The Work

July 23, 2011 12:30 AM

The Score: Pro Sports Lockout Legal Carousel Continues

Posted by Brian Baxter

UPDATE: 7/24/11, 7:30 a.m. EDT. Multiple media outlets are reporting that the executive committee representing NFL players is tentatively scheduled to meet Monday with an eye toward ratifying the agreement approved by the league's owners Thursday. The pact is expected to then go to a full players' vote beginning as early as Wednesday.

The National Football League's five-month-long labor lockout continued Friday, with player representatives telling the rank and file to "stay put" this weekend while the latest ownership proposal is evaluated.

What those bargaining on behalf of the league's 1,900 players--who decertified their union earlier this year to pursue an antitrust case against the league--are weighing a ten-year labor and revenue-sharing agreement approved by a 31-to-0 owners' vote on Thursday.

Though player representatives had been expected to vote via conference call on the owner's plan, multiple media reports suggested that some on the players' side were hesistant to do so because they suspected management of trying to slip through certain contentious contract provisions unilaterally. (Click here for a 25-page summary of the owners' proposed labor agreement, courtesy of

As The Am Law Daily has previously reported, Proskauer Rose labor and management relations partner L. Robert Batterman and Covington & Burling litigation partner Gregg Levy are representing owners and NFL management. The players union, headed by former Patton Boggs and Latham & Watkins partner DeMaurice Smith, is being advised by its longtime outside counsel, Dewey & LeBoeuf global litigation chair Jeffrey Kessler and Weil, Gotshal & Manges litigation cochair James Quinn.

All of those lawyers either declined to comment or did not respond to requests for comment when contacted Friday.

Among the matters both sides are reportedly discussing: a "global settlement" that would resolve not just the labor impasse, but also the antitrust case, and a "lockout insurance" suit filed by players against the league. Players would also have to vote to recertify their union. The union's former general counsel, Richard Berthelsen, has warned players that rushing through so much so quickly might ultimately put any recertification at risk of violating federal labor laws.

Retired NFL players represented by Hausfeld have also had a seat at the bargaining table to resolve some of their grievances--and might also be covered by a global settlement. A group of 75 former players filed suit this week against the league over its alleged mishandling of the treatment of concussions. Los Angeles plaintiffs shop Girardi Keese--counsel to a San Francisco Giants fan brutally beaten at a Dodgers game earlier this year--is the lead firm representing retired players.

NBA Lockout Has Overseas Implications

As previously reported here, Dewey and Proskauer are also advising separate sides in the National Basketball's nearly month-old shutdown.

Locked-out players did get a small financial boost this week when the NBA confirmed that it must pay the union $37 million in connection with marketing agreements that are unconnected to the league's expired collective bargaining agreement.

Negotiations between management and players, meawhile, are on hiatus. NBA executives recently met in New York with their counterparts from the International Basketball Federation ( FIBA). The two sides reportedly discussed the NBA lockout's impact on the world game, and the delicate subject of NBA players seeking to play in international leagues should talks remain stalled. (At issue: the validity of NBA contracts and insurance for players in case of injury.)

FIBA's communications department did not immediately respond to a request for comment on whether the organization had hired outside counsel on the matter Friday. FIBA's secretary general, Patrick Baumann, is a former in-house lawyer for the Swiss Bank Corporation. Dirk-Reiner Martens of Munich's Martens Rechtsanwälte, chief external counsel for basketball's worldwide governing body, confirmed via e-mail that he is advising FIBA in the matter.

More than a decade ago, a federal court in Houston denied an attempt by three NBA players--Marcus Camby, Reggie Slater, and Nick Evan Exel--to break their contracts so they could play overseas during the league's last labor lockout. The case could have ramifications for current players seeking to take their talents abroad.

Fulbright & Jaworski partner Daniel McClure represented the players in the suit, which ended when U.S. district court judge Sim Lake III concluded the two-week long case by denying the players' request for an injunction voiding their NBA contracts and ordering the case to arbitration. (Click here for Lake's order of dismissal and here for his findings of fact.) In the end, the lockout was resolved and an arbitrator never ruled on the matter.

Susman Godfrey partner Vineet Bhatia, who represented USA Basketball, the country's governing body for the sport in the suit, told us he couldn't remember all the details about the case, but said Lake issued an unpublished opinion ruling against the players.

As noted by ESPN's Grantland this week, the suit filed by Camby, Slater, and Van Exel differs from the current labor situation in that current NBA players today are not actively seeking to void their contracts with teams stateside. Instead, many agents for locked-out NBA players are negotiating escape clauses in contracts with foreign franchises that will allow their clients to return to their NBA teams if the NBA should return to action.

Star point guard Deron Williams was the first big name NBA player to head overseas, announcing this week a one-year, $5 million contract with Turkish club Besiktas. (The team has reportedly put its courtship of Kobe Bryant on hold.)

