The hard negotiator sees any situation as a contest of wills in which the side that takes the more extreme positions and holds out longer fares better. He wants to win; yet he often ends up producing an equally hard response which exhausts him and his resources and harms his relationship with the other side.

–Roger Fisher and William Ury, “Getting to Yes: Negotiating Agreement Without Giving In”

On the football field, it’s all about winning. You don’t get a prize for second place. There is no standing still, and we hate ties. It’s an engrained part of the game.

Those instincts to strive for victory are necessary for success in the game. However, those same instincts don’t necessarily serve the two sides well when it comes to negotiating an agreement when there are so many reasons to work together. Instead, we hear talk about how the players won the negotiation last time, and it seems like the sides think this is some sort of zero sum game where a W and L will be assigned at the end. Tactics like walking away from a bargaining table are classic competitive negotiation tactics, as are much of what we have seen from both sides.

That quote above is from the book “Getting to Yes: Negotiating Agreement Without Giving In” by Harvard professors Roger Fisher and William Ury. One of the most informative classes I took in law school dealt with negotiations, and applying many of the principles from that book. Here are four key points from the book and how they can apply to the labor situation.

1. Separate the people from the problem. Panthers owner Jerry Richardson’ recent reported behavior during a Super Bowl week negotiating session that included both Drew Brees and Peyton Manning is just one recent example of this. If you can’t get past personalities or wanting to trade barbs in the room, you’re not going to get a deal done. The problem is how to divide the ever expanding revenues–if the league and players took a step back, they would see just how good of a problem to have that it is. The parties need to find common ground and focus on the common problems, not attacking each other.

2. Focus on Interests, rather than Positions. You can’t be lock-step married to specific positions, because the negotiation will go nowhere. The parties need to do a better job of identifying their interests. In Roger Goodell’s op-ed piece that appeared today, there are some indications of what those underlying interests might be. The owners have talked about the “future of the game” but alot of that has seemed like rhetoric. Goodell mentioned “[w]e need new stadiums in Los Angeles, Minneapolis, San Francisco, Oakland and San Diego.” You’ll notice that includes all three current teams in California PLUS the city of Los Angeles. The NFL teams have built or renovated several new stadiums in the past decade (by my count, over half of the league’s teams have either moved in a new stadium or had major renovations since 1998), and part of that model included getting substantial public funding in many of those locales. That’s not happening in California, and the league has an interest in increasing cash flow to fund those stadiums. In fact, this is the driving force behind what is happening.

The players, on the other hand, have an interest in getting paid now, with short careers and non-guaranteed contracts providing different incentives. The long term benefit of increased revenue streams in Los Angeles and with modern facilities for California will not inure to their benefit; many will be out of the game by the time they are producing. Which leads to . . .

3. Generating a Variety of Options before deciding what to do. Forget the specific platforms, brainstorm, and find common ground. Don’t throw out any idea as crazy from the outset. I don’t know what the specific interests the sides identify will be, but let’s say it is freeing up cash flow for investment in California stadiums for owners, and for players, making sure they make money while they can (in whatever form that can be). If the owners are serious about the players investing in the game, then maybe they make them investors in the game. Be creative. Set up some form of compensation, in exchange for freeing cash flow now for stadium development by making these players–not the future ones–partners in the venture even if they are not still active when the stadiums are complete. That’s just one example, they should have creative people on both sides and their is plenty of room for creative solutions.

4. Insist on using Objective Criteria. Goodell mentioned that “[w]e need an agreement that both sides can live with and obtain what they need, not simply what they want.” The parties need to define those objectives internally, but they need to be reasonable and objective, not driven by emotion or needing to win. Fisher & Ury spoke of having a BATNA, which is the Best Alternative to a Negotiated Agreement. The parties have been doing things to create leverage, but neither should prefer the alternative to an agreement. This isn’t two businesses passing in the night-these sides need each other. The players don’t have another venue to make this much money, as their is no rival league. The owners will not achieve the popularity (and revenue streams) going forward with lesser players, or if the financial incentives for future players compared to other sports leagues drives down the talent pool.

At this point it’s devolved to a match between toddlers. The NFL comes out and says let’s work toward a solution, a day after they file a labor relations board suit. The NFLPA threatens decertification. The NFL negotiates its television deals in such a way to insure payment during a lockout, the NFLPA engages in tactics to challenge the legality of such payment. Leverage creating steps, but also steps that destroy trust and the ability to work toward a mutual solution. Who started it? I don’t care. It’s just like two toddlers, and they need to take a timeout. They need to realize that there is much to reach common ground on, and begin finding it.

[photo via Getty]