As the lawyers have once again been kicked out of the meeting room after nearly undoing the progress that occurred without their involvement, there’s another reason that folks on both sides of the bargaining table should be leery of the true agendas of the men who are providing legal services not as full-time, one-client, Tom Hagan-style employees but as outside contractors with a variety of other clients, who may have sharply contrasting business interests.
It’s a point we first raised back in March 2008, after the NFL hired Bob Batterman (pictured) to assist with the ultimately meticulous lockout planning. In the initial report regarding the NFL’s retention of Batterman from SportsBusiness Journal, Liz Mullen and Daniel Kaplan pointed out that Batterman “has been representing the other three major American sports leagues in labor relations for years.”
Here’s what we said in response: “Though the conflict of interest isn’t blatant, the idea that Batterman’s firm is beholden to the NBA, MLB, and NHL raises a red flag in our minds, given that those three leagues are surely hoping that the NFL find a way to shoot itself in the foot.”
The same thinking applies to the players, too, now that NFLPA* outside counsel Jeffrey Kessler is chin deep in the NBA labor dispute.
Major professional sports leagues are in direct competition, at every level and in every way. And it’s not just the leagues that compete. Though pro athletes may be inclined to believe that they belong to a broader fraternity (and, in many ways, they do), every sport — and thus the men who play the games — are vying for dollars and eyeballs. As one sport becomes more popular, it becomes more profitable. And vice-versa.
As a sport becomes more, or less, popular and thus more, or less, profitable, the players in that sport make more, or less, money.
So how can lawyers like Batterman and Kessler properly compartmentalize their duties to their clients when they are representing clients with inherently competing interests? It’s like representing Coke and Pepsi at the same time, or McDonald’s and Burger King. In this context, we realize that the leagues and the players covet the expertise that comes from law firms that have handled sports-related labor disputes. But we’re frankly amazed that the parties aren’t insisting that the lawyers pick only one pro sports horse at a time when every major league sport is facing labor issues.
With the NFL’s owners and players already committed to excluding the lawyers from the process, this subtle yet potentially significant conflict of interest should prompt both sides to conclude that they’re doing the right thing by politely asking the lawyers to get the hell out, and to stay the hell out.