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May 21, 2008 11:11 AM

Proskauer's Bob Batterman Signals a Labor War in the NFL

Posted by Brian Baxter

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UPDATE: NFL owners voted unanimously yesterday to opt out of their collective bargaining agreement with the players union. As will be reported in the next issue of The American Lawyer, the lawyers behind the league are preparing for battle as well.

Before the start of another National Football League season, the fields are green, the players healthy, and playoff hopes high. But beneath that veneer, a labor war may be brewing. Team owners are reported to be considering opting out of the current collective bargaining agreement with the players union.

The possibility became more distinct when the league hired L. Robert Batterman of Proskauer Rose. Batterman is well known in labor circles for his National Hockey League work. It was Batterman who presided over the NHL labor negotiations that scuttled the league's 2004-05 season, making it the first North American pro sports league to lose a full year to labor strife.

"Batterman bullied [the union] into submission," says one sports labor lawyer who requested anonymity. "If one accepts the conspiracy theory of collective bargaining, this means the NFL must be looking for trouble," says another.

The sticking point in NFL labor talks is the salary cap, which entitles players to 60 percent of league revenues and requires revenue sharing among the teams. But if owners opt out of the current deal, the cap will expire in 2010, and former NFL mainstays like Lamar Hunt and Wellington Mara have died and been replaced by a new generation of owners. The new owners, who don't feel quite so generous toward the players and aren't as keen on sharing revenues with smaller markets, have until November of this year to opt out.

No official negotiations have been held. But the hiring of Batterman sent a clear signal to the union. Gene Upshaw, president of the NFL Players Association, told SportsBusiness Journal in April that his "concerns were heightened" when he heard Batterman had been retained, noting that NHL players crumbled before Batterman's hard line.

The NFLPA's outside counsel, James Quinn of Weil, Gotshal & Manges, says that owners "have this bizarre notion that they want to get tough, so they go get Bob Batterman." (Jeffrey Kessler of Dewey & LeBoeuf is also counsel to the NFLPA.)

The league's long-time outside counsel is Gregg Levy, cochair of Covington & Burling's litigation group. Levy, the NFL, and Batterman all declined to talk about the hiring.

But whatever the reason the NFL decided to go shopping for a new lawyer, Batterman was an obvious choice. In addition to his NFL and NHL representations, Batterman also advises Major League Soccer, helping the fledgling league negotiate its first collective bargaining agreement several years ago.

"There are very few management labor lawyers who have experience in pro sports," says one sports labor lawyer. "If you're searching for someone, there are a few logical places to look."

Some of the unions Batterman's opposed might disagree--the NHL Players' Association declined to comment--but the 66-year-old Batterman, with close-cropped salt-and-pepper hair and a silvery beard, doesn't exactly fit the mold of a union buster.

"I've always found [Batterman] to be honest and straightforward," says Brent Garren, senior associate general counsel at Unite Here, a labor union representing workers in several industries.

But while the NHL players are all too familiar with Batterman's expertise, don't expect the NFLPA to suffer a similar fate, says Quinn of Weil, Gotshal.

"Everyone knows what the issues are," he says. "We're not going to blink."

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