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<xTITLE>The NFL Should Try Mediation First</xTITLE>

The NFL Should Try Mediation First

by Gerald Clay
November 2017 Gerald Clay

At the end of last year’s football season, Colin Kaepernick knelt during the national anthem to protest police violence and racial inequality, a decision that certainly contributed to his absence from an NFL roster this year.  Now, football has been in turmoil over scores of athletes who have followed Kaepernick’s example, sitting or kneeling in protest.  During an exhibition game in London certain players stood during the playing of God Save the Queen, but knelt during our own national anthem.  

All across the country, fans are divided on the protests. Some support the players using their platform to draw attention to an issue they feel isn’t getting enough attention, or at least support the players’ right to do so. Others have voiced their outrage over what they see as disrespect for the flag, the anthem, and the men and women who have fought and died for it. Even the President of the United States has gotten involved, demanding the firing of kneeling football players.

On October 17th, 12 players and 11 owners met privately to discuss the kneeling issue.  It’s hard to know exactly what took place, but certainly it can be assumed the players and owners sat down and attempted to discuss their positions and negotiate.  After the meeting, the league and its players union issued a statement saying:

“Owners and players had a productive meeting focused on how we can work together to promote social change and address inequality in our communities.”

A productive meeting might have meant they didn’t yell at each other but it also doesn’t seem to have produced any resolutions or results.  With a clash of outside voices demanding action, emotions running high, and so much at stake, it’s unlikely any future “productive meetings” or negotiations are likely to be productive.  

What they need is a better technique: Mediation.

Mediation is different from negotiation because a third party, a Mediator, enters the fray.

The Mediator brings a third-party’s assistance to help the Owners and Players actually see what is in each one’s “Best Interests”.

This is the genius of Mediation.

The Mediator, someone who is acknowledged as neutral and respected by both the Players and Owners would engage in “Shuttle Diplomacy” – where he or she would meet privately with each side.  Talking confidentially, the Mediator would explore the Player’s desires to shine a light on their real and perceived issues of Racial Injustice and possible deals to be made with the Owners.

Alternatively, the Mediator would explore the Owner’s Best Interests, which would include keeping and expanding their fan base and maximizing their profits.

Mediation would provide the players the opportunity to confidentially discuss the reasons for their continued actions in an environment where emotions aren’t running as high.  Based on the public statements of those players who have spoken up about kneeling, their right to protest is secondary to the issues they want to shine a light on.  Figuring out what actions could be taken could lead to more effective ways to highlight and tackle issues of racial injustice and, in turn, provide a reason for players to end their protest.

The owners would also be better off talking confidentially to a Mediator about the players’ requests and the owners’ interests.  The Owner’s interests of keeping their fan base and increasing profits would be secretly discussed so as not to seem avaricious.

It is this identification of interests where Mediation will work while private meetings will end with inconclusive statements from each side. 

Besides confidentiality of discussions, a trained Mediator will bring a host of techniques to enable each side to first see and then obtain their best interests.  A Mediator could help both parties define their best interests, then help them negotiate without the potential volatility of face-to-face meetings. The ideal result would be a settlement allowing both sides to maximize their interests, save face and present a unified position.

The owners and players share a multi-billion dollar stage in which both sides have a vested interest.  The players are looking to use this stage to shine a light on real and perceived injustice.  The owners are looking to put a product on this stage that will attract viewers and advertisers, and thereby maximize the return on their investment.  A good mediator could help them to see that these goals do not necessarily have to be in conflict, and that a win-win solution is possible.

Let’s hope Mediation is tried first, the next time around.


A popular and frequent lecturer on the topics of mediation and construction law, Gerald (Jerry) Clay, has been a practicing attorney for over four decades, and a vocal advocate for Alternative Dispute Resolution (ADR) for almost as long. Since training as a mediator in 1984, he has mediated or arbitrated over a thousand construction, commercial, and real estate disputes, and is a recognized pioneer in ADR application to construction and business. Jerry is the co-author of the popular book, “Before You Sue,” an introduction for the public at-large to mediation and its benefits. In addition to practicing law, Jerry is an adjunct professor for Hawaii Pacific University’s MBA program and has also served as an adjunct professor at the University of Hawaii Law School. He is the former president of the Mediation Center of the Pacific, a fellow in the American College of Civil Trial Mediators, and a member of the National Academy of Distinguished Neutrals.

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