settled at the collective bargaining table and not in a Federal Court.  We have asked the court to deny the injunction that the Players Association has asked for.  The Judge said that she would take it under advisement; that it would take a couple of weeks, at least, to make a decision — which is pretty obvious with a case of this importance.  So we will be awaiting that decision with the same anticipation that you will.

 

On if NFL is willing to go to the federal table as she encouraged:

We have said from the beginning that we are prepared to resume collective bargaining.  The Federal Mediation service has a lot of experience and is ready to go.  All it takes is for the Players Association, formerly known as the union, to decide that they are prepared to come back and bargain.

On Jim Quinn’s interpretation that the Judge’s offer for mediation as talks for a settlement of the litigation and if he sees it that way:

They have been trying to avoid collective bargaining, so it does not surprise me that is the union’s position.  However, I think that if we are going to get a resolution, if we are going to get the people back to the bargaining table so that we can reach a settlement and have a football season; it is going to be necessary that we do it in a normal collective bargaining context.  The Federal Mediation Service does this for a living.  They have been doing it for a living on this particular matter.  They have seventeen days of expertise.  They are the people that ought to be putting this forward.  If we can just get the union to sit down with us, we can make a lot of progress. 

 

On knowing which side Judge Nelson favors either side following questioning:

You really can’t.  I have been doing this for 45 years.  I have never been able to figure out from a judge’s questions exactly where they are coming from.  Sometimes they ask you tough questions because they are coming out the other way.  Sometimes they ask you tough questions so that you will give them an answer that they think will support what their previous position is.

All you can say is the judge was very well prepared.  She asked very good questions of both sides.  Trying to read into where she is coming from, I am not able to do that.

On progress towards discussing a new deal considering NFLPA counsel Jeff Kessler’s comment that Judge Nelson suggested reaching a settlement to the class-action settlement rather than CBA negotiations:

From what Jeff Kessler says, apparently it hasn’t because we don’t need a settlement to a lawsuit; what we need is a collective bargaining agreement so that players can go back playing and the league can put on games.  Until we have that, we are not going to make any progress.  Going in and having Jeff Kessler, me, Michael Hausfeld, Jimmy Quinn and other people debate the merits of the Norris-LaGuardia Act, the antitrust exemption, the statutory exemption and the non-statutory exemption standings and all of the kinds of things that lawyers get paid to argue about is not going to move forward the issue that is really important, which is reaching a labor management settlement.  That is what has to happen.  That can happen if we just get back to bargaining.

The Federal Mediation (and Conciliation) Service, as I said before, are the people who do it for a living.  They do it in industry after industry.  They are the people who can facilitate a settlement.  We ought to be taking advantage of that.  Obviously, we’ve got to go back and talk to our clients, I believe the league would be willing to go back immediately and talk in those contexts. 

On a legal settlement in the Reggie White case leading to the 1993 CBA:

Look how well that worked.  There is a big difference because the issue is whether we are going to be debating all of the kind of legal points that you heard us argue about or whether the real parties of interest are going to get down and solve this problem.  Frankly, neither Jeff Kessler nor Jimmy Quinn, nor I nor Gregg Levy ought to be involved in this process.  This ought to be a process for the league and the Players Association.  They are the ones who can work something out.  Kessler, Jimmy Quinn, myself and Gregg Levy, we all like each other but we would just be arguing the merits of our case.  What needs to happen is people need to get in there – the players, the league and the owners – and work out a business labor management solution. 

On the NFLPA stating the NFL could enact rules that it would not challenge with an antitrust lawsuit:

I believe there are many sets of rules that they should not challenge.  Whether there are rules that they would in fact not challenge, I’d have to wait and see. In their complaint, they have taken some very broad positions in terms of what would violate the antitrust laws, positions that I think are not supported by the law and maybe they will recede from it, but I would have to wait and see what their actual position is.

On preparing for an appeal:

This is the first quarter.  Hopefully, we can divert the game back to the playing field and away from the federal courts.  We are always preparing for contingencies both ways because no matter who wins here, the likelihood of an appeal if we don’t get this settled on a labor management basis is pretty realistic.

