Mediating Deflategate

The National Football League sought a "home field advantage" by racing to the federal courthouse in New York City to file its action seeking to enforce Commissioner Goodell's discipline of Tom Brady in the so-called Deflategate contretemps. The League may have received less of an advantage than it thought as Judge Richard Berman has pressed the parties to settle their dispute. Mediating Deflategate, however, will be a significant challenge.

This dispute has offered a "teachable moment" for the nation's football fans about methods of resolving employment disputes. Some may have actually learned the difference between arbitration and mediation. An arbitrator is a neutral adjudicator selected by parties to a collective bargaining agreement and empowered to resolve disputes that arise under that agreement in a final and binding manner. (Commissioner Goodell had the power to discipline Brady under the bargaining agreement, but he was not a neutral arbitrator.) While anyone can be selected to serve as an arbitrator, there are about 300 experienced neutrals in the country who hear 90 percent of all the cases that go to arbitration. All of them are elected members of the National Academy of Arbitrators.

By comparison, a mediator is selected or appointed to facilitate private discussions between the parties to a dispute in an effort to help them reach their own settlement. The mediator normally does not have the power to actually resolve the dispute. Virtually all arbitrators also do some mediation and the federal government employs mediators who work full-time for the Federal Mediation and Conciliation Service. Arbitrating and mediating require very different skill sets.

It is not unusual for a state or federal judge to encourage parties to reach a settlement and even engage in mediation to achieve that goal. Normally, a mediator (in this case, Judge Berman) would meet separately with management and the union, seeking to ascertain their real goals in the pending dispute. (A party may say one thing for public consumption and something else behind closed doors.) A mediator needs to determine whether there are outcomes where both parties will obtain value, such as saving face.

The mediator then attempts to move the parties' positions closer together by, for example, creating uncertainty in their minds about the potential outcome of the case if it went to a trial on the merits. Judge Berman did that this week by questioning the League's attorney about the factual underpinnings of the Commissioner's ruling. He asked counsel for the League three times to identify the evidentiary basis for the conclusion that Tom Brady orchestrated or even knew about the alleged deflation of the footballs. There was, of course, no such direct evidence. He then did the same with counsel for the Players Association, questioning why Brady would have his cellphone destroyed just as he was to appear before the Commissioner. Both interrogations should raise doubts in the minds of the parties about what would happen were Judge Berman to decide the case on the merits. Judge Berman then added a fact -- one that litigators already appreciate -- that litigation takes a long time.

It seems most unlikely that the parties will be able to reach a voluntary settlement of the matter even with Judge Berman's worthy intervention. Tom Brady and the Players Association will receive no value at all in any outcome that includes a suspension of even one game. If, in fact, Brady did not participate in the alleged wrongdoing, then there is little advantage in admitting that he did. His "legacy" is on the line, as sportscasters repeatedly remind us. If he did engage in some form of misconduct, it is likely the matter would have been resolved months ago.

Similarly, Commissioner Goodell will reap little value in anything short of an admission of guilt on Brady's part. The Commissioner has spent the last few years being "sacked" by his own disciplinary process. He must fight to maintain his status as the overseer of America's most popular game. Anything short of a suspension -- not necessarily four games, but any suspension will do -- fails to achieve this vital goal.

Judge Berman does have other more explosive techniques he can use to break the logjam. He can directly tell each party in private that they will lose the case, but only after they accumulate enormous legal fees and public scorn. That may not be sufficient, however. The Commissioner could always say that his power remains intact and Brady's win was procured by a misdirected judge. The Commissioner's reputation in matters such as this one is already in tatters. Brady can do the same - throw the Hail Mary pass and go for a judicial judgment -- but without the same effect, because his reputation will be besmirched in the process.

It would be a remarkable accomplishment, however, if Judge Berman was able to move the parties to settlement. It would demonstrate that mediation is preferable to adjudication. If that is to occur, it will happen soon, before the parties dig in for legal trench warfare that lay ahead.