November 14, 2011 8:30 PM

Switching Sides: Owners' Lawyer in NFL Lockout, David Boies Signs on with NBA Players

Posted by Brian Baxter

The National Basketball Association's 2011–12 season appears doomed, and David Boies, the man who once took on Microsoft, could soon have another high-profile antitrust battle on his hands.

That's the way things are shaping up after NBA players rejected the latest offer by owners for a new collective bargaining agreement on Monday and announced that they hired Boies, Schiller & Flexner for a possible antitrust suit against the league. 

But does Boies's work for the National Football League in a similar antitrust dispute with its players this summer present a conflict given his current representation of the National Basketball Players Association? (The union would become a trade association if decertification occurs.)

The NBPA is already being represented by Dewey & LeBoeuf global litigation chair Jeffrey Kessler, who cochairs his firm's sports practice. Dewey and Kessler also represented NFL players in their labor fight with the league over the summer. Kessler declined to comment on any potential conflict by Boies, but did say in an e-mail to The Associated Press that "the fact that the two biggest adversaries in the NFL players dispute over the NFL lockout both agree that the NBA lockout is now illegal and subject to triple damages speaks for itself."

By hiring Boies, the NBPA could get a valuable peek inside the playbook of a litigator who handled a similar antitrust dispute only a few months earlier, according to lawyers who spoke with The Am Law Daily on the condition of anonymity Monday.

One potential issue: At least two men own teams in both leagues. Microsoft cofounder Paul Allen owns the NFL's Seattle Seahawks and the NBA's Portland Trail Blazers. Real estate billionaire E. Stanley Kroenke, meanwhile, owns the NFL's St. Louis Rams, having taken full control of the latter a little more than a year ago, as well as the NBA's Denver Nuggets. (Kroenke transferred control of the Nuggets to his son, Josh, last year, in order to comply with NFL cross-ownership rules.)

Speaking of Allen specifically, one lawyer familiar with the NFL's antitrust litigation says he finds Boies's decision to align himself with NBA players curious. "So Paul Allen was his client," this lawyer says. "And now Paul Allen is adverse to the NBPA. How does he do this?"

A further complication is that many of the same issues that arose in the NFL's labor dispute—splitting league income between owners and players, revising the league's salary cap structure, and adopting a wage scale for certain players—are also at the heart of the NBA's labor negotiations. By representing NBA players in the same year that he argued in court on behalf of NFL owners, Boies could find himself taking positions at odds with what he argued just a few months ago.

According to one prominent legal ethics expert, however, the fact that the NFL's antitrust fight ended in July when the two sides reached an agreement on a new labor deal is something Boies is likely to have weighed before signing on with the NBA players—as is the question of whether he needs to obtain conflict waivers from Allen and Kroenke.

"Owners and their teams would not be deemed clients of the lawyer for the league," says Stephen Gillers, of New York University's School of Law. "By representing the NFL, Boies would not have a traditional attorney-client relationship with its member teams."

On the issue of the NBPA seeking out Boies because of his experience handling a similar antitrust dispute involving another sports league, Gillers says lawyers draw on their expertise in similar ways all the time to recruit clients.

"Lawyers are encouraged to develop specialties that will make them attractive to multiple potential clients in new matters," Gillers adds. "There's nothing wrong with this—it's efficient, it's a good thing. The NFL is not the NBA."

There is one wrinkle that Gillers says could preclude Boies from representing NBA players. If in his role as an attorney for the NFL, Boies obtained information from Allen and Kroenke that is relevant to any litigation the NBA players might pursue against the NBA, attorneys for the league could have some basis for moving to disqualify him, Gillers says. He adds that the issue "is highly improbable and far more theoretical than real."

The NBA's outside lawyers—led by Proskauer Rose's Howard Ganz, Skadden, Arps, Slate, Meagher & Flom's Jeffrey Mishkin, and Bancroft's Paul Clement—are already advising the league in litigation filed against the NBPA in federal court in August that accuses the union of negotiating in bad faith. Proskauer and Clement teamed up with Boies and Covington & Burling in the NFL's court fight with football players represented by Dewey's Kessler and Gibson, Dunn & Crutcher's Theodore Olson earlier this year. (Neither Ganz, Mishkin, or Clement responded to requests for comment on Boies's retention by the NBPA.)

Boies, who did not immediately respond to a request for comment, did speak with reporters gathered for a press conference held in New York Monday by NBPA executive director G. William Hunter, himself a lawyer, and union president Derek Fisher. Boies told reporters that he has previously represented both players and leagues, noting his past representation of the New York Yankees in a suit against Major League Baseball. (A conflict over Boies's role in that case led him to leave Cravath, Swaine & Moore in 1997 and start his own firm, whose profits have surged in recent years.)

Through a Boies, Schiller spokeswoman, Boies confirmed that the firm had been retained by the NBA players and released the following statement on his role in their dispute with NBA owners and management:

"We are assessing what legal options the players have. It is clear that the collective bargaining process has broken down and has now ended. The players have made every effort to make the collective bargaining process work. They made concession after concession, and continued for three months after the owners' lockout to try to reach a collective bargaining agreement. Ultimately, it became clear that the NBA was not willing to negotiate its demands and in the face of the NBA's ultimatum, the players had no choice but to recognized that the collective bargaining process could not succeed. The [NBPA] has never previously disclaimed, and the players reached today's decision reluctantly, but unanimously recognizing the NBA had left them with no effective choice. In light of the ending of the collective bargaining process and the [NBPA] disclaiming its union status, it may be that the owners will now end their boycott and negotiate team by team with individual players. If not, the players will have to assess what their legal remedies may be."

Even some of the lawyers who are dubious of Boies's representation of the NBPA acknowledge that he is probably in the clear in agreeing to take the players from the court to the courthouse.

"I don't think that there is a conflict here that the law professors would find disqualifying," says one veteran sports attorney. "Boies is no longer involved in litigation for the NFL, it's over, and that probably relieves him of any obligation to [seek a waiver]. But the issues are the same, and this is the sort of issue that a big law firm confronts all the time."

Boies joins Kessler and a team of labor lawyers from Steptoe & Johnson as counsel to the players union. (The Am Law Daily reported in September on the legal fees paid by the union over the past six years to outside law firms.) The union's top in-house lawyer is associate general counsel Ronald Klempner, who took over earlier this year after the death of former general counsel Gary Hall.

Should NBA players muster enough votes to decertify—more than 200 player signatures have reportedly been collected to move forward with the process—it will be up to the National Labor Relations Board to certify the vote, something that could take up to two months. The NLRB's acting general counsel is Lafe Solomon, who has been embroiled in controversial litigation with Boeing, which has led Republican presidential candidate Mitt Romney to call for his resignation. Also pending before the NLRB is an unfair labor practice claim filed by the NBA against players in August in response to a similar complaint brought by players in May.

NBA commissioner David Stern, a former Proskauer partner, has called the NBPA's decertification strategy a "bad negotiating tactic." The NBA's general counsel is Richard "Rick" Buchanan, a former associate at Covington. Other members of the league's internal legal and labor negotiation team are deputy commissioner Adam Silver (a former Cravath associate) and deputy general counsel Daniel Rube (a former associate at Ballard Spahr and Paul, Weiss, Rifkind, Wharton & Garrison.)

By adding Boies to their legal roster, the NBA players have also added a measure of media savvy. Just seven months ago, he appeared on WFAN radio in New York to discuss the NFL antitrust litigation with local sports personality Mike Francesa. Unfortunately for basketball fans, it's possible that Boies could be back on the air before too long discussing the same topic in a different context.

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