Not all NBA players are headed overseas. Ben Wallace of the Detroit Pistons—a rugged defender and rebounder and one-time participant in the infamous Malice at the Palace—is considering enrolling in law school, according to The Detroit News.

More Bad Times for the NCAA

The NCAA has generated plenty of negative headlines lately. This week Southeastern Athletic Conference commissioner Mike Slive, a former partner at Chicago's Ungaretti & Harris, proposed a series of reforms that might help college sports regain "the benefit of the doubt."

Slive's proposed reforms--summarized here--address issues related to financial aid for athletes, collegiate eligibility, recruiting, and the enforcement process. But even as Slive was suggesting steps to clean up college athletics, the series of embarrassing NCAA–related reports continued.

Auburn head football coach Gene Chizik, for instance, found himself on the defensive this week, denying reports that he had a testy exchange with NCAA enforcement director Julie Roe Lach. The school's football program has been probed for possible rules violations affecting several former players. Chizik himself has signed a new contract with Auburn that calls for him to draw his salary even if a formal investigation is commenced. J. Russ Campbell, a partner at Balch & Bingham in Birmingham, is representing Chizik.

Also coming under scrutiny this week: former Georgia Tech general counsel Randy Nordin, criticized in an NCAA report for adopting "an obstructionist approach" to an investigation into improper benefits allegedly offered to the school's football players, according to sibling publication the Daily Report in Atlanta. The NCAA stripped Georgia Tech of its 2009 ACC championship last week and fined the school $100,000.

Another Georgia college football personality, former University of Georgia head coach and ESPN commentator Jim Donnan, was accused this week of making millions from a Ponzi scheme broken up by federal investigators. 

Around the Horn

-- Late Friday, a bankruptcy judge in Delaware rejected a $150 million financing plan that the Los Angeles Dodgers had proposed to complete with hedge fund Highbridge Capital, an affiliate of JPMorgan Chase. Instead, the judge ordered the team to pursue a loan with Major League Baseball. The ruling means that lawyers for the Dodgers--led by Dewey--had failed to convince the court that a deal with MLB would be a "deal with the devil," as The Am Law Daily reported earlier this week. Dewey bankruptcy partner Bruce Bennett, who joined the firm in February, issued this statement on the court's decision.

-- The summer associate class at Williams & Connolly has a little more star power than usual this year. Above the Law reports that James Gillenwater, a former captain of the U.S. national rugby team and current third-year at Duke Law School, is working at the firm in Washington, D.C. (Click here for some of Gillenwater's exploits on the pitch.)

-- A week after Washington Redskins general counsel David Donovan announced his intention to leave the team to return to Wilmer Cutler Pickering Hale and Dorr, the team and its controversial owner, Daniel Snyder, have been given an August 1 deadline to respond to a motion to dismiss a defamation suit filed by the team against The Washington City Paper over a story it published about Snyder. (The ACLU filed an amicus brief in the case, which happens to reference Harry Potter, this week.)

-- Pittsburgh Steelers running back Rashard Mendenhall isn't taking his firing by sports apparel maker Champion earlier this year over comments made about the death of Osama bin Laden lying down. The football star sued Champion this week in federal court in Greensboro, N.C., seeking more than $1 million in damages in connection with his termination. Steven Thompson of Ungaretti & Harris and David Sar of North Carolina firm Brooks, Pierce, McLendon, Humphrey & Leonard are representing Mendenhall in the suit.

-- Another top NFL running back, Cedric Benson, has turned to a well-known sports attorney to help him navigate assault allegations. W. David Cornwell of Atlanta's DNK Cornwell, who we've spoken to in the past about his rather unique practice, is representing Benson, along with Samuel Bassett of Austin's Minton, Burton, Foster & Collins. Bassett, like Benson, is a University of Texas grad.

-- An opinion by the U.S. Court of Appeals for the Fifth Circuit in a lawsuit filed by a former cheerleader had some harsh words for the bad spelling and grammatical mistakes by lawyers from Littler Mendelson, according to Fox 4 News in Dallas-Forth Worth. (Click here for the opinion, courtesy of ABA Journal.)

-- ABC Sports is reportedly upset with Republican presidential candidate Tim Pawlenty's use of footage from the Miracle on Ice, which the network owns, for political ads running on Iowa television. Pawlenty's campaign claims it vetted the ads and is in the clear because of fair use; ABC disagrees. 

-- Lance Armstrong's lawyers lashed out again this week against alleged government leaks besmirching their client's reputation. The seven-time Tour de France winner's legal team--led by Keker & Van Nest and Sheppard Mullin Richter & Hampton--filed a complaint in U.S. district court in Los Angeles asking a federal judge to investigate leaks of secret grand jury proceedings involving their star cycling client that have found their way into media reports.

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