January 22, 2012 2:30 PM
The Score: NCAA, Under Fire, Sees Lawyers Switch Firms
Posted by Brian Baxter
From sex abuse scandals at two high-profile schools to boosters-turned-Ponzi-schemers to a federal investigation into a major bowl game, the National Collegiate Athletic Association and its member institutions have had to contend with a rash of legal issues in recent months.
Adding to the NCAA's legal woes: a class action suit filed in 2009 by former UCLA basketball star Ed O’Bannon claiming the governing body of big-time college sports violated antitrust laws by allowing media and video game companies to use player likenesses without compensating former players.
The suit survived summary judgment motions in early 2010 and was then consolidated with a similar case filed by former college football quarterback Sam Keller against the NCAA and video game publisher Electronic Arts.
While a battery of high-profile plaintiffs firms led by Hausfeld and Hagens Berman Sobol Shapiro are backing the former players, the NCAA has turned to longtime outside counsel Miller, Canfield, Paddock and Stone for representation in the case, which has garnered mention in the pages of The Atlantic and The New York Times Magazine.
Now the NCAA's legal team is on the move. Schiff Hardin announced this week that it would open an office in Ann Arbor, Michigan, with a team of four former Miller Canfield partners led by noted antitrust and sports litigator Gregory Curtner, a former Am Law Litigator of the Week.
Joining Curtner, who will work out of Schiff Hardin's offices in Ann Arbor and New York, are antitrust litigation partners Frederick Juckniess, Kimberly Kefalas, and Robert Wierenga. Curtner, who was not immediately available for comment on Friday, confirmed through a Schiff Hardin spokeswoman that he was taking the defense in the O'Bannon/Keller case with him from Miller Canfield. Court filings on Friday show that Schiff Hardin is now representing the NCAA in the litigation.
Curtner and the NCAA got a bit of good news this week when U.S. magistrate judge Nathanael Cousins in Oakland ruled that the NCAA has no control over its member institutions, thus denying a plaintiffs' motion to compel responses to document and interrogatory requests by various universities.
Hausfeld founding partner Michael Hausfeld told The Am Law Daily on Friday afternoon that Cousins's decision was limited in its scope. On Friday, Cousins granted a plaintiffs' motion to compel the deposition of NCAA president Mark Emmert. (Plaintiffs have also been seeking copies of television contracts between broadcasters, including ESPN, and top collegiate conferences such as the SEC as part of the discovery process unfolding across the country.)
Hausfeld, who says he doesn’t expect the move by Curtner and his team to affect the case, adds that he is subpoenaing schools and collegiate conferences individually to show how they're using plaintiffs' likenesses to enrich themselves at the expense of ex-players.
Besides Hausfeld and Hagens Berman, more than 30 plaintiffs firms across the country, as well as Am Law 100 shops including Boies, Schiller & Flexner, are representing various parties in the consolidated suits against the NCAA, according to court records.
Lawyers from Keker & Van Nest and Latham & Watkins, meanwhile, are representing Electronic Arts in the suit. Former Latham litigation partner Donald Remy was hired by the NCAA as its new general counsel a year ago this month.
Hausfeld says that according to a recent briefing schedule, the case could go to trial sometime in the summer or early fall of 2013.
Penn State Probe Continues, GC Resigns
A little more than two months after his handling of an adolescent sex abuse scandal involving a former assistant coach cost him his job, longtime Penn State University football coach Joe Paterno died Sunday at 85. Paterno's death came even as the investigation into the scandal being led by former FBI director Louis Freeh of Freeh Sporkin & Sullivan continues. (The Am Law Daily reported last year that the school had also retained Reed Smith to help it manage the fallout from the crisis.)
This past week's major developments saw members of the school's board of trustees—including Fox Rothschild partner Stephane Deviney and former Drinker Biddle & Reath partner and current Merck CEO Kenneth Frazier—sit down with two reporters from The New York Times to discuss the circumstances surrounding the November firing of Paterno and former university president Graham Spanier.
The lengthy article, which quotes both Frazier and Deviney, notes that Penn State's current president and board of trustees have turned to Lanny Davis as their external counsel and crisis management adviser. (Click here for a November 2010 American Lawyer profile of Davis, a confidant of former president Clinton who left McDermott Will & Emery in April 2010 to start his own shop.)
Some Penn State alums, such as Morgan, Lewis & Bockius business and finance partner Thomas Sharbaugh, are concerned about the school's reputation following the sex abuse charges unveiled last fall against former assistant football coach Jerry Sandusky and now want to become part of the university's governing panel, according to The Tribune-Democrat of Johnstown.
While the trustees were explaining to the Times how they were completely blindsided by the criminal complaint against Sandusky, some members of a faculty council at Penn State were expressing their displeasure with Freeh's internal investigation.
ESPN.com reports that several faculty members, who spoke on the condition of anonymity, are challenging Freeh's independence after the former federal judge allegedly told them earlier this month that he plans to present his findings to a special committee of the board of trustees before making them public.
