The Work

January 19, 2011 12:35 PM

Weil, Dewey, Covington Take Roles in Collusion Case Pitting Players Against NFL

Posted by Brian Baxter

[UPDATE: 1/19/11, 7:30 p.m. NFL commissioner Roger Goodell and NFLPA executive director DeMaurice Smith spoke face-to-face in New York on Wednesday, according to The Associated Press.]

Three Am Law 100 firms with experience in the National Football League's labor wars got the call for a collusion case recently filed with a special master by the NFL players union, which aims to get the upper hand in collective bargaining negotiations.

NFL general counsel Jeffrey Pash, a former Covington & Burling partner, told reporters at an owners meeting in Atlanta on Tuesday that the NFLPA had filed the action with special master Stephen Burbank, a University of Pennsylvania Law School professor. A federal appeals court appointed Burbank in 2002 to mediate disputes between the league and union under a consent decree connected to the current collective bargaining agreement, which expires after Super Bowl XLV in Dallas on February 6.

The union is being represented in its latest filing by Dewey & LeBoeuf global litigation chair Jeffrey Kessler and Weil, Gotshal & Manges global litigation cochair James Quinn. The two are longtime legal advisers to the NFLPA (Kessler served as Quinn's protégé at Weil before leaving for Dewey predecessor firm Dewey Ballantine in 2003).

The filing, which is not yet public, essentially accuses NFL owners of acting together to deprive players of their collectively bargained rights. Michael McCann, a sports law professor at Vermont Law School and contributor to the Sports Law Blog, sheds some light on the case in this column for McCann writes that the NFLPA's lawyers could have trouble substantiating the union's claims.

The collusion claim is the second major piece of litigation filed by the union in recent months. Last June, we spoke with Kessler about a complaint the NFLPA filed with Burbank over the league's billion-dollar television contracts.

The union's lawyers--led by Kessler and attorneys from Latham & Watkins, the firm at which current NFLPA executive director DeMaurice Smith once worked--claim that those contracts guarantee the NFL $4 billion in revenue even if players are locked out by owners after the existing collective bargaining agreement expires. (Burbank is expected to rule on that case later this month.)

Representing the NFL in both the TV dispute and the collusion complaint filed before Burbank is Covington litigation chair Gregg Levy. Covington has enjoyed a longtime relationship with the league--former NFL commissioner Paul Tagliabue currently serves as senior of counsel with the firm--and Levy has handled its thornier pieces of litigation, such as arguments before the U.S. Supreme Court in the American Needle case.

As we've previously reported here several times over the past several years, veteran Proskauer Rose labor and sports law partner L. Robert Batterman is advising the NFL on the labor and employment aspects of its negotiations with the players.

Batterman--whose family ties to New Orleans no doubt have him smarting from the Saints' early playoff exit this year--has been making the media rounds lately. He told The Washington Post last week that the union wants a lockout. Batterman used other interviews as an opportunity to forcefully deny claims that he's a union buster--a reputation that stems from his time advising the National Hockey League during a work stoppage that canceled the league's entire 2004-05 season.

"I am finishing my forty-fifth year with my law firm as a labor lawyer," Batterman told The Associated Press. "I have been the primary negotiator, which I am not here--here I am counsel to the negotiators--I have been the primary negotiator, the chief spokesman, in hundreds, and I can't even tell you how many hundreds, of collective bargaining agreements over those 45 years.... Of those many hundreds, I have had literally a handful of strikes, and as best I can determine, two or three lockouts. All of the rest have been successfully and quietly negotiated peacefully. I am successful at what I do because I am a dealmaker, not a lockout artist. I make a very good living, and I am very successful, because I avoid problems. I don't create confrontations."

NFLPA general counsel Richard Berthelsen, profiled by sibling publication Corporate Counsel two years ago, has called Batterman's suggestion that the union wants a lockout as something "coming from outer space."

Batterman and Jacksonville Jaguars running back Maurice Jones-Drew are appearing on ProFootballTalk Live today to give each of their sides in the labor dispute.

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