On Judge Nelson’s jurisdiction and not needing to wait for a ruling from the NLRB:

She clearly has a substantial amount of discretion.  The discretion came up in a number of different contexts.  One, it came up in the context of if she was going to hold another entry hearing, she had the discretion to how much discovery to order or whether to order discovery.  As I said, there I thought she did have substantial discretion.  It also came up in the context of an abstract question about primary jurisdiction.  I said there she might very well have the discretion.  It also came up in the context of labor management relations and the National Labor Relations Board.  There, I indicated that my reading of the grounds is from the United States Supreme Court was that there was not discretion.  There had to be deference to the administrative agency that the United States Supreme Court says has the expertise.

On labor peace following the White settlement:

It depends on what you mean by the White settlement.  There was a collective bargaining agreement that was reached. 

On the CBA being reached through the White settlement:

You’ll have to be the historian on that.  All I can say is that there was a collective bargaining agreement that was reached.  I don’t think there would have been a White settlement without a collective bargaining agreement because they have to solve the problem of what the rules are going to be between labor and management.  This is an issue between labor and management.  The reason that for 80 years we have had a policy in this country of leaving these kinds of issues to collective bargaining is that people believe labor management negotiations in good faith with each other are more likely to result in a right result than having a bunch of federal courts, juries and lawyers get involved.

The collective bargaining agreement that was reached, it probably was fine.  I frankly don’t know a lot about it.  In terms of the White settlement, that was probably an unnecessary appendage.  Like many unnecessary appendages, sometimes they get inflamed.

On retired players’ suit being involved as well:

It’s not a big deal because it is basically the same thing.  There are a few technical, legal issues that they raise, but basically, it is the same argument.  So it does not add a lot.

On if judge’s ruling will be on both jurisdiction and an injunction:

I don’t know.  She could do both.  There are a variety of ways she can resolve it.  I would be a poor predictor of how she would approach it. 

On if he was surprised that the subject of irreparable harm was almost absent from discussions today:

No, because both sides emphasized in their briefs the issues we talked about.  The irreparable harm, the normal preliminary injunction standards, those are well known to the lawyers, well known to the judge.  There is not a lot of need to explore those in detail.  I think what we were talking about were the things that made this case different as opposed to things that made this the same. 

On if NFLPA would be on the hook if they came back and bargained the way the NFL would like, if things did not work out, would they then be accused of acting as a ‘union’:

Would I do that? [laughs]  I might do a lot of things, but I don’t think that is something they ought to worry about.

On how fans should read today:

I think fans should be disappointed that this is still in the courts and not back in federal mediation, because I think that federal mediation is the fastest, best way to get us to a football season, and I think that is what fans want.  On the other hand, there is always going to be some skirmishing, and we have got a lot of time still.  Hopefully, reason will prevail.

On if it would be surprising if there were no talks in the next few weeks given the differences in mediation vs. settlement:

I would not want to say that.  Their preferred approach has always been litigation.  Our preferred approach has always been mediation and negotiation.  I don’t think it is surprising that as we walk out this courthouse, neither one of us have changed their approach.  Whether or not we can work something out over the next couple of weeks?  Maybe we can.  But I would not read too much into it.  We are still saying we would like to see a football season, we would like to have mediation, we would like to solve this situation at the bargaining table.  They are saying they want to litigate.  That is where we have been. 

On what kind of damage could occur is league is forced to play a season with an injunction ending the lockout:

One of the problems is going to be that, as the court indicated, even if there was an injunction relating to the lockout, that would not solve the problem of how to operate the league.  So that really just delays the process of resolving the underlying issues that have to be resolved by collective bargaining if you are going to have a league season.  So even if you have an injunction, I think that is a backwards step toward resolution.  The fastest way this gets resolved is for the parties to get back to good-faith negotiating.  That may not happen until the union is convinced that the litigation strategy is not working.  They have adopted a litigation strategy as opposed to a negotiation strategy.  Unless we start negotiating, we are not going to reach a resolution.  They may not start negotiating until their litigation strategy falters.  That would be too bad, but I can see that happening. 

On if the same rules from last season would be in place if the injunction is granted:

I can’t comment on that. 

On how an evidentiary hearing would be handled:

Well it would come into play if she decided there were factual issues that required an evidentiary hearing.  Then I think she would schedule it quite promptly.

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