September 4, 2009 4:25 PM

The Bill Moran Chronicles: A (Semi) Regular Look at Sports and the Law

Posted by Brian Baxter

With the National Football League season set to kick off this week, The Am Law Daily is psyched about the playoff prospects for our hometown New York Giants.

Our one worry is the team's shaky receiving corps, which we were reminded of a few weeks ago when former star wideout Plaxico Burress pled guilty to a felony gun charge in return for a two-year prison sentence.

We caught up with McCarter & English litigation partner William Moran (pictured above) as he was returning from the Giants' annual Kickoff Luncheon to talk about his role representing the team in the Burress matter.

Moran tells us his firm has been long-time outside counsel to the Giants. (The team's co-owner, John Mara, once worked as a labor associate at now-defunct New York firm Shea & Gould. Moran also worked at the firm, but after Mara had left.)

As a former prosecutor whose practice includes crisis management, Moran was the ideal lawyer for the team to turn to when Burress accidentally shot himself in the right thigh in the early morning hours of November 29, 2008, at the Latin Quarter nightclub in Manhattan.

In the days after the incident, Moran coordinated with the New York Police Department and the Manhattan District Attorney's Office on behalf of Big Blue. He had several conversations early on with Burress's high-profile criminal defense lawyer Benjamin Brafman, but once the star receiver was released by the team in April 2009, contact with Brafman ended.

"I represented solely the interest of the Giants, who were very interested in cooperating with the police and D.A.," Moran says.

Moran worked more closely with Michael Bachner, a lawyer for Giants middle linebacker Antonio Pierce, who was at the club with Burress the night of the incident.

"The focus of the investigation had always been Burress, but there was always the issue of Pierce, which kind of faded into the background until the last couple of months when it became clear they were interested in prosecuting him as well," Moran says. "But [Pierce] ended up testifying in the grand jury and things worked out very well for him. 

Moran says he worked with Bachner to prepare Pierce for testimony before a grand jury. Under New York law, grand jury proceedings are run entirely by a prosecutor and defense lawyers are barred from participating. But Moran doesn't think it was a risky move.

"I'd say 99 percent of the time a D.A. wants an indictment, he's going to get it," Moran says. "But this case was that 1 percent that comes up where [Pierce] had a real got shot at getting out at the grand jury stage, and thankfully we were successful. The charges were so clear cut against Burress that there was no way in the world that he was going to avoid it."

Some say that Burress's sentence was too harsh. Does Moran?

"No. From what I understand he got the deal that the D.A. was offering before he testified in the grand jury," he says. "As a former prosecutor, I think that he got the appropriate deal."

Moran hopes the Giants won't need his legal talents in the foreseeable future, although his firm continues to advise the team on issues relating to its new stadium and other non-litigation matters.

"They're a good client to have," he says.

Another Shift Change at the NHLPA

When we interviewed new NFL Players Association executive director DeMaurice Smith a month ago, the Patton Boggs and Latham & Watkins alum informed us that he was the third former federal prosecutor leading the union of a major North American sports league.

Now make that two.

On Monday the NHL Players' Association shockingly fired Paul Kelly, a former assistant U.S. attorney and name partner at Boston's Kelly, Libby & Hoopes. Kelly was hired in October 2007 to replace Ted Saskin, who was fired for hacking into the e-mail accounts of players and union employees.

Saskin had only been in the job since July 2005, when long-time NHLPA executive director and general counsel Bob Goodenow was forced out after stalled negotiations on a collective bargaining agreement forced the cancellation of the NHL's 2004-05 season, a first for a North American pro sports league.

Kelly gave a lengthy Q&A with ESPN.com on Wednesday in which he admitted to being surprised and saddened by his abrupt termination. (ESPN's Scott Burnside had an excellent column this week detailing the messy machinations behind the dismissal.)

According to several media reports, the driving force behind Kelly's ouster appears to be former NHLPA ombudsman Eric Lindros, former Canadian Auto Workers president Basil "Buzz" Hargrove, and Canadian labor lawyer Ronald Pink from Halifax's Pink Larkin. Lindros quit last year over disagreements with Kelly and was replaced by Hargrove. Pink lost out to Kelly to replace Saskin, yet somehow ended up on the NHLPA's advisory board.

With negotiations for a new CBA in 2011 looming on the horizon, some former NHLPA executives have claimed Kelly was the victim of "paranoia" that he was too close to league executives. Either way, the union moved quickly to replace him, naming current general counsel Ian Penny as its new interim executive director.

Penny, whom sibling publication Corporate Counsel profiled in February 2008 after he was promoted to GC, didn't respond to a request for comment.

The NHL's primary outside labor counsel, Proskauer Rose's L. Robert Batterman, who pulled the union's sweater over its head and gave it a drubbing during the last labor fight, also did not respond to a request for comment.

Plaintiffs Look to Sack Madden Video Game Franchise

The Am Law Daily isn't afraid to admit that it's always been a fan of the wildly popular John Madden video game franchise. Just last week we picked up this year's edition for PS3.

But Madden manufacturer Electronic Arts received some bad news in August when it lost its motion to dismiss a class action filed by Hagens Berman Sobol Shapiro in June 2008. The class action complaint accuses the company of signing exclusive agreements with the NFL and NFLPA that "drove competition out of the market and prevented new competitors from entering."

Earlier this year the firm filed a similar suit against EA on behalf of former Nebraska quarterback Sam Keller, claiming that EA exploited college athletes' IP by including their likenesses in video games.

Latham antitrust chair Daniel Wall and litigation partner Timothy O'Mara are representing EA in the Madden litigation.

Around the Horn

-- In July, the SEC got itself stuffed in an insider trading case against outspoken Dallas Mavericks owner Mark Cuban when a federal district court judge tossed its complaint with prejudice. Now The Am Law Litigation Daily's Andrew Longstreth reports that Cuban is seeking to have the SEC foot the fees for his high-priced lawyers from Dewey & LeBoeuf. Alas, the Dewey lawyers don't disclose their fees in their motion.

-- The New York Law Journal has this interesting story on the case of a man injured at a minor league baseball game in Brooklyn by a bat that was somehow "propelled" by a player into the stands, fracturing the nose of a spectator-soon-to-be-turned-plaintiff. While baseball teams are not liable for injuries to fans caused by foul balls or broken bats under the doctrine of assumed risk, now New York's Supreme Court has held that the assumption rule extends even to a player "warming up" or "horsing around."

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