April 27, 2011 1:08 PM

When Worlds Collide: David Boies on the FAN

Posted by Brian Baxter

UPDATE: 4/27/11, 10:38 p.m. A federal judge in Minnesota has denied the NFL's request for a stay, ordering the league year to start, according to The Associated Press. The NFL is expected to appeal the decision to the Eighth Circuit immediately.

Legendary litigator David Boies made the media rounds on Tuesday to discuss the National Football League's request for a stay of a Monday ruling by U.S. district court judge Susan Nelson in Minneapolis lifting a league-imposed lockout of players.

Boies, a founding partner of Boies, Schiller & Flexner, took time to chat with noted New York sports radio personality Mike Francesa about Nelson's ruling and the NFL's request for an emergency stay of that decision until an appeal can be heard by the U.S. Court of Appeals for the Eighth Circuit in St. Louis. (Click here to listen to the interview, courtesy of WFAN.)

Francesa, who introduced "Boyzz" to sports fans as the lawyer played by Ed Begley, Jr., in HBO's Recount (a nod to the litigator's role representing former presidential candidate Al Gore in 2000), managed to hold his own when talking legalese with the former Cravath, Swaine & Moore partner. (Boies left that firm over a decade ago because of his desire to represent the New York Yankees.)

Boies and other league lawyers filed a 15-page memorandum of law late Tuesday requesting a stay of Nelson's ruling. Nelson has set a Wednesday deadline for responding to the NFL's request, which, if granted, will see players seek a $1 billion bond to be posted by the league. Boies expects the Eighth Circuit to rule on a potential stay in a matter of "weeks," he told Francesa, noting that the appellate court will likely be the court of last resort for both sides in the NFL's labor dispute.

"There's always the possibility that one side or another would take the case to the U.S. Supreme Court, but this is a case that I think everyone expects will be settled in the federal court of appeals," Boies said. "Nobody can really predict when the courts will decide...but I think everybody wants to get back to the bargaining table so this can get resolved.... Lawyers can't solve this problem, courts can't solve this problem."

Francesa asked Boies whether federal law bars injunctions in labor disputes--a key argument made by Boies and other lawyers for the NFL in requesting a stay of Nelson's ruling. Boies responded by saying that Nelson's decision on Monday was the "first injunction in a labor dispute...that's been issued since I've been practicing law and for many, many years before that."

Boies acknowledged that the NFL's labor dispute was "an unusual situation," and said that it will be up to an appellate court to decide whether Nelson's action was appropriate. He told Francesa that the league and its counsel--the legal team includes Covington & Burling's Gregg Levy and Benjamin Block, Faegre & Benson's Aaron Van Oort and Daniel Connolly, and Bancroft's Paul Clement--were confident in their position.

With the NFL claiming it remains closed for business despite Nelson's ruling--players have been turned away from most team facilities until the league's request for a stay is decided upon--Francesa asked Boies how his client intends to move forward with the NFL Draft on Thursday. Boies countered the supposed inconsistency in the league's position by maintaining that the only solution to the labor dispute is reaching a new collective bargaining agreement (CBA). A year without a draft, he said, would be disruptive to all teams down the road.

"A handful of franchise players may do well no matter what, but if you don't have a union protecting the rank-and-file, they could lose many of the gains they've gotten over the past 20 years," Boies said. "So there will have to be a new [CBA] and as a result, no one will do something to damage this franchise that has been so good for everybody."

Francesa and Boies also discussed the decision last week by Major League Baseball commissioner Bud Selig to take over operating control of the Los Angeles Dodgers. (The team's operations will be handled by Akin Gump Strauss Hauer & Feld senior counsel J. Thomas Schieffer, as we reported Tuesday.) Boies, who represented Jamie McCourt in divorce proceedings against Dodgers owner Frank McCourt last year, said he agreed with Selig's decision.

"We see this as a way of finally getting the issue resolved," said Boies, who succeeded in getting a California judge to invalidate a marital property agreement that would have given Frank McCourt full control of the Dodgers. "We'd like to work things out so that everybody is part of an amicable settlement, and we were unable to do that and the commissioner stepped in. Hopefully this will facilitate an agreement."

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