[Editor’s note: Lawyer Jeffrey Kessler, a partner at Winston & Strawn, appeared on Friday’s PFT Live on NBC Sports Radio, one day after securing victory for the NFL Players Association and Patriots quarterback Tom Brady in federal court. The full transcript, with minor edits like the periodic radio reset, appears below.]
MF: Tell me what you do to celebrate a victory like the one you had yesterday?
JK: I’m pretty modest in my celebrations. We had a great team in our law firm Winston who worked on this, and we just all went our for a nice celebration lunch, toasted a few and then back to work.
MF: That’s one of the things about practicing law. There isn’t enough time to enjoy a victory and the good news is there isn’t a whole lot of time to wallow in defeat, not that you’ve had to do that recently against the NFL. You’re 5-0 in these high-profile cases. Is this because Jeffery Kessler is working legal magic or it because the NFL is giving you some low-hanging fruit to deal with when you’re going to court?
JK: Well, I’d like to say it’s all my legal magic, but the situation is we have a league that just doesn’t want to comply with the CBA. It doesn’t want to follow the rules of arbitration when they’re arbitrating, and they really create these situations. It’s the reason why, for example, it’s so important that the players picked De Smith to be the head of the union, who’s an experienced lawyer. You could say, “Well, why do you need to be an experienced lawyer to be the head of the union?” Well, that’s the only way that the union’s been able to protect the legal rights of these players. So it’s been critical to this process, but frankly if the NFL behaved like a lot of other leagues and we had a system that was fair and open in which they followed the rules they would need a lot less of my time.
MF: How did it get to this point? You’ve been involved with the NFL for a long time. Has it always been this way or is this a recent phenomenon?
JK: It hasn’t always been this way, look this system of the Commissioner being able to arbitrate discipline, I’ll bet you it’s more than 75 years old. It long predates the union let alone the last CBA, and yet it has only become an enormous problem since I would say 2012 with Bountygate. It’s like some switch got flipped in the league office where they said, “Okay, let’s see how far we can push this and basically impose penalties wherever we want to without any process and let’s see what happens.” Well, what’s happened is that the union’s had to repeatedly fight and as you mentioned we’ve had great success in protecting the players’ rights. It’s been a hand-to-hand combat that would seem not to be what you would want. From the league standpoint, from the player standpoint, there’s got to be a better way, and that’s what the union would like to see happen here.
MF: We’ve heard now in recent days members of ownership saying, “Maybe things need to change.” Most recently Falcons owner Arthur Blank, Patriots president Jonathan Kraft, 49ers CEO Jed York. But from a nuts and bolts standpoint how do we go from the Commissioner having final say in these cases to a collectively bargained outcome where he doesn’t have final say?
JK: Well, it’s very easy to do. You know, De Smith has made it very clear to the owners and to the Commissioner that he’s willing to sit down at any time to try to make a better system. There’s no need to wait for the end of an agreement. The baseball players just showed that. The baseball players union and their owners, you know with the new Commissioner Rob Manfred, sat down and they get a new personal conduct policy for domestic violence and they put in a fair system with neutral arbitration and everybody said, “Boy, this is a great model.” Well, the NFL players agree. We’d like to sit down with the owners, that’s what De Smith wants to do, and figure out how to craft the system that both addresses the important issues of things like domestic violence but also protects players’ rights. It’s only when you marry the two together that you get a fair system.
MF: Is the problem here, though, that even if the NFL realizes it’s in the league’s best interest to give up that final say over these player discipline issues, at the bargaining table the NFL is going to want something big in return? It’s going to be hard to craft a win-win because you get back at that hand-to-hand combat at the bargaining table over, “Hey I have a cookie. You have a donut. You want my cookie. I want your donut. You better give me your donut before I give you my cookie.”
JK: But that’s why we should do this now. The baseball players and the baseball owners get this and I don’t think the players had to give up any cookies to get it. They did it because both sides said, “This is the best system for both sides and for the game,” and there’s no reason that Roger Goodell can’t say right now, “You know what? I’ve looked at this as Commissioner and I think that we can improve this system by my being the disciplinarian but bringing in a neutral system that everyone will get behind and take the league office out of it and I’m doing it because it’s the right thing for the game.” I believe in what he says, he cares for this game. And I see no reason why he and the owners can’t look at that now and say, “This is the way to go. Put this all behind us and concentrate on football.” I mean why do people want to hear from me? You know, they should want to hear about the Thursday night game, not about the lawsuit.
MF: We’re talking about cookies and donuts. Number one it’s making me hungry, number two it’s forcing me to focus on the steak as we have limited time remaining. And here’s the filet mignon as far as I’m concerned. What is the process going forward from a timetable standpoint? The NFL has filed a notice of appeal. When do you expect a final ruling from the Second Circuit Court of Appeals?
JK: I would expect ordinarily sometime in 2016, probably in the Spring. There’s no way to be sure until the Second Circuit sets the schedule but that would be kind of the normal schedule I would expect in this case. Could be a little sooner, a little later. But you know I would think it’s going to be sometime in the Spring of next year.
MF: I practiced in the Fourth Circuit and every time I had a case there I didn’t find out who the judges were until the morning of oral argument. You’ve got twenty-two judges in the Second Circuit. Three will be assigned to this case. When will you know in the Second Circuit who the three judges are?
JK: I think it’s the week before.
MF: Page 39 of Judge Berman’s ruling lists three specific issues he did not address as it relates to Roger Goodell’s competence to be the arbitrator. Why do you believe Judge Berman didn’t address those issues?
JK: Well, I think frankly it’s because he had a limited amount of time. And since he did not have to address those other issues, because he gave us a complete victory without addressing them, I just think he thought that that was sufficient. And by the way, what it means is that let’s say lightning were to strike and the Second Circuit were not to affirm Judge Berman, which I think they will. Then you’d have to consider the other three issues. So in effect he’s left other grounds to overturn this if we needed them. But I don’t think we’re ever going to get there.
MF: So in theory if the NFL would win this appeal, it goes back to Judge Berman and then he could address those other three issues and say, “NFL once again you lose.”
JK: Right or the Second Circuit could say, “You know what? We’re going to reach one of those other three issues and overturn it on that ground.” They have that authority also.