The Work

February 4, 2010 7:05 PM

Talkin' Labor Negotiations with De Smith and Partying with Willie Gary

Posted by Brian Baxter

Only in Miami in the prelude to Super Bowl XLIV could a well-known sports talk radio host swap antitrust and labor tales with a former Patton Boggs partner, while a famous plaintiffs lawyer cohosts a "Party Under the Stars" extravaganza with the so-called hardest working man in radio.

So whether you're a fan of the Indianapolis Colts or New Orleans Saints, let's just get on to this Super Bowl-centric legal roundup.

The NFL Labor War Drums Beat Louder


When we last caught up with former Patton Boggs partner DeMaurice Smith (pictured right) in August, the current executive director of the NFL Players Association spoke about the union's upcoming battle with the NFL over a new collective bargaining agreement.

Smith hasn't stopped making the rounds since. On Wednesday he stopped by radio row in Miami to chat with WFAN's Mike Francesa. While Smith didn't mention L. Robert Batterman by name, right off the bat he hinted that the NFL's decision to hire the Proskauer Rose labor partner was evidence of the league's determination to take a hard line in negotiations. (Click here for the full interview.)

By painting Batterman as the league's legal boogeyman, Smith can try and steel his rank-and-file for the turmoil that will likely ensue before its contract with the league expires in March 2011. The union's outside counsel scored a victory earlier this week when a special master prevented the NFL from dismantling a revenue sharing pool in excess of $200 million.

Smith told Francesa that he thought "we owe it to the country" to get a labor deal with management in the next few weeks. Given the fact that sources tell us the roughly 12 negotiating sessions held between league and union representatives and their lawyers in recent months have yielded little to no movement on either side, that seems a stretch. (Smith, who wasn't immediately available for comment, held a press conference on Thursday calling a lockout likely in 2011.)

The fuss over Proskauer's Batterman, who has family in New Orleans and we're guessing is wearing a 'Who Dat?' T-shirt as we write this (clearly the league's IP counsel have softened their tough stance), is playing out elsewhere.

"Batterman is a menacing figure in the world of sports labor negotiations," wrote one columnist from Indianapolis. "The owners' decision to hire Batterman, a partner in the powerful New York law firm Proskauer Rose, as outside counsel is a clear warning that owners are ready to wage a long, hard war with the players."


Having spoken with Batterman (pictured left) before, we can attest he's not nearly the 'Angel of Death'-type figure he's being portrayed as by some in the sports media. The fact remains that the lawyers in this dispute won't be making the final decision to compromise, it will be up to the players or owners themselves to find their middle ground on revenue distribution. But Batterman, who advised the NHL when it locked out its players and canceled its 2004-05 season, does mean business.

When we first reported on the Batterman hire two years ago, the NFLPA's outside lawyers at Dewey & LeBoeuf and Weil, Gotshal & Manges recognized what his retention meant for future labor talks. "[Owners] have this bizarre notion that they want to get tough, so they go get Bob Batterman," Weil litigation cochair James Quinn told us at the time. (Quinn is cocounsel to the union along with Dewey global litigation chair Jeffrey Kessler, a former protégé of Quinn's at Weil.)

Smith took his saber rattling to the radio.

"When you argue in front of the Supreme Court that you want to be above the antitrust laws, and you and I both know that the only reason players in the [NFL] have free agency is because [the league] was successfully sued under a violation of those antitrust laws, I understand it perfectly," Smith told Francesa. "When you hire a guy in 2007 who locked out the hockey players, I understand it. When you negotiate TV deals to get the money, even if the games aren't played...I get it. My hope is that our fans get it."

The media-savvy Smith has other options in his playbook. According to several news reports, the NFLPA doubled its annual lobbying bill last year to $200,000, while the league topped out at $1.3 million. Smith has hired Patton Boggs partners Jonathan Yarowsky and Kristin Wells to lead the union's lobbying efforts on Capitol Hill. Both lawyers previously worked for the House Judiciary Committee, which could become a venue for any future hearings related to the ongoing labor stalemate. (Smith has also raided his former firm for talent to bolster the NFLPA's in-house staff.)

A House Judiciary subcommittee held a hearing last month on the controversial American Needle case in which Smith and several players testified that the NFL should not have antitrust immunity. Prior to the hearings, Smith and the union continued what seems to be a strategy of capitalizing on the popularity of certain players: Saints quarterback Drew Brees, whose mother was a judge, penned this op-ed for The Washington Post on the American Needle case.

Testifying for the league were NFL general counsel Gary Gertzog, a former partner at now-defunct Townley & Updike, and NHL deputy commissioner William Daly, a Skadden, Arps, Slate, Meagher & Flom alum.

The subcommittee hearing concluded with Rep. Sheila Jackson Lee, a Democrat from Texas, invoking Rodney King's famous line, "Can't we all just get along?"

With so many big egos involved, both legal and nonlegal, not likely. But the two groups will meet again at 9:30 on Saturday morning in Miami to try and hash out their differences.

As Smith tries to hit the league in the media and before Congress, and Batterman tries to strong-arm his adversary over a contract on a conference room table, it will be interesting to see which lawyer finds his footing and wins the turf war.

Big Boys and Their Toys

While we're on the subject of big egos, it seems fitting to mention a little shindig taking place Thursday night in Miami. Famed plaintiffs lawyer Willie Gary will be on hand for what will no doubt be a star-studded gala cohosted by radio host Tom Joyner.


According to the invite (pictured right), which sadly our editors wouldn't allow us to accept, "the event will bring together a who's who of celebrities, athletes, corporate executives, and media in town for the Super Bowl."

Among those bigwigs will be Gary, a founder of Stuart, Fla.-based Gary, Williams, Finney, Lewis, Watson & Sperando, and the subject of this superb New Yorker profile by Jonathan Harr. Few would disagree that Gary's one of the bigger personalities of the plaintiffs' bar.

From the looks of the invitation, it appears that Gary's jet the Wings of Justice II will also be on hand, as a company called Opa-Locka Flightline is sponsoring the event. As for the fleet of sports cars, Gary's certainly had more than enough big courtroom victories to own them too.

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