Another reason to be leery about the lawyers

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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.

44 responses to “Another reason to be leery about the lawyers

  1. I hate lawyers. greedy s.o.b.s oh and I can’t believe we’ve gone 7 whole days without a player getting arrested. where you at Kenny Britt?

  2. All good stuff, but the fact remains that at $350-$500/billable hour (or more?), anyone who has ever had to consult an attorney knows that the number thing to be leery of is billable hours.

    Their #1 interest in any matter is billable hours and how to generate as many as possible per client. When this is all said and done, I wonder how much they will have helped either side. Hopefully they wonder the same thing when they are cutting those fat checks…

  3. The only time it would be an issue is if they were representing different leagues that have the same sport. If they were representing The UFL and the NFL at the same time then it would be a conflict of interest because each league is competing for fans. Once you go into different sports it is like different type companies. You are nit picking here.

  4. Everyone focuses on De Smith, but Batterman and Kessler have been far more detrimental to the cause of positive labor relations. Batterman’s sole purpose in signing on to the owners’ legal team was to engineer the lockout. How do you negotiate in good faith when you know in the back of your mind you’re planning to implement a D-Day scenario? And Kessler seems less interested in what’s best for the players than in restructuring the league through lengthy court proceedings that will line his own pockets. Yes, by all means, bar them and their cohorts from the talks.

    But I like the Tom Hagen reference. What both owners and players need once this is resolved is a singularly focused consigliere experienced in the unique concerns of sports leagues but capable of advising the client without conflict of interest.

  5. You are correct but you don’t go far enough. You forget that the lawyers don’t get the big bucks if lock out is settled quickly. And you don’t take into account that Kessler ( The NFL hating lawyer) has his agenda of the gay who killed the NFL.

  6. If one or two self-centered a-holes are responsible for ruining the 2011 season for millions of people we I will google their addresses, find them, make a media announcement for all fans to gather at a location, then allow the people to do as they please for revenge.

  7. You are reaching on this one, don’t you think both sides would know if there was a conflict of interest? So you’re saying the lawyers have an ulterior motive ,they are working against an agreement so it will bring down the NFL and help the other leagues? Batterman and Kessler are Trojan Horses for the NBA, MLB, and NHL??? Not buying.

  8. twitter:Chapman_Jamie says: Jun 16, 2011 12:33 PM

    The only time it would be an issue is if they were representing different leagues that have the same sport. If they were representing The UFL and the NFL at the same time then it would be a conflict of interest because each league is competing for fans. Once you go into different sports it is like different type companies. You are nit picking here.

    So you are trying to say that for example the Giants/49ers/Sharks/Warriors, Yankees/Mets/Giants/Jets/Knicks, or Astros/Texans etc. aren’t competing for local television airtime, additional merchandise revenues, and most importantly ticket sales drawing in the fans? Sure whatever you say pinhead. It may be less critical in say Los Angeles where there is no NFL team, but the majority of these teams have direct competition locally from other sports. Regardless of the point, it has been shown that these lawyers are more interested in their pissing match than cutting a deal

  9. Lawyers..I have dealt with a few…You want their services..but you want to have the least communication as possible…I think I remember taking out a second mortgage because of an email chain that broke the bank.

  10. Excellent article. I don’t think this has really been touched on much and needs to come to light. Kessler has made $25 million from the NFLPA alone from 2006-2010 according to the New York Times. That is before he was made council for this newest anti-trust lawsuit (Brady) so it is now much more.

    And if he is doing this for the NBA also it must be a staggering number. And the longer the suits take, the more fighting among the parties, etc. the more the attorney’s make. One poster the other day mentioned that Kessler’s share of a successful NFl lawsuit could be in the billions. And even if they lose, these lawyers are milking the players (NFLPA) for millions upon millions.

    The lawyers need to go period. Have them critque the final documents before signature and that’s it. They have every incentive to blow things up and extend unrest out indefinitely. They need to go. Especially Kessler.

