How did this end up in front of a judge? Because right from the beginning, the NFL took steps that made it inevitable by its own position in this. By way of disclosure, I am a Raiders fan who is still bitter over the Tuck Rule screw job. But as one who tries to be rational, it was easily predictable that this would end up before a judge
One of the key things to view when looking at negotiations is the difference between position-based negotiations and interest-based negotiations.
We are all pretty familiar with this concept, even if we haven’t heard them spelled out. The classic example that is used is when two people both want an orange, but there is only one orange.
In a position-based negotiation, each will plead why he should receive the entire orange. One may argue that he is vey thirsty and needs the orange to drink. The other person may argue that the room smells, and the orange can be used to impart a pleasant aroma. In a position-based negotiation, each one would want to win while the other loses.
In the Deflategate scandal (okay, I am interested in ending the attachment of “-gate” to every controversy. I think it has jumped the shark), the NFL was faced with an initial choice to find out what was going on. Tom Brady was interested in avoiding punishment.
The NFL then performed an investigation. The Wells report was a remarkable piece of legal mumbo jumbo. Lawyers know what the terms meant but the public did not. In consideration of the PR nightmare it faced with domestic violence, the NFL took a position of swift and firm punishment.
In doing so, the NFL supported its position with questionable facts. The Wells report contained statements of evidence and the NFL either blew the statements beyond the report or inserted its conclusions regardless of the report altogether.
Brady, on the other hand, had his position in this. He wanted to clear his name. But he also had legal counsel. Legal counsel seemed to have ably advised Brady that it doesn’t matter what happened, but only what the NFL could PROVE happened. Thus Brady took a defensive position and appeared to not be fully cooperative.
The judge in the case demanded efforts to settle. By this point, settlement could not happen without: (1) egg of the face of the NFL; or (2) egg on face and perjury charge of Brady. Neither option left for settlement.
Settlement negotiations were persistently marked by reports of the NFL wanting an admission of guilt from Brady. As explained above, Brady couldn’t do that. He was locked in to his old statements.
Thus the judge was left to decide. The judge awarded the orange to Brady. Brady won, his position being that the NFL could not prove the case. The NFL lost, its position being that the commissioner had the authority to be arbitrary and capricious.
What else could have been done? Had it started with interest-based negotiations, then the whole sideshow could have been prevented.
Back to the orange. Recall that one person was thirsty and wanted the juice. Recall that the other wanted the orange because it smelled good. A judge would have two choices: (1) award the whole orange to one or the other; or (2) cut the orange in half.
But another option exists. The second guy wasn’t interested in juice. The first guy wasn’t interested in the rind. They could both win by peeling the orange and each taking what they wanted.
The NFL could have accomplished this. First, the NFL could have approached it by announcing that it wanted to find out what happened in order to prevent the problem from recurring. If the NFL wanted facts, it can beat obtain them through amnesty to alleged wrongdoers. This may also mean NOT taking statements under oath.
Brady could also have cooperated better. Sure, you ditched your phone. This may be an indication of wanton to hide something from the NFL relating to this matter. It could also be that he had stuff in that phone the NFL had no business knowing. There are ways around that, too.
Brady could have cleared his name. The NFL could have fixed the issue. But in the beginning, the NFL was about affixing blame. This was the opening position, and perhaps the opening interest. Once that interest took hold, the end result was pretty much guaranteed.
When going into a problem, there is much to learn from the handling of this case. Keep it civil. Keep it open. And what is it that you really want? When positions get in the way of what you really want, you may just end up with nothing.
And the other side may have leftover rind that it has no use for.