SLT- What thoughts do you have on the NFL settlement, and what can we learn from it?

DG- This negotiation was interesting in the way that the power shifted between the two sides, particularly after the judges made decisions.  The other important thing is the impact of time on the negotiation-- they waited until as close to the pre-season as they could. People often wait until the last minute and this can have a major impact on a negotiation.

SLT- What are some of the mistakes you sometimes see in a negotiation?

DG- One thing that comes to mind is that you never want to negotiate against yourself.  I love to catch students doing this. If you give an offer and other party rejects it and waits for your next offer, it is a terrible idea to give the next offer without waiting for the other party to give a counteroffer.  By giving another offer, you are negotiating against yourself.  You should try to wait for the other party to put down a counteroffer before giving your next offer.

SLT- I was taught to always try and get two offers before you give your first offer

DG- Contrary to popular belief, in most cases, you want to be the one to make the first offer.  It is important to come to the negotiation prepared and to conduct any necessary research and analysis that will allow you to propose the initial offer.  You want to aspire high and make your first offer as strong as reasonably possible without getting you laughed off the table.  You want to be able to explain where your numbers came from, perhaps using criteria that appears to be objective.  Studies show that the first offer will often anchor the negotiation, set the tone of the negotiation and bring the other party’s numbers in the direction of the first offer.  

If the other party anchors, you should place a quick counteroffer with the offer you would have used to anchor the negotiation. There are many great resources that agents can use to determine their first offer, such as the NFLPA database.

You can also use simultaneous multiple offers- that is where you put together packages (the ideal number is 3) of offers that you value equally and have the other party choose between them.  In addition to anchoring, this helps you learn about the other party’s interests.

SLT- What about finalizing an agreement.

DG- One important thing is that you want to be the one to draft the agreement, and you are using the principles of anchoring when you do this. It is helpful to clarify everything before putting it in writing.  Additionally, a terrible tactic at the end of any negotiation is to add one more thing after the agreement appears to be complete.  This makes the other party unhappy with you.  The sports law world is very small and it is important to avoid developing a bad reputation.

 
DG- Another big thing is, you want to separate the people from the problem, which means being hard on issues and soft on people.  You don't have to be a pushover.  Sometimes, the other party will think that the negotiation went well because the opposing party was nice.  However, a party can be nice and walk away with an excellent result.  Don’t assume that the nicer person is a “weaker” negotiator, sometimes they are more dangerous.  Separate people from the problem, even if the other party is difficult to negotiate with.  If you are hard on the issues, being mean won't help you, despite the other side’s demeanor.  Be firm with issues and not willing to cave.

SLT - We understand that you were in Moscow recently, presenting at International Association of Sports Law and World Congress of Sports Law. Can you tell us something about this conference?

DG- This conference was a large event with attorneys and academics in sports law fields from around the world.  There were presentations on a variety of topics including Olympic law, European sports law, sports arbitration, doping issues, and the security of sports events.  Many of the attendees were also interested in developing an International Sports Charter.

At this event, I presented on the Osaka rule.  Under this rule, anyone with a doping suspension greater than six months was prohibited from participating in the next Olympic Games.  I presented how for many cases, such as that of LaShawn Merritt, the application of this rule could go against the principle of proportionality and go against the precedent of the Court of Arbitration of Sport’s Puerta decision.  Since my presentation, the Court of Arbitration of Sport has thrown out the rule, stating that it was inconsistent with the World Anti-Doping Code.  This will allow LaShawn Merritt and many others to compete in the 2012 Olympic Games in London.

SLT- Before we let you go, can you give us your views on the NBA lockout?

DG-  The NBA appeared to attempt to use time to get what it wants.  The players were given until 5 p.m. on Wednesday to accept the league’s offer, with the league threatening to harden its stance if the deadline was missed.  However, the league seemed to remove the artificial deadline once negotiations continued.  Since the player’s rejection of the ultimatum, my guess is that the players will likely accept a 50/50 split as long as they can secure agreeable conditions related to there not being a hard salary cap and there not being very hard luxury tax penalties.  Decertification is an option, but many believe that decertifying the union would cause the 2011-2012 season to be cancelled, which would not be good for most of the players.

SLT - Thank you for your insights.