  11. “…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”
    Thanks for clarifying that. I had no idea that is what it’s all about…

  12. Another excellent post (reposted below) about the lawyers points out that some of these guys are like pit bulls and only care about winning at all costs and have no regard to make a deal or work with anyone. This “Kill, Kill” mentality is another motivating factor in addition to their individual greed and desire for fame:

    “mswravens says:Jun 15, 2011 11:24 AM

    This is really disturbing and distressing. I am proud to be a lawyer…and I know many fine professionals with whom I am able to work in a productive and reasonable fashion to actually get things done. Unfortunately, I know all too many lawyers who think their job description is to do all they can to blow up the other side, the process, or whatever stands in their way. There are way to many of them with a really perverse perspective on the law and their role in society…and it’s not only unproductive, but downright destructive. As a nation of laws – which we are, and which makes us a much better place than those countries who seem to occupy the evening news every night – this is a dangerous situation.

    That said, there also comes a time where a client needs to recognize that they are doing themselves no favors by employing pitbull lawyers who measure every aspect of life with wins & losses, and don’t seem to understand the notion of the common good. In this case, it seems patently obvious that the teams of lawyers involved are the worst stereotype of the profession & accomplishing nothing but getting in the way as they line their pockets with fees that I am sure would make a hardened criminal blush.

    PLEASE – NFL & NFLPA…get yourself some new lawyers…deal making lawyers who will not be involved in the litigation if the case doesn’t resolve, so they have nothing to gain by short-circuiting what was sounding like productive meetings toward a settlement. PLEASE, PLEASE, PLEASE…fire the sharks & pitbulls and GET A DEAL DONE….for the common good!!!”

  13. Lawyers are the only highly educated profession that inherently produces nothing. Their entire livlihood comes from confiscating wealth from others. Sure we need them. They have created a system in which they are indispensible. Which doesn’t make them important, just the ultimate parasites.

    The entire legal system is set up to be as complex as possible simply to ensure the procreation of even more lawyers (Think not? How many Americans, regardless of their first language, are fluent in Latin, the bedrock
    of Legaleze?)

    This lockout would never have ended as long as lawyers are involved. No more head lice, bedbugs, fleas, or lawyers since they sprinkled the lawyercide DDT. Now something can get done!

  14. you morons who trash lawyers know NOTHING about the history of this country or the political process.

    i bet youd have a different view if and when a lawyer saves your ass from going to jail

  15. I found this very interesting

    I decided to investigate the CBA talks with an in depth deep search. I was astonished to discover just how much the media is biased against the owners in all of this. The slight of hand of deliberately misinforming the public on issues to the outright false statements that the authors of the pieces they release, are delivering to the public:

    I bet most of you who read this have no knowledge that the latest offer from the owners in late May contained concessions to the players. In effect the owners backed down on several secondary issues. And yet in the prime media circles it has been reported that the owners are attempting to screw the players and have done nothing to act in good faith in negotiating.

    I also would lay odds that most who read this have no knowledge that the players in every negotiating session have increased their demands and have essentially made no effort to resolve the differences. I believe the idea that the players and their counsel were intent to take this to the courts all along.

    The following is a review of the last contract offer made by the owners: I believe the content to be quite factual…of course I have added my opinion;

    1) Agreed Revenue at $9.2 Billion – owners want an exemption of $1.8 Billion before breaking down the percentage. ( down from $2.0 Billion — Players want to lower the exemption from $1.0 Billion down to $880 Million.

    Another note here is the Green Bay Packers books are open for public consumption. The Packers represent a good view into the operations of the NFL. While they are a small market team they do rank in the upper portion of the NFL. Total operating costs rank in the top 14 of the NFL overall. I do not see the importance of opening their books. To me this is ridiculous and an attempt to just cruise this to the courts by the players.

    2) The owners have given in on the rookie cap pay scale and have offered to accept the players entry level pay cap for the first 2 rounds. The actual difference between what the owners were wanting and the players were offering did not differ that much monetarily wise. The owners were asking for a more strict and defined entry level wage scale ( sort of slotting scale). Players countered with a pay cap per round in rounds 1 and 2.

