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September 12, 2008 5:22 PM

Hard Knocks Don't Faze Dewey & LeBoeuf's Jeff Kessler

Posted by Brian Baxter

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It's been a busy past few weeks for Jeffrey Kessler, cochairman of the global litigation and sports litigation departments at Dewey & LeBoeuf in New York.

As primary outside counsel to the National Football League Players Association (NFLPA)--a post he shares with James Quinn, the cochair of the litigation practice at Kessler's former firm Weil, Gotshal & Manges--Kessler has faced his fair share of challenges as a sports litigator. (Kessler once defended Latrell Sprewell after the former basketball star famously choked his coach.)

But the past few weeks would try even the most grizzled sports veteran.

When longtime union head Gene Upshaw unexpectedly passed away last month, Kessler heard his name tossed around as a potential replacement. At the time, he was just beginning the process of negotiating with the league over a new collective bargaining agreement (CBA).

For the record: The NFLPA has appointed its general counsel, Richard Berthelsen, as interim executive director after Upshaw's death, and Kessler insists he's not a candidate for the job. But in addition to getting CBA talks back on track, Kessler and the NFLPA are set to go to trial next month in a civil suit filed by several retired players. If all that weren't enough, CBS Interactive is now suing the NFLPA in federal court, claiming that it doesn't have to pay the union in order to use players' stats in fantasy football leagues.

The Am Law Daily caught up with Kessler to discuss litigating in the trenches.

How long did you know Gene?
I've known Gene well since November of 1989. That's when I was retained by the NFLPA, right after they had lost a decision in a case before the Eighth Circuit. And Gene and Dick Berthelsen came to see us [at Weil] to see if we could come up with a new legal strategy. That led to the decertification of the union and the filing of the Freeman McNeil antitrust case, which ultimately led to the free agency and salary cap system that the NFL put in place in 1993.

What about the rumors that you could be Gene's replacement?
While I am extremely flattered and very loyal to the NFLPA as a client--I really enjoy my role in helping them--that still is not a position that I would want to be considered for.

So you'd rather stick with the billables?
Well, I just like being a litigator. I like trying cases, and that's something that would be very difficult for me to give up for anything.

Like the Oscar Pistorius case?
Whatever they may be. I like doing trials and I've got a diverse practice, so I want to hang on to that and help the [NFL] players union as much as I can from the outside.

What's the status of the CBA negotiations at this point?
They're not on hiatus. We obviously have not met since [Gene passed away], and I don't know when we'll meet next. But the league has in fact terminated [the current] deal, so it will end at the end of the 2010 season. And there will be no salary cap in 2010, so there will probably be lots of negotiations between now and March of 2010 to see if an agreement can be reached before we get to the uncapped year. But when you get a totally unanticipated and tragic event, there's going to be a period of mourning where business is not the first item on the agenda.

Had there been negotiations prior to Gene's passing?
We had just started. We had maybe one meeting and were supposed to be getting together sometime in the early fall, so we'll see where that picks up. There's no specific date at this moment. (Outside counsel for the league in labor negotiations are Proskauer Rose's L. Robert Batterman and Covington & Burling's Gregg Levy.)

What's the process of electing a new executive director?
The union and the executive committee is formulating the process now and I think they'll be an announcement about that in the near future. Ultimately the decision on a [new] executive director has to be voted on by the majority of the player representatives from the 32 NFL teams.

Will there be a vetting process of prospective candidates by outside counsel?
It would not be by outside counsel but an expert search firm that would likely be involved in the vetting process. But nothing has been agreed upon yet.

I take it that would have to occur before new CBA negotiations with the NFL?
Yes. Right now the union business goes on with Dick Berthelsen providing a firm hand and being assisted by our excellent deputy executive director, Clark Gaines. They have an excellent staff, and we have our negotiating team, so it's up to us to carry on the work that Gene started.

So tell me about this trial that you're gearing up for.
There is a retired player class action that's been pending for some time and there'll be a trial starting on October 20 in San Francisco. We happen to think that the case has no merit and it's a great example of a phrase that my grandmother used to love, which is, "No good deed goes unpunished." Because the NFLPA and its licensing subsidiary is the only organization that has actually reached out to try and find licensing opportunities for retired players and was able to find some significant opportunities for certain groups of those players.

But for most of the retired players, the marketplace did not make offers. And as a reward for trying to generate that revenue we got this lawsuit, which basically claims there should be more money distributed to those retired players that the marketplace didn't want. I'm not sure how that's right or fair, but we'll defend ourselves before the jury like we always do. (Ronald Katz at Manatt, Phelps & Phillips and Lewis LeClair at McKool Smith are representing the player class.)

And now I see CBS Interactive is coming off the sidelines as well.
Yes, it's a case over fantasy football licensing rights. It's an IP issue about what rights are protectable for players' names and statistics. We have licensing rights for the active players and we license those rights to fantasy football companies. And CBS, a former licensee, is seeking a declaratory judgment [in federal district court in Minnesota] that the rights are not protectable. They also filed an antitrust count as well, so that'll be something else that we'll be defending against. (The NFLPA countersued on Thursday; Dorsey & Whitney's Michael Lindsey is representing CBS.)

Can you at least take time to enjoy some football?
It's not the work. The fact that Gene's not here makes the season a little bittersweet. It's wonderful that the players are wearing these patches to commemorate Gene. For me it's a painful reminder of loss. But I know Gene, above everything, would want the game and the union to go on. I can hearing his booming voice saying, "Get to work." So that's the best tribute we can have for Gene. Get to work and defend the interests of the players.

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