Two skilled lawyers ready to square off in NFL labor case
Reporting from St. Paul, Minn. — The question of whether labor strife will delay the NFL season lands in federal court Wednesday, in a case that pits two highly skilled attorneys against each other.
To complement its lead attorneys, the NFL has retained David Boies, who has fought in such well-known battles as the Bush-Gore recount, California’s gay rights debate, the U.S. vs. Microsoft antitrust matter and even Frank vs. Jamie McCourt.
He will go up against the players’ lead lawyer, Jeffrey Kessler, a New Yorker whose prior legal support of the players helped strike down past free agency restrictions and established the just concluded free-agency/salary cap system.
Boies is expected to present the case before U.S. District Judge Susan Richard Nelson in St. Paul that the league has every right to lock out its players until the decertified NFL Players Assn. returns to the bargaining table as the legitimate union the league believes it is.
Kessler will argue with “a number of judicial opinions on his side that says the players can sue the league when they decertify,” said David Scupp, a New York antitrust attorney. “The league can call [decertification] a sham, but other cases imply otherwise.”
Legal experts project Nelson will find the merits of the case a players’ advantage. Nelson on Monday allowed a group of NFL retirees to join in the argument for an injunction to preserve benefits.
If Kessler wins an injunction from Nelson that stands up through appeal, most sports law experts forecast the NFL will have no choice but to bring labor peace in the summer and let the season proceed uninterrupted.
Boies is a Fullerton High School graduate who attended the University of Redlands en route to Yale and New York University. He will work with the NFL’s lead litigators, Jeff Pash and Gregg Levy, along with labor lawyer Bob Batterman and former U.S. Solicitor General Paul Clement.
“David is a freak of nature, and is at least twice as good as any other lawyer I’ve ever seen,” said Thomas Goldstein, who worked alongside Boies in former Vice President Al Gore’s fight to have Florida’s presidential votes recounted in the bitter 2000 election loss to George W. Bush.
“David can keep details of 20 different relevant cases in his head in a frightening way, and he gets to the heart of a case faster and more clearly than anyone.”
Boies’ opponent in the case, Kessler, is said to have a different style.
“Kessler’s a veteran of these wars, an aggressive attorney who might not be polished by your definition, but sometimes that’s calculated,” said Daniel Lazaroff, a sports law professor at Loyola Marymount.
He is also a key player in the players’ lawsuit against the league, Brady vs. NFL, that is in Nelson’s court.
Also presenting the players’ case will be labor lawyer Jim Quinn, who has paired with Kessler for years on player issues, complementing Kessler’s sometimes more technical arguments with more abrupt, plain-spoken insertions.
The NFL is arguing the federal court shouldn’t rule on the matter until the slow-moving National Labor Relations Board decides whether the decertification was legitimate. Federal judges, including the newcomer Nelson, are not prone to be influenced by star power but in a disputed matter the tiebreaker could be whoever makes the most compelling presentation.
“The strategy is shock and awe; the NFL is sending a message that, ‘We have the best legal talent, and we’ll spend any amount of money it takes to beat you,’ ” Goldstein said.
Nelson will be focused on the merits of the case. Michael Ciresi, a former law partner of Nelson for 16 years, described her as “very smart, savvy, respectful … not afraid to make the tough decisions.”
From that standpoint, the NFL needs Boies to “fight a good fight,” Scupp said, making a compelling case that a continued lockout inflicts no irreparable harm or immediate monetary damages upon the players.
“It’s going to be a hard-fought game,” Scupp said.
The Associated Press contributed to this report.
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