    3) A guarantee of up to $1 million of a player’s salary for the contract year after his injury – the first time that the clubs have offered a standard multi-year injury guarantee. This is something that should have been done and the owners know it. They conceded to the players this important piece of contract

    4) The owners also gave to the players assurances that any change in the length of season will be done by agreement between the players and the league and that the 2011 and 2012 season will remain 16 games

    5) The owners also claim they will listen to the players request that players placed on IR are not stuck there for the whole season. The prevailing thought is the owners will agree to a minimum of 7 weeks before being eligible for active roster. They are citing medical reports that suggest that a player generally needs almost 2 months.

    6) Immediate implementation of changes to promote player health and safety by;

    a) Reducing the off-season program by five weeks, reducing OTAs from 14 to 10, and limiting on-field practice time and contact.

    b) Limiting full-contact practices in the preseason and regular season.

    c) Increasing number of days off for players.

    This is a defeat for the owners as coaches are always pressuring for more practice time. Players contend they are in position to receive injuries due to the hard contact and length of practices. So far this has been a concession by the owners on 5 of the 6 points.

    7) This point is highly contentious by the players. They do not want any of their revenue to go to former players. If the owners want to give 82 Million in 2011-12 to support additional benefits to former players, which would increase retirement benefits for more than 2000 former players by nearly 60 percent, then do so with their own side of the split but do not touch theirs. The owners want to use the savings from the rookie pay scale in rounds 1 and 2 to generate the revenue needed for former players. The players want to use the money arrived from the rookie pay scale to go to them the veterans. They demand increases in benefits to them and not to go to former players.

    Okay for me here is where my anger with the greedy players is focused. They will not acknowledge all the former players who make the current players live in luxury. This is pure selfishness on the players. Personally I think the 82 Million is a little low but it is 82 million more than they have right now.

    8.) Offer current players the opportunity to remain in the player medical plan for life. After the 2rd year retired the owners want the players to pick up half of the premium costs. Some owners want the players to pay 100% of the premiums after year 2 of retirement. But the general consensus is that the hard core owners will sign off on this to get a deal done.

    Another concession by the owners who have given on this PR nightmare. The current expired contract had a 2 year extension. But the thing that aggravates players like Drew Brees is the owners want the players to pay for half the premiums. Brees cries slavery and say the owners want the players to go back to prehistoric conditions. I say to idiots like Drew Brees is simple: most “real people” do pay for much of their insurance. If you leave a job then you have to pay 100% of your premiums. Drew Brees and other stupid players want to have their premiums paid for life.

    For principle reasons I would definitely make this a deal breaker. Football players are entertainers but we should not owe them for life and definitely not give them royalty treatment status for life.

    9) Third party arbitration for appeals in the drug and steroid programs.

    10) Improvements in the disability plans and degree completion bonus programs.

    11) Offer more concise financial planning services for players .

    Almost every NFL team has offered players the availability to invest in annuity accounts to give retired players a decent income after their playing days. The numbers show only 7.45 % of the players use this implementation of their salaries. What it comes down to is distrust. The players do not like the idea of the owners “dictating” what they do with their salaries. Most owners are sincerely interested in protecting the players but there is distrust there. So the owners have offered 4 different plans that the players can take advantage of in which the owners are not involved directly with players money. This is something good for the players but again idiots like Drew Brees cries out at the top of his lungs of owner abuse. I am ashamed that Drew Brees and me are of the same species.

    Okay, as far as I can see the owners have made several concessions and have acted in good faith. So far I have no evidence of any sort of square dealing from the players. Of course the players enjoy strong media support and are using the media to pull on the heart strings of the public who just want football.

    My final comment is this: The owners have made several concessions but not once have the players came forward with any new counters. Except to get more greedy and ask for more. And now the players are saying they are not going to make any counter proposals. If this happens then this ardent football fan will gladly give up a season of football and invite a full scale shutdown.

    I also believe the owners should come down some on the exemption amount of 1.8 billion to a more fair ($45 Million per team) of 1.44 billion. I believe the players need to make another concession concerning the “lifetime” paid insurance and face reality that they have many years of earning potential. I mean they did go to college. And the owners are offering to improve the amount in bonus for a continuation of college after retirement or for trade schools.

