Typically, lawyers acquire a conflict of interest when the interests of one client conflict with the interests of another client. Having a conflict of interest isn’t per se wrong. But it’s important for the lawyer to acknowledge the conflict of interest and act accordingly.
It’s also important for the client(s) to understand the dynamics of the situation, and act accordingly.
As the negotiations between the NFL and the players’ union approach critical mass, we believe that the union’s chief outside counsel, Jeffrey Kessler, has a conflict of interest. Getting a deal done diminishes Kessler’s influence and revenue, since it would short-circuit the carefully-crafted (and for Kessler’s firm highly lucrative) litigation strategy over which Kessler would be presiding. It also could set the stage for NFLPA executive director DeMaurice Smith to hire a new firm to handle grievances and other legal issues arising under the new CBA. (Indeed, it’s widely believed that Smith has kept Kessler around because of his institutional knowledge, and because of the fact that the owners don’t care for him.)
In contrast, the failure to get a deal done would result in a significant income and influence boost for Kessler. If, as we assume, Kessler’s firm will handle all litigation arising from the decertification petition (i.e., the fight over whether decertification is a “sham,” the injunction aimed at preventing the league from locking out a non-union workforce, and the ultimate antitrust action), Kessler will become the de facto head of the union.
Kessler also has a somewhat smaller conflict of interest in light of the fact that his son, Andrew, is a player agent. To the extent that the adoption of a rookie wage scale will hurt the agents, Kessler the father-lawyer may be inclined to try to protect Kessler the son-agent. Even if a rookie wage scale that hurts agents is in the best interests of the players.
Kessler surely will deny the existence of any conflict, probably since he knows there’s no graceful way out of it. But we think it’s there, we think it’s real, and we urge the players to consider every piece of advice from Kessler through the prism of what he stands to gain if there’s a fight, and what he stands to lose if there isn’t.
The only way to deal with a conflict of interest is to shine a light on it — and someone within the NFLPA’s Executive Committee needs to unleash a solar beam on the reality that Kessler could be in position to stage a coup this week, intentionally or not.
NFL outside counsel Bob Batterman occupies a somewhat similar position, but only if his firm would end up handling the litany of legal actions that will be filed as soon as Friday. Even then, the NFL’s structure would remain in place, and Commissioner Roger Goodell’s authority would in no way be usurped. For the union, De Smith necessarily would have to step aside; otherwise, the decertification would never stick.
We’re not saying Kessler should step aside. We’re only saying that everyone on the union’s side of the table needs to realize the precarious position that Kessler occupies. Kessler needs to be certain that the upside isn’t clouding his advice, and the players need to be certain that they trust him to be able to do so.