An email I received.
Gentlemen
I see the 49ers have rejected the offer and that the GC has responded to the "Case Against".
All reponses are a little light on evidence and heavy on emotion but that is how I would characterise all of the information that the membership has received. As you will see below, I believe that following the 49ers lead is the only way to proceed. For me, the 49ers rejection of the offer is the most significant and relevant piece of evidence.
In this very difficult negotiation their recommendation is flawed and we need to vote against this motion and give them a mandate to go back to the company. The good relationship they have built with the company will serve them well in delivering to the company the message that the offer needs improving.
The paper posted on the web site sets out the case against the offer and begins by describing why this is a bad offer.
This boils down to 2 facts:
• It is not fair to the 49ers.
• It does little to ensure this will not happen again.
In other words, this does not achieve what we asked the committee to do and what they stated were the goals of the negotiation.
The question is: “Is there an alternative that is reasonably likely to lead to a better outcome; one that treats the 49ers more fairly and makes it less likely the company will act in the same way in the future?”
The GC judgment is that there is no realistic alternative.
Their judgment is based on 2 main arguments:
• There are limits to what remedies courts can decide on.
Since the offer is close to these limits it must be a ‘good’ offer.
• If we proceed we will face very high legal costs.
But these are poor and somewhat misleading arguments.
To take the first: Yes, the courts are limited by these remedies but the company is not. If it is in the company’s interests to do so, it will exceed these limits. It is likely that its reputation and that of its CX officers are worth a good deal more and that the company will, therefore, settle out of court. The fact is that in the context of the whole process, which could include going to court, there is no upper limit.
Indeed, the court remedies could now be viewed as a lower limit since the company has more or less matched them
That said, there is of course an upper limit to what CX would pay and that would be a sum just short of making the company insolvent. Obviously, this is very unlikely, so much so, that the GC, quite rightly, has not mentioned it. Now, this will seem a trivial point to make except that the GC has been selective in which unlikely events they mention. Take, for instance, their 2nd main argument, that of costs. Here they are happy to emphasise a very unlikely outcome. Nearly all the reasoning presented to us by the GC is based on worst-case scenarios where costs are concerned.
Yes it is technically possible that all costs are awarded against us, but it is not likely. To date most costs have been awarded against the company.
What would be more useful is guidance on likely outcomes rather than the limits that bound them. However, this is not as straightforward as defining the limits. It requires extensive knowledge of the legal process, allied with good judgment in assessing how badly the company wants to stay out of court. To whom can we turn for such advice?
Well, for many of us, when first faced with this decision, we instinctively turned to the 49ers themselves. For most, this was a question of morals – an obligation to support the 49ers in which ever way they preferred. Well, as it happens, this is a very sensible way to proceed and for more than the moral reasons that, for many, would suffice. We have the company to thank for a large and diverse group who after 3 1⁄2 years are well versed in the legal process. And now, thanks to the company they are well motivated to make the correct decision.
The 49ers have an offer that we have been told is reasonable.
(Do not forget that the general membership is voting on funding; the <10 months / job interview> is an offer to the 49ers and it is theirs to accept or reject.) The 49ers have considered the offer and it would seem they are about to overwhelmingly reject it. The 49ers believe that rejection is an alternative that is reasonably likely to lead to a better outcome; an outcome that treats the 49ers more fairly. We need debate no further. The 49ers are a large diverse group, well versed in the legal process and strategy and well motivated to make a sound decision.
If, as looks very likely, the 49ers reject the offer, there is no alternative to a NO vote to allow the legal cases to proceed. In the context of all that has happened and all that inevitably waits for us in the future, this is one of the more simple decisions we have been faced with.