    Patty has been the author of the former Green Bay Draft Sheet since 1999 hosted here on PackerChatters. Now in semi-retirement Patty has volunteered to do Draft articles periodically in Patty’s Report leading up to the 2010 NFL Draft in April.
    Article Views: 986

  16. nineroutsider says: Jun 16, 2011 12:32 PM

    All good stuff, but the fact remains that at $350-$500/billable hour (or more?), anyone who has ever had to consult an attorney knows that the number thing to be leery of is billable hours.

    Their #1 interest in any matter is billable hours and how to generate as many as possible per client. When this is all said and done, I wonder how much they will have helped either side. Hopefully they wonder the same thing when they are cutting those fat checks…


    And this has been your crash course in Capitalism 101. Have a good day.

  17. Waterboarding is legal now, right?

    Invite all the lawyers to the next secret meeting.

    Note to all invitees: “Bring swimming trunks and snorkle for a diving event that is in included in the schedule.”

  18. @goldrush36 says:

    Is the NHL playing games right now? Is the NBA? Is the NFL? Are any of these leagues competing with MLB for attention right now? I will agree for the brief time that the sports over lap they are competing at a certain level for fan interest however the majority of the seasons are not played at the same time. Further more, sporting events from different sports are often played on different days or times. There are obviously exceptions to this but to think that the NHL makes business decisions based on what the NFL does is kind of a reach, don’t you think pinhead?

  19. A couple of things:
    1. Its more like $1000 – $1500 per hour (I know, I have to hire guys like this on occasion)
    2. If you want a deal done you never bring litigators to the table. Never. Ever. I am impressed that D Smith has been able to shed his old litigator mentality recently and get to business. But before that, I beleive the NFL and the organization formerly know as the NFLPA did not want a deal, because if they had wanted a deal they would not have let litigators run things.
    3. The conflict idea is interesting but neither obvious nor technically a conflict. On the other hand they could not help thinking in the back of their mind, “hey, if these guys want to fight, no skin off my back, I get paid coming and going.”
    4. The economic incentive of lawyers is to bill hours. Good lawyers (yes there are some) want to get the deal done for their client so they will try to do that, but the truth is as you say – there is no economic incentive to finally resolve a problem.

  20. @canuck54143

    Thank you for educating people on reality. I’m tired of people bad mouthing the owners when, up until recently, they have been the only ones trying to get something done.

  21. @pacificamjr

    Beautiful article right there… pro-player trolls wont care though.

  22. Ok people lets settle down a little bit with the lawyer bashing. Saying things like all lawyers are greedy s.o.b’s is just pathetic. That’s like saying all cops are raciest or all doctors are arrogant and have God complexes. Because, after all, all car mechanics are crooks right…. of course not.

    Please don’t let the actions of a few a holes affect your opinion of an entire profession. I am an attorney. I strive to help my client above all else. My billing practices are fair. The legal profession is one of the only professions that have rules of ethics that attorneys have to follow. Failure to follow the rules can get your license to practice law yanked.

    All lawyers do is attempt to clean up other peoples messes. Don’t like your defense attorney or the prosecutor… dont break the law. Don’t like dealing with divorce attorneys… don’t marry crazy people or screw up your marriage by cheating.

    @ orakpwnd1983
    I’m sorry an attorney did that to you. I can say that sometimes as a lawyer, you have to start billing clients for phone calls and emails only because if you don’t, they will take up your entire day. This is especially true in family law cases. However, it is my practice, as well as the practice of most of the attorneys I know, to inform clients that they will be charged for taking calls and responding to emails. At least then the client can decide if their question is worth the money.

  23. Lawyers and politicians, most of which are lawyers require frequent bathing to remove the whale excrement.

  24. The Pepsi/Coke and McDonalds/Burger King comparison doesn’t really fit as they both offer pretty much identical products. Football and Basketball might both be sports, but they sure aren’t the same. It’s more like them representing Coke and Kool-Aid, both beverages that may compete indirectly with each other, but don’t necessarily replace the other as many people drink both.

  25. bearskoolaid1985 says: Jun 16, 2011 12:43 PM

    “And you don’t take into account that Kessler ( The NFL hating lawyer) has his agenda of the gay who killed the NFL.”


