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SBJ/April 25 - May 1, 2011/In Depth
The intersection of law and sports
Chance encounters, close connections brought powerful lawyers to industry
Published April 25, 2011, Page 1
|COVINGTON & BURLING|
Bruce Wilson didn't go looking for a sports specialty, but he made the most of an early opportunity.
The lawyer who advised the NFL Players Association to decertify 20 years ago, and then went down that same path again last month, ended up in sports in response to an undeniable call … of nature. “I was standing at a urinal one day and a partner asked me to work on a case involving the NBA,” said Jim Quinn, co-chair of the litigation practice at Weil Gotshal & Manges.
Quinn was an associate at the firm in 1970 when it took on its first sports case, representing NBA players in what would become a landmark case against the league. “Securities litigation — yadda, yadda yadda — or the NBA?” Quinn thought to himself. “I’ll work on the NBA case.”
Quinn, Leccese and Wilson hold three of the more prominent places in what now is commonly known as sports law. None planned to get there, or even considered it as a place on the career map. As classmates at the University of Virginia, neither Leccese nor Wilson took a class in sports law, or even remember one being offered. After 40 years representing large player unions, often in watershed cases, Quinn still does not think of himself as a sports lawyer.
“I view myself as a trial lawyer,” said Quinn, who has spent most of his career arguing cases on behalf of the likes of Disney, Exxon Mobil, CBS and Procter & Gamble.
“The term sports law, it’s mostly nonsense. … People like to market it. I think some firms use it to attract young talent because they’re interested in sports. It looks good in the window.”
It is only in the last handful of years that firms began identifying sports as an industry sector. Even at Proskauer and Covington, it was not pegged as a group until the last decade, though several attorneys at each firm worked almost exclusively with sports clients as far back as 25 years ago. Today, you will find “sports” — or at least “sports, entertainment and media” — as an area of expertise on the websites of many large U.S. firms.
Consider the range of matters that a firm might handle when dealing with a sports client. Labor. Antitrust. Mergers and acquisitions. Intellectual property. Finance. Those are substantively different legal specialties.
Firms typically top their sports practice with an attorney or two who has worked around the industry enough to gain a deep understanding of matters such as league and team structures, antitrust implications and various rights assignments. Those attorneys act as the primary contact to sports clients, but bring in specialists for deeper expertise when they need it.
Said Joe Leccese: "If I hadn't been walking down the hall at that moment, I probably would have had a different career."
“We looked at it one day and said, ‘My God, we don’t really do enough [to market a sports expertise],’” said Joe Calabrese, who chairs the firm’s entertainment, sports and media practice from its Los Angeles office. “If somebody searched our website, they had to find us in the entertainment group. Other firms had done better at distinguishing the sports practices they had. When we lined up all the deals we had done and all the things we were in the middle of, we didn’t feel shy at all about having a legitimate claim of a sports practice. So we decided to put it into our name.”
It is interesting to consider the happenstance behind so many prosperous careers tending to clients in sports.
The Proskauer partner who invited Leccese into his first sports matter, Harvey Benjamin, soon departed the firm for a job at the NBA, leaving Leccese as the ranking transactional lawyer on the league’s matters, even though he had not yet made partner.
Leccese represented the league on its next round of expansion into Toronto and Vancouver, and the NHL’s expansion in the late ’90s. He worked on the formation of NBA China, the WNBA and NBA Development League. He led Woody Johnson’s purchase of the New York Jets and Ted Lerner’s acquisition of the Washington Nationals. He headed negotiations on several large stadium and arena deals.
“If I hadn’t been walking down the hall at that moment, I probably would have had a different career,” Leccese said. “Harvey probably would have walked into somebody else’s office.
“Many of the strongest relationships you have in life are a result of that sort of serendipity. That was mine.”
As young associates at Weil and at Proskauer, Quinn and Jeffrey Mishkin drew a similar assignment on what would be the first significant sports case at their respective firms, deposing potential witnesses on Robertson v. NBA.
