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February 2, 2009 6:47 AM

The Super Bowl XLIII Chronicles: A John Facenda-Voiced Look at Sports and the Law

Posted by Brian Baxter

First of all, congratulations to fans of the Pittsburgh Steelers. While we thought the end result seemed to be a a bit of a foregone conclusion by the time The Boss tore it up at halftime, the second half exceeded our expectations, making for an enjoyable Super Bowl Sunday for The Am Law Daily (and some Buchanan Ingersoll & Rooney lawyers as well).

One reason we usually enjoy the big game: It always makes us think of John Facenda, the former NFL Films narrator whose "Voice of God" descriptions helped embed so many big Super Bowl moments in the minds of generations of football fans.

The late Philadelphia broadcaster's estate has been locked in a long-running legal dispute with NFL Films about the latter's use of Facenda's signature sound in an infomercial for the 2006 incarnation of the Madden NFL video game. It turns out Facenda had a contract with the NFL that explicitly prohibits his booming voice from being used in endorsement deals. Paul Lauricella of The Beasley Firm in Philadelphia now represents Facenda's family as it seeks at least $150,000 in damages from the league for, the family says, violating that contract.

Debevoise & Plimpton IP litigation chair Bruce Keller represents the league's production arm, which has already suffered setbacks at the federal district court and appellate level. (Among their many arguments, Keller and NFL Films claimed that the infomercial was actually a documentary about the making of the video game and therefore shouldn’t be considered commercial speech.)

With the case seemingly headed for trial, we did a little docket-digging and discovered signs of both sides emerging from the trenches. According to recent filings with the U.S. district court in Philadelphia, the case currently is in civil suspense to allow both parties to pursue mediation efforts.

Now if only that attitude extended to collective bargaining negotiations...

INSIDE THE NFLPA LEADERSHIP FRAY

Labor battles in professional sports often provide grist for The Am Law Daily mill.

Unfortunately for the NFL Players Association, the sudden death of its longtime executive director Gene Upshaw in August came at an inopportune time, with the current collective bargaining agreement set to  expire next year and negotiations for a new deal looming.

Our colleague David Hechler at sibling publication Corporate Counsel has an excellent story on the man tasked with running the union in the interim while it searches for Upshaw’s successor--longtime NFLPA general counsel Richard Berthelsen.

But neither Berthelsen’s brief reign nor the search for new leadership has been smooth.

In November, a group of retired players represented by Ronald Katz of Manatt, Phelps & Phillips won a $28.1 million compensatory and punitive damages verdict in California against the NFLPA in a dispute over licensing fees. The union was represented by its longtime outside counsel Jeffrey Kessler, head of the sports and litigation practice at Dewey & LeBoeuf. (The case was recently featured on an episode of HBO’s Real Sports with Bryant Gumbel.)

The league is also turning up the heat on the labor front. While Kessler and Weil, Gotshal & Manges litigation cochair James Quinn form a formidable outside counsel roster for the NFLPA, the league has lawyered up as well, hiring Proskauer Rose's L. Robert Batterman to pair with Covington & Burling litigation cochair Gregg Levy. Batterman has a fierce reputation that comes from having helped crush the NHL Players' Association three years ago during its unsuccessful labor battle with ownership.

With NFL owners hardening their labor stance and league commissioner Roger Goodell recently criticizing a union report on NFL revenues, sports columnists like The New York Times's William Rhoden have noted that the union appears rudderless at a critical juncture and questioned the process for selecting Upshaw’s replacement.

One of the only major pro sports unions to have historically gone without a lawyer in the position of its chief executive, the NFLPA recently whittled its list of leadership candidates to five, eliminating sports lawyer Wm. David Cornwell of Atlanta's DNK Cornwell from contention.

Kegley070125Smith013 Still in the running is Patton Boggs partner DeMaurice Smith, chair of the firm's government investigations and white-collar practice group. Smith, pictured right, spent a decade as an assistant U.S. attorney for the District of Columbia, eventually rising to become counsel to then-deputy attorney general Eric Holder, Jr., during the Clinton administration.

So what inspired Smith to throw his hat into the ring for the NFLPA's top post? We'll have to wait and see as Smith declined our interview request; hardly something we can blame him for given the increasing contentiousness of the selection process. By the time the union gathers for its annual meeting in March, the list will have been cut to three finalists, with the frontrunners at the moment being Smith and former players Trace Armstrong and Troy Vincent.

And it's Vincent who Rhoden reports appears to be the "clean house" candidate and who may have contacted the U.S. Department of Labor with concerns about the selection process.