The aggrieved faculty members claim that Freeh's report should immediately be made public to prevent any behind-the-scenes redactions or changes. Merck's Frazier—who served as the pharmaceutical giant's general counsel before becoming the company's CEO—chairs the special committee.
Penn State's own general counsel, Cynthia Baldwin, announced last week that she would resign. Baldwin became the university's first-ever in-house legal chief when she was hired in January 2010, and is moving on while the Sandusky scandal continues to ripple through Happy Valley, according to sibling publication Corporate Counsel.
Baldwin was heavily involved in the school's response to the state investigation into Sandusky's alleged crimes and Penn State's handling of them. She advised former Penn State administrators Tim Curley and Gary Schultz when they testified last year before a grand jury investigating the allegations against Sandusky. Both were later charged with perjury and failing to report the ex-coach's alleged illicit conduct to law enforcement officials.
Penn State said in a statement that Baldwin's departure was part of a transition plan in place long before the sex scandal broke last November. The school made no mention of the drama in its statement, but a spokeswoman told the Centre Daily Times that Baldwin’s decision to leave Penn State was unrelated to the Sandusky matter.
Executive search firm Witt/Kieffer is working with the university on coordinating a search to replace Baldwin, who before joining Penn State was a partner at Duane Morris.
The firm has other ties to the university. G. Scott Paterno, one of Joe Paterno's three sons, is an attorney in Harrisburg who once worked at Duane Morris. Scott Paterno lashed out last week at Penn State over his father's abrupt firing by telephone, a decision by school trustees that he says "was not handled well."
In a non–Penn State bit of news, Duane Morris hired a new special counsel in Philadelphia this week by picking up sports law professor Kenneth Shropshire, who currently teaches at the University of Pennsylvania.
Around the Horn
—Injured Atlanta Falcons linebacker Mike Peterson has become the latest NFL player to sue Greenberg Traurig, according to sibling publication the Daily Business Review. The firm has already been sued by Terrell Owens, Clinton Portis, and Roscoe Parrish and Duane Starks over advice related to a failed Alabama casino deal. Now, Peterson is pressing his own claims for negligence and breach of fiduciary duty. Greenberg Traurig gave the following statement to the DBR: "While we counseled the players in separate matters, we did not represent them in this specific investment."
—Reigning National League MVP Ryan Braun of the Milwaukee Brewers has reportedly begun an appeal of his 50-game suspension for performance-enhancing drugs. One member of the three-person arbitration panel in New York who will hear the matter, as mandated by baseball's collective bargaining agreement with players, is Shyam Das. The Am Law Daily reported last year that Das was the highest-paid arbitrator used by the players union between 2006 and 2010, taking in roughly $161,127. (The league also pays arbitrators.) Braun has retained Wm. David Cornwell, Sr., of Atlanta’s DNK Cornwell to represent him.
—Another Cornwell client, Pittsburgh Steelers quarterback Ben Roethlisberger, has reached a settlement in a 2009 suit brought by a woman who accused him of raping her at a celebrity golf tournament in Lake Tahoe the year before. The Reno Gazette-Journal reports that after a dispute over jurisdiction was adjudicated by the Nevada Supreme Court last summer, the two sides moved toward a settlement. Financial terms of the agreement have not been disclosed, according to The Associated Press.
—Already facing a legal battle with the estate of a deceased fan, Los Angeles Lakers star Kobe Bryant will soon see half his $150 million in assets go to his wife, Vanessa, once the couple's divorce settlement is finalized. Vanessa Bryant, who did not sign a prenuptial agreement, has retained high-powered divorce lawyer Laura Wasser of Los Angeles's Wasser, Cooperman & Carter. As part of the $75 million settlement, Vanessa Bryant will receive three mansions, as well as future spousal and child support, according to the Los Angeles Times.
—The Am Law Daily has reported several times on K&L Gates's work representing longtime client World Wrestling Entertainment, from a dispute with the widow of a dead wrestler to a spat with an author named Irvin Muchnick over a book about another deceased performer. Now another writer, New York Post reporter Phil Mushnick (no relation to Muchnick), is attacking Republican presidential candidate Rick Santorum over his work for the WWE back in the 1980s while working as an associate at predecessor firm Kirkpatrick & Lockhart Nicholson Graham, which merged with Preston Gates & Ellis in 2006. Santorum's wife, Karen, also once worked at Kirkpatrick & Lockhart.
—The parent company of Rupert Murdoch's shuttered British tabloid The News of the World settled several phone-hacking suits this week, with several high-profile individuals receiving payments. One of those recipients is Graham Shear, a litigation partner with British firm Berwin Leighton Paisner, who represented star soccer player Ashley Cole on his own phone-hacking claims. Shear himself received a settlement worth nearly $39,000, according to U.K. publication Legal Week, which notes that Linklaters and Olswang took roles representing Murdoch’s newspaper group.
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