The NBA players association, led by union President Oscar Robertson, had filed the lawsuit to block a merger between the NBA and ABA. Competition for talent was driving up salaries in both leagues, and the NBA players wanted to keep it that way. Alleging antitrust violations, the players contested the merger but also sought free agency and challenged the draft.
Jeffrey Kessler's introduction to sports came through the aftermath of a lawsuit the NBA players association filed against the league.
“Jim Quinn and I were kids together on that case,” said Mishkin, who remembers a young Stern approaching him to ask, ‘How’d you like to work on a basketball case?’
“We traveled the country together. I would try to have those depositions as far away as possible, because I learned that Jim hated to fly. So I thought I’d have an advantage if I could get him on a plane for a long period of time. Jim and I became so familiar with each other’s positions that if somebody had snapped their fingers and suddenly Jim Quinn was taking the deposition and I was defending the deposition, we wouldn’t have missed a beat.”
Filed in 1970, the Robertson litigation dragged on for six years. It also served as a launch site for many of the sports industry’s better known lawyers and leaders.
Stern was an associate at Proskauer, doing NBA work under the wing of partner George Gallantz, who brought the league to the firm as its first sports client in 1963. So was Howard Ganz, a labor lawyer who now co-chairs the sports practice at Proskauer with Leccese. Ganz remembers being sent to depose the commissioner of the ABA, basketball icon George Mikan, who stood him up.
The Robertson case also offered the first crack at sports for Jeffrey Kessler, who joined Weil as an associate shortly after the case was settled and worked providing antitrust advice for the union as it applied the terms. Now at Dewey & LeBoeuf, where he chairs the litigation department and co-chairs the sports litigation practice group, Kessler has served as outside counsel to all four major players associations.
“Everything that I’ve done in the sports area came out of my focus on antitrust law, starting with that [Robertson case],” said Kessler, who along with representing the NBA players also built sports experience on antitrust cases involving the NASL and USFL. “So many people came out of that era of cases. David Stern. Paul Tagliabue. It was the time when the sports business started to become a big business. It was the cusp of change in the industry.
“There was a tremendous amount of litigation. And the people who got involved in that then got involved in a lot of other issues surrounding professional sports. That was where it all started.”
Those who worked at the intersection of antitrust laws and labor, such as Quinn, Kessler, Ganz and Mishkin, would cross swords for decades, with Quinn and Kessler representing the unions and Ganz and Mishkin representing the leagues.
“The cast of characters has not changed greatly,” Mishkin said.
Howard Ganz has faced familiar foes for decades while handling labor cases.
Kessler recently told Ganz that one day, when they were no longer courtroom adversaries, they should sit down and swap stories.
“That’s probably true,” Ganz chuckled. “I’ll let him go first, though.”
Building case files
Just as antitrust work for the NBA players led to similar assignments with the NASL and USFL and other players unions for Kessler, many of the leading attorneys doing sports work at firms say their tenure in the industry stemmed from a few key exposures early on.
Consider the career of Peter White, head of the burgeoning sports practice at DLA Piper, the firm he joined last year. White worked on his first sports deal shortly after he made partner at his previous firm, Nixon Peabody, working with Erie County, N.Y., on the development and financing of a new arena for the Buffalo Sabres in the early ’90s. That led to representation of Nassau County in its efforts to fund and develop a new arena for the New York Islanders. When the Islanders announced they were leaving, White brought in a litigation partner to sue them and make them stay.
“That was the first time I met [NHL Commissioner] Gary Bettman, actually, in a courtroom in Nassau County,” White said. “We were successful in stopping them from vacating the arena.”
