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NFL lawyer way off course

Posted on: June 3, 2011 4:25 pm
Edited on: June 3, 2011 4:47 pm
 
There's a feeling that NFL attorney Paul Clement, who presented the league's case in court Friday, did better before the three judges of the Eighth Circuit than he did on the steps outside afterward. Because it was there that Clement basically charged that the players are acting as a union by holding bargaining talks with the NFL -- talks that the NFL encouraged and that were held with a mediator present.

They were also talks that were "confidential," as a statement put it, with both sides agreeing not to talk about them. Except Clement just did, and he suggested that the players' involvement was another indication that they really haven't changed since decertifying and are really still a union.

"There's no question," said Clement, "that ... what's going on is continuing negotiations. I think what that underscores is that the union has not disappeared forever. Obviously, everyone can make their own judgments, but I think the problem with the argument on the other side is that it assumes the union is gone forever. I don't think many people who are students of this game or students of this industry really believe that's the fact."

Maybe not, but it's not up to Clement to call out the union here. Remember, the judge who was supposed to act as a mediator -- and who has been -- was present, and he guaranteed that there had to be some kind of agreement between the two sides before talks took place. So why would Clement undercut what seem to have been productive talks? I don't know either, which is why I asked an expert.

"That the head of the former NFLPA is in the room, rather than the named plaintiffs, certainly gives some support to the league's position that decertification was a sham," said Geoffrey Rapp, professor at the University of Toledo College of Law. "However, the federal rules of evidence prohibit the introduction of compromise or settlement discussions in such litigation. Parties nonethless often try to introduce such discussions in evidence, making various arguments to get around the rule.

"With that in mind, my guess is that there was some sort of agreement, formal or otherwise, between the two sides so that the players' willingness to have these discusssions would not be mentioned in any court filings. Were I the lawyer for the players, I would not have permitted my clients to enter into these discussions without such an agreement. Since the NFL presumably wants a resolution as well, I think it would go along with that."





Category: NFL
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Since: Dec 2, 2011
Posted on: January 8, 2012 4:40 pm
 

NFL lawyer way off course

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