NFL lockout: Judge Susan Nelson has reputation as a master mediator
By Amy Shipley,
The issue polarized the greater Minneapolis community and attracted national headlines: should two gay teenagers be allowed to walk as a couple in their high school’s royalty court? School administrators said no. In late January, the girls sued.
Just a month into her tenure on the federal bench, Susan Richard Nelson handled the dispute by making sure it never got into a court room. She surprised the girls and school officials by inviting them into her chambers on a Saturday for an unsolicited mediation.
After more than six hours of talks, the teens agreed to drop the lawsuit. Two days later, they walked together in the royalty court.
“The whole day I will look back on with such gratitude, the way she approached it,” said Dennis Carlson, superintendent of the Anoka-Hennepin schools, who participated in the settlement conference in the largely vacant downtown courthouse. “Dignity and grace come to mind.”
Now Nelson is in charge of an equally incendiary and much larger fight: the National Football League players’ lawsuit against the NFL, which accuses the league, among other things, of illegally locking players out of team facilities. Whether Nelson will urge or attempt to force NFL players and owners to settle their emotionally charged conflict, which centers on how to divide $9.3 billion in annual revenue, remains to be seen.
But as an April 6 hearing in her St. Paul courtroom approaches, Nelson wields substantial power over the fate of the nation’s most popular sport, with her first ruling likely to determine how soon players get back on the field and under what conditions.
The case landed in front of Nelson, 58, who earned a reputation as a master mediator during a decade as a U.S. magistrate judge, after collective bargaining talks collapsed March 11. That day, the players dissolved their union so they could file a class-action suit alleging a number of anti-trust violations by the NFL. The owners locked out the players the next day.
The crux of the complex case is whether the league’s lockout represents an appropriate labor tactic or an anti-trust law violation.
“How Judge Nelson decides the fundamental issue, which is whether or not to enjoin the lockout, is going to affect enormously the collective bargaining leverage on both sides,” said Gary Roberts, the dean of the Indiana University School of Law in Indianapolis. “However she rules is going to set the table for negotiations that, I’m convinced, will lead to an agreement sometime in late summer.”
The players will score a major victory if Nelson grants their request for a preliminary injunction to lift the lockout. They could return to work while the owners, who would almost surely appeal, would confront the possibility of more grim anti-trust rulings from her.
The owners’ position, meantime, would be strengthened by an extended lockout, which could destroy players’ morale as their wallets grow lighter. The lockout would remain in place if Nelson decides in favor of the owners or abides by an NFL request to defer to the National Labor Relations Board.
Roberts said Nelson also could try to come up with a “clever ruling” intended to bruise both sides in a calculated attempt to shepherd everyone back to negotiations, which, unless the litigation were withdrawn, would take place with her guidance.
Nelson’s background suggests she might press for settlement talks sooner than later, but it offers little hint about which side she might favor in the short term. Colleagues and attorneys said Nelson’s ability to broker deals is surpassed only by her reputation for even-handedness in the court room. A review of many of Nelson’s major cases over the last decade shows no clear trend or political bent.
Despite a dearth of experience as a U.S. district court judge, Nelson, who was appointed by President Obama and confirmed by the Senate just over three months ago, has attracted legions of devotees after 17 years as a prominent trial lawyer and 10 as a U.S. magistrate judge--a role that called for her to strongly encourage parties to settle their disputes. Magistrate judges assist federal district judges by handling certain proceedings.
Even attorneys Nelson has ruled against describe her as a mild-tempered, measured, thoughtful judge who inevitably leaves both sides believing they received a full hearing and a fair shake.
University of Minnesota Provost Tom Sullivan co-chaired a committee that considered more than 100 people for the judicial vacancy Nelson filled.
“She just stood out without question. She was head and shoulders above everyone else,” said Sullivan, who had never met Nelson before the search. “. . . All the way along, everyone was confirming and reaffirming her sterling reputation and ability.”
Nelson earned a unanimous “well qualified” rating, the highest possible, from the American Bar Association committee that reviewed her qualifications for the judgeship. Robert Weinstine, an attorney who led a panel that reviewed whether Nelson should receive a second eight-year term as a magistrate judge in 2008, said his group received only one complaint about Nelson.
“One thing [the attorneys] all loved was trying cases, and she settled too many,” Weinstine said with a laugh. “I’ve practiced law for 40 years, and she’s the best settlement judge I’ve ever appeared in front of.”
Nelson ruled against Jim Nikolai, an attorney with the Minneapolis firm Nikolai and Mersereau, in a 2007 patent infringement action that eventually was settled. Yet he also described her as an “excellent” judge.
“Her opinions, while I don’t always agree with them – particularly when she finds against me — are always thoughtful,” Nikolai said. “She’s thoughtful in her approach and thorough in her analysis.”
A court clerk said Nelson would not discuss the case.
Her credentials might partly explain why NFL players did not request the case be moved from Nelson’s bench to that of David S. Doty, another judge in the same district who oversaw the NFL’s last collective bargaining agreement — and whom the NFL accused in filings last year of favoring the players in NFL disputes. Doty has made several recent rulings favorable to players, including one that jeopardizes $4 billion in television payments that owners were counting on during an extended lockout.
A Buffalo, N.Y., native, Nelson worked as a bank teller, summer camp counselor and waitress at Stouffer’s Restaurant while attending law school at the University of Pittsburgh, according to her judicial nominee questionnaire. After stints as an associate at firms in Pittsburgh and New Haven, Conn., she landed at the Minneapolis firm of Robins, Kaplan, Miller and Ciresi, where she worked full-time on one of the biggest cases in Minnesota history.
In the mid- to late-1990s, Nelson represented the state of Minnesota and Minnesota BlueCross BlueShield in what proved to be a historic defeat for the tobacco industry. After a 15-week jury trial, the case settled in 1998 on the last day of final arguments, netting one of the largest tobacco payouts ever – more than $6 billion.
Nelson lived in a hotel with other attorneys during the trial, which Michael Ciresi, the lead attorney for the state, said demanded 18-20 hour days and was marked by bitter encounters with the defendants’ counsel. Ciresi said Nelson and one colleague faced some 30 lawyers for the tobacco companies at some legal conferences, but she never lost her cool.
“She’s unflappable,” Ciresi said. “She doesn’t let people get to her.”
Ciresi also said: “There’s no game that could be played that she wouldn’t be able to discern. She is tough but temperate and compassionate, and she has a great intellect. . . There is nothing about the NFL case that is going to faze her.”
Nelson actually dealt with NFL attorneys in a limited way in 2009, handling various motions as a magistrate judge in a class-action suit filed by four retired NFL players who alleged that the NFL did not properly compensate them for using their names and images in promotional films and materials.
During her confirmation hearing last May, Nelson told the Senate Judiciary Committee that mediation is “an important opportunity” to be provided in legal disputes.
“By nature, settlement’s difficult,” she said. “It’s a compromise and it’s difficult not to win. . .It requires certain skills but, most importantly, that the parties do trust you and respect your judgment on assessing the strength of their cases.”
Roberts feels certain the case will be settled eventually. The only question is when, and whether Nelson will push the issue.
“Irony aside, federal mediators aside, if anyone on earth could settle this thing,” Weinstine said, “it’s probably Judge Nelson.”
Staff researcher Julie Tate contributed to this report.