Yet the world’s best football players have let Kessler call a tricky end-around in which the ball is principally his: the decertification of their union. This dissolution of the National Football League Players Association, executed last month in federal court in Minnesota, allowed 10 players, most notably Tom Brady, Drew Brees andPeyton Manning, to file for an injunction requesting that the league’s current lockout of players — the true opening salvo in negotiations for a new labor contract — be declared illegal. Court arguments begin Wednesday.
The players will be represented by Kessler, who ran this decertification play before (very successfully) during football’s last labor crisis in 1992. But Kessler, by many estimates, is more than an artful illusionist who makes unions disappear: he is one of the most prominent and provocative lawyers in sports.
An antitrust lawyer by trade, he has represented not only all four major team sports’ players unions, but also a basketball player who choked his coach (Latrell Sprewell), a football player who all but wanted to (Terrell Owens), a double-amputee sprinter (Oscar Pistorius) and a female runner suspected of not being female enough (Caster Semenya).
As fast as these athletes can run, Kessler talks even faster. When asked about whether his cases rely more on pretrial preparation or performance in the courtroom, he answered, “It’s much like being an N.F.L. player.”
“If you don’t do the preparation, then you don’t have the tools when it gets time to perform in the court,” he explained. “At the same time, just preparing isn’t going to get you there — you can’t predict exactly how events are going to unfold. You have to be able to adapt to how the case presents itself. The payoff is in the performance.”
Kessler’s payoff is considerable — according to documents filed with the Department of Labor, Kessler’s law firm, Dewey & LeBoeuf, was paid more than $25 million for representing the N.F.L. Players Association from 2006 through 2010. More than $11 million of that was termed “C.B.A. Matters,” even before negotiations on a new collective bargaining agreement hit full stride this year.
The outcome of Kessler’s next big performance will either end the lockout or legalize, at least temporarily, the N.F.L.’s move to essentially freeze many of the basic operations of the league: the signing of free agents, the playing of games and ultimately player paychecks.
Kessler’s argument will draw on his antitrust expertise, which has been honed in cases outside sports — most notably in major cases he won involving Japanese electronics companies.
“He’s brought antitrust cases in the real world, which makes it easier for him to apply antitrust in the sports world,” said Stephen F. Ross, a professor of law at Penn StateUniversity and director of its Institute for Sports Law, Policy and Research. “Many who are very sophisticated sports lawyers, because they only deal in sport, they start with some fundamental propositions and assumptions of how things work, which may not be accurate. He doesn’t come to it from that perspective.”
Kessler has handled sports cases extensively since earning bachelor’s and law degrees fromColumbia University. An early mentor at the firm Weil Gotshal was Jim Quinn, who is co-counsel on the current N.F.L. players’ antitrust action and who worked on the N.B.A.landmark free-agency case involving Oscar Robertson.
Kessler said sports-related litigation makes for its own set of challenges. Some judges want his clients’ autograph. Some jurors resent their wealth. All must be reassured at every turn that athletes have rights like anyone else.
“Jurors come in with preconceptions about the issues, and sometimes judges do, too,” Kessler said. “So you have to worry if the juror or judge is a sports fan, if they read the newspapers, and how that might influence their image of the facts and the legal issues.”
In the early 1990s, after two ineffective strikes highlighted the need for new thinking, the N.F.L. players union approached Quinn and Kessler. Players did not have meaningful free agency — the ability to sign with a team of their choosing — and a recent federal court ruling had held that as long as the players had a union, antitrust law did not apply to their collective bargaining process. So, Quinn and Kessler recommended the almost unthinkable: that they stop being a union, after which players could sue the league individually or as part of a class action.
The strategy worked — suits headed by Jets running back Freeman McNeil and Eagleslineman Reggie White led to a substantial form of free agency and a salary-cap system that fostered labor peace for almost 20 years. (The N.F.L. demanded during negotiations that players reconstitute themselves as a union, underscoring the power of antitrust leverage.) Kessler recommended in 1995 that N.B.A. players also decertify, but they were able to agree to a contract without doing so.
The novelty of decertification had worn off by the time N.F.L. players filed for it last month. Ross said that interpreting the move depended on one’s view of modern sports law. If the natural order is that owners and players unions collectively bargain under labor law, Ross said, “then it’s a sham, they got away with it once or twice, but we shouldn’t let them do it again.”
Ross said he viewed the more natural order as no union, unless players prefer one.
“Jeff understands that point — the problem is that the owners want to impose rules that will not sustain antitrust scrutiny,” he said. “So you can either think he’s a Machiavellian person who has a sham strategy and he’s ruining everything, but if you really press people, he’s just advising players to exercise their legal rights. He’s the messenger.”
That message will be delivered by Kessler in open court Wednesday. His words may not ultimately fly, but they will run their route as quickly as his clients run theirs.
“Sometimes it’s really hard to keep up with him — he’s done this so long, he’ll talk and talk and talk and I’ll miss something,” said Domonique Foxworth, a cornerback for theBaltimore Ravens who serves on the players’ executive council. “I said, ‘I’m going to take you out running and see how far behind I can leave you.’ ”