Jeffrey Kessler continues to be the face of sports law cases
On the docket the antitrust case is known as Anthony v. NBA. But it might as well be called Kessler v. Stern.
For a quarter-century NBA Commissioner David Stern has faced the same opponent at the negotiating table: players’ attorney Jeffrey Kessler. Stern recently called Kessler “the single most divisive force in our negotiations.”
Kessler, 57, made his reputation by handling complex antitrust and sports law cases and also teaches at Columbia Law School. He said the NBA labor dispute is easy to resolve.
“Remember, this is a lockout. The NBA can end this lockout if it wants right now. Open up the doors and the players will show up,” Kessler said. “The players are asserting their antitrust rights now and very much want there to be a season.”
If owners push, players push back. That’s Kessler’s approach.
In the 1970s, Kessler’s antitrust work at a New York law firm got him involved in a class-action case NBA star Oscar Robertson filed against the league. A settlement was struck, eliminating the league’s reserve clause and opening the door to free agency.
Kessler then presided over the 1987 antitrust suit against the NBA that ultimately led to unrestricted free agency. And he has negotiated every labor deal since — in 1996, 1999 and 2005. But the current negotiations have been contentious.
The NBA claims that 22 of 30 teams were unprofitable last season as the league lost $300 million. And Stern wants the players to accept a big pay cut to stem the losses.
This week talks broke down after the players’ union rejected Stern’s latest ultimatum. Games through Dec. 15 have been canceled and the 2011-12 season is in jeopardy.
On Tuesday, NBA players followed the lead of NFL players, essentially dissolving their union, so they could file antitrust lawsuits in Minnesota — where the NFL players did — and the worker-friendly Northern District of California.
Kessler joined celebrated lawyer David Boies, who represented NFL owners in that labor dispute, to file the class-action cases against the NBA.
Billy Hunter, longtime head of the NBA players’ union, calls it “a stellar team.”
It’s been a busy year for Kessler.
Last summer he helped broker a new labor deal for football players after they’d dissolved their union and filed antitrust suits against the NFL. They reached a settlement before any regular-season NFL games were canceled.
“I’ve negotiated more [labor] deals in sports than anyone else over the last 20 years,” Kessler said.
Years ago he also helped NFL players establish a salary cap and free-agency system. Additionally, he’s worked on behalf of athletes in Major League Soccer, Arena Football, women’s tennis and pro hockey.
“At the end of the day, it’s about getting a resolution, not adversity. I hope we can get together and resolve this, so fans can have basketball and we can work together growing this game.
“It’s greatly deceiving how much power I reportedly have,” he said. “It’s the players’ livelihood. They ask my advice because of my long experience, but I’m just one of many advisors.”
Asked whether he thinks he “won” the NFL labor battle, Kessler said, “The players got a very fair deal. I get great satisfaction from a fair deal.”
However, one key difference is that NFL owners and players were arguing over how to divide a surplus of $1 billion, whereas Stern is trying to rein in spending.
At one point last week, Kessler was so distressed by the negotiations that he said Stern treated players like “plantation workers.” Kessler later apologized.
Stern has called out Kessler, too, telling the Washington Post, “Kessler’s agenda is always to inflame and not to make a deal, even if it means injecting race and thereby insulting his own clients.… Kessler’s conduct is routinely despicable.”
Kessler emailed The Times that day: “I feel sorry that David is apparently feeling so much pressure from his owners that he is resorting to childish name-calling. My clients are the NBA players — not David Stern.… The only thing despicable here is the NBA’s bad-faith bargaining tactics.”
In the previous labor deal, NBA players earned 57% of basketball-related income, worth more than $2.15 billion last season. Now, owners want players to accept as little as 49%, while installing a strict luxury tax on teams that exceed the salary cap while reducing guaranteed money and shortening the lengths of contracts.
“For players, it’s critical that when contracts expire, they have freedom of choice, to get offers for their services. The NBA wanted to destroy that market for most middle-class players,” Kessler said.
“The true superstar will always have a market. That’s not the case for the average NBA player. The NBA has proposed a collection of restrictions so onerous we couldn’t accept them. It was take it or leave it … so the players made the only decision that makes sense for our generation and the next generation.”
The NBA is trying to severely penalize “players No. 4 through 10 on the roster,” he contends.
“It’s been like death by 1,000 cuts. Any one of them you could solve in compromise, but with 20 of them together [it] chokes the competition out of the system.”
So, expected in court soon are superstars such as Carmelo Anthony and Kevin Durant, plus Derrick Williams, the La Mirada High grad who’s part of the Minnesota lawsuit, awaiting his first NBA contract — all led by their experienced attorney.
“Their careers can end at any moment; it’s all on the line for them,” Kessler said. “People underestimate the players, but they have tremendous strength, and they are selfless in caring about future generations.…
“I’ve been on their side since 1977. That’s the side that needs my help the most.”
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