"Without going too much deeper into this morass," Rhoden writes, "you have to wonder if the players association's hierarchy is for the active players, the retired players, or self-interest."

Dislodging the status quo is always difficult. Rhoden cites union financial statements that show Berthelsen, the union’s longtime GC and acting executive director, earning $628,461 between March 1, 2007, and February 29, 2008. Dewey & LeBoeuf took in $4,785,891 during that time.

For his part, the 64-year-old Berthelsen told Corporate Counsel's Hechler that he plans to retire soon, and law firms profiting from labor work isn’t anything new, so if anything, this all seems to be a lot of posturing and turf-guarding against what change might bring.

But maybe it's more. The sloppy selection process, the backbiting and politicking, the unrest amongst the rank and file, it all sounds a little too NHLPA-esque circa 2004-05. That's got to make the likes of Batterman, Levy, and other NFL bigwigs smile. Stay tuned.

ALL IN THE FAMILY

In a week that brought us more legal news from NFL players whose star has fallen or those that have passed on, it was heartening to see the next generation preparing for the annual NFL draft.

Deciding whether or not to go pro, however, can be arduous. It's only made more difficult when your coach publicly second-guesses your ultimate choice on your way out the door. Maybe all that drama helps explain why star USC quarterback Mark Sanchez also had trouble choosing an agent. (Hat Tip: The Orange County Register's USC Blog.)

Initial reports had Sanchez--expected to be a first round pick in this year's draft--going with David Dunn of Newport Beach, Calif.-based Athletes First. Dunn represents a bevy of high-profile sports clients, among them former USC quarter Carson Palmer, now of the Cincinnati Bengals.

The Los Angeles Times then reported that Sanchez has signed up with his brother Nick Sanchez, Jr., himself a former quarterback at Yale before going on to get his J.D. from USC. Today, Nick is a business litigation associate with Theodora Oringher Miller & Richman in nearby Costa Mesa.

When last we checked in on that firm it was one of three collecting $7.5 million in fees from the Los Angeles Angels of Anaheim after helping the franchise win a four-year, name change litigation battle with the City of Anaheim. According to a bio on Theodora Oringher’s Web site, Nick Sanchez, Jr., was part of the firm's trial team in that case.

While some sports agents caution against players hiring relatives (insert agent-related joke here), it turns out that Mark Sanchez isn't one to heed those warnings. Though when it comes to handling his business affairs, Sanchez isn't going to keep it all in the family. Nick, who's trying to build up a sports consultancy practice at Theodora Oringher, will act as his agent; Dunn will serve as an adviser.

It may sound complicated, but as long as Sanchez stays away from Master P's ill-fated No Limit Sports agency--the one that negotiated Ricky Williams’s comically bad rookie contract--we think he'll be just fine.

WINSTEAD PARTNER PENS SECOND BASEBALL BOOK

Finally, with only a few weeks to go until pitchers and catchers report, we’d be remiss if we didn't toss some baseball-related legal news your way. But we'll steer clear of Barry Bonds's alleged anabolic adventures and Roger Clemens's purported penchant for lotion on the loins, so we can end this column on a wholesome note.

Baseball and the Baby Boomer, the second baseball history book published by Winstead litigation partner Talmage Boston in Dallas, was due to hit bookstore shelves on Super Bowl Sunday. Boston's book covers the era from the 1940s through the George Mitchell/DLA Piper report, and contains stories about such iconic players as Jackie Robinson, Mickey Mantle, Carl Yastrzemski, Nolan Ryan, as well as about late commissioner Bart Giamatti.

Thumbnail Boston, pictured left, is no novice author. In 2005 he wrote 1939: Baseball's Tipping Point, which was praised by the likes of John Grisham (who encouraged Boston to give up the law in favor of writing) and baseball commentators like Tim Kurkjian and Rob Neyer.

Naturally, Boston's favorite team--they do share a name--is the Red Sox. He first fell in love with baseball as a young boy, growing so strong that his mother sought to get him interested in the U.S. presidents in order to redirect his passion. Mom's efforts worked--to a degree: They're what eventually led Boston to develop an interest in the legal profession. (Click here for a Q&A that Boston gave JD Bliss after his first book was published.)

All that aside, we have to note what a great baseball name "Tal Boston" really is. As our colleague Ross Todd points out, it sounds like the moniker of a mythical middle infielder for, say, the Cincinnati Red Stockings in the late 1800s, the kind of scrappy fellow who batted .410 and stole 80 bases, which would have been par for the course in those days.

So Tal's got that going for him.

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