  26. the lawyers in these negotiations are greedy s.o.b.s my sister is a lawyer and i know many other lawyers. some are ok and some are greedy s.o.b.s. no matter which type of lawyer it is i hate dealing with them. i’m sure most of them are nice people, but i still don’t like lawyers.

  27. @finsuppatsdown says: Jun 16, 2011 1:56 PM

    So because you are an attorney you criticize everyone’s simple generalizations, but then you make a few of your own.

    “Don’t like dealing with divorce attorneys… don’t marry crazy people or screw up your marriage by cheating.”

    Really? REALLY? Because marriage and divorces are that simple, huh?

    Sure, your original point has some merit, but try not to be such a hypocrite.

  28. These are at most positional conflicts. They should be disclosed, and prospective clients can choose whether to waive them. Not a big deal. Everybody here is a big boy.

  29. I believe if lawyers got paid for resolving the situation instead of getting paid for the time they spend attempting to resolve the situation, things would speed right along. How does it serve their interest to wrap this up ever, as long as any of the clients involved still has money?

  30. Lawyers don’t negotiate they write and interpret rules so deals can be signed. Deals are not made with lawyers they are made between business people who then PAY lawyers to review and write contracts to represent what the BUSINESS wants completed. At the end of the day the NFL is a business who are paying lawyers to do what the BUSINESS Execs want them to. To suggest or do anything else shows poor leadership by goodall and wait “THE LAWYER” dsmith who really doesn’t have an ounce of business dealmaking in his DNA.

  31. Litigators litigate, negotiators negotiate.

    If you want to settle, you need a negotiator. The parties are finally starting to realize this, as evidenced by the fact that they booted the lawyers a second time after they let them back in the room. Once an agreement is in place, then the lawyers can dot the i’s and cross the t’s.

  32. Silly article,,,stick to sports…you have no understanding of what lawyers do…there is no reason to be “leary”…there is no conflict of interest by these lawyers,,,these clients are hiring expertise, i.e. attorneys who have worked on similiar issues and in the same areas of law before for other clients…..any lawyer who promotes an agenda contrary to his client will not be a lawyer (or a sought-out one) for long…

    ridiculously simplistic and way off-base…

    The lawyers are getting their marching orders from the clients…not vice-versa….

  33. @ anonymouslyanonymouscommentor:

    The comments about divorce and criminal law which I posted were intended to be sarcastic and to further my point about generalizations. However, after re-reading my post I can see why you interpreted them the way you did. It is hard to convey sarcasm via the internet.

    My point is this… Lawyer’s jobs are to fix situations that people either can’t or refuse to fix themselves. If people didn’t break the law, the world would not need defense lawyers or prosecutors. If people could trust each other, the world would not need lawyers to review contracts and litigate business disputes. If people could seperate from each other and equitably settle issues of child custody and property division, the world would not need divorce lawyers… If the people who are so critical of lawyers really sat down and thought about it, their problem is not with lawyers, but with the human race in general.

  34. Aren’t there enough guys in and involved with the NFL that know who to generate contracts that have a vested interest in the league actually playing games? Get rid of theses outside bozos so we can watch some football in the fall!!!

  35. This is retarded. The lawyers are secretly working to destroy the NFL from with in ???? Really ??? Really ??? c’mon man. Lets be realistic here. I guess what we need is explanation of lawyers do. See what a lawyer would do is tell you your options, explain witch one and why he would choose and then YOU get to make your choice. So there for this whole post is retarded and the lawyers don’t do anything with out the NFL or players permission.

    Please stop getting the wack job right wing nuts that populate this site all in a tissy with lawyer talk just keep your comment numbers up to keep NBC happy.

  36. I dont agree with this. The other leagues are following the negotiations closely but only because they will at some point be going through this themselves. This labor battle will be the blueprint for the NBA on how to handle things or how not to handle things, depending on how the NFL makes out. Likewise for the player unions.

    Also any missteps by the NFL that lead to anti trust violations will also without a doubt come up in their own labor negotiations. So make no mistake, the owners of the NBA, MLB, and NHL are rooting for the NFL. And the players of those leagues are rooting for the NFL players.

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