From there, White shifted to the other side of the table, representing Salomon Smith Barney as underwriters of the bonds that financed a stadium for the New England Patriots, the first NFL team to use the public debt markets to build a new home. Within a month of that deal closing, New York City hired him to work with bankers on a debt structure that could finance new ballparks for the Yankees and Mets. He then worked with the same structure on the financing of an arena in Brooklyn for the Nets, followed by New Meadowlands Stadium, the first stadium to be financed as a joint venture between two teams.
“The New York facilities have one thing in common, and I’m happy to say that’s us,” White said. “It’s quite amazing when I drive over to the New Meadowlands, which we do with fair regularity, on the way out I pass Nassau Coliseum, which I spent six years of my life working on. I pass Citi Field. I pass Yankee Stadium. It’s quite amazing that you had a hand in that.
“There is no doubt that work creates work. So the deals — and the litigation — feed off of each other. When you’re playing in traffic you tend to get re-engaged.”
Mary K. Braza has made the transition from litigator to business adviser, using her skills in part to help Major League Baseball avoid legal challenges.
Like DuPuy, Braza was a litigator. When DuPuy left to join MLB as its executive vice president of administration, and eventually its president and COO, his move brought the opportunity for Braza to work more closely with the league. It wouldn’t be on litigation, though. Instead, DuPuy asked his former firm to help MLB explore what would happen if it took new media rights back from its teams and consolidated them. Braza spent 18 months on the project.
“Not a litigator’s project at all,” Braza said. “And very strategic. We would sit down and brainstorm directions to go on these things. What should the rules be? How do you take advantage of this? How do you give freedom to the clubs even though they’ve returned these rights? We really helped craft a whole new business.”
Braza’s next baseball project was more litigation oriented, working on MLB’s attempt to contract two teams. It exposed her to the relationship between the league and its clubs in ways she had not seen before. She advised MLB on how it might shut down a team, how a failing team should be valued, and how its existing deals, such as broadcast and sponsorship agreements, might be unraveled.
Working as an adviser, Braza used her legal skills to identify issues that had not been tackled, or even deeply contemplated before. She predicted where legal challenges might come and how they could be avoided.
While she didn’t realize it at the time, Braza was turning a page on her career. What once occupied 30 percent of her time had blown past 70 percent. By 2004, sports would take all of her time. Braza also made the transition from litigator — as she had always thought of herself — to business adviser.
“My office at Foley is still in with the litigators, but they kind of look at me sideways,” Braza said. “They say, ‘OK, Mary Kay, you can still come to our meetings. But we haven’t seen you in court for a while.’”
When Braza made a rare courtroom appearance during the Texas Rangers bankruptcy dispute, she had difficulty keeping her seat.
“It was tough for me to not be up there arguing, because that had been my role,” she said. “I was the spokesperson in court for years and years and years. And all of a sudden I was the business lawyer who had negotiated the deal and I couldn’t get up and make arguments to the judge. That was a realization for me that, all right, I guess I’m not doing this as much as I used to.”
That transition from litigator to business adviser was a struggle for Mishkin when he left Proskauer in 1993 to join Stern at the NBA as chief legal officer. He spent seven years there before returning to private practice as a partner at Skadden Arps. Mishkin was fortunate — at least from the perspective of the comfortable adherence to habit — that the NBA spent much of his tenure there in court, affording him the opportunity to argue several closely watched cases, including the league’s bout with the Chicago Bulls over broadcast rights and its case against Motorola regarding transmission of real-time data.
Still, toward the end of his tenure, he began to see that the courtroom eventually would have to give way to the boardroom.
“You’re in a corporate environment where you have to worry about budgets and planning and HR issues and all the functions of a major business organization,” Mishkin said. “That was not my strong point. I had been a practicing lawyer and thought of myself first, last and always as a practicing lawyer. During the period I was there, there was an awful lot of opportunity to be a practicing lawyer. But that’s not always the case when you’re inside. I was beginning to spend more and more of my time on the business side.”
If only for the purpose of illustration, Wilson likes to draw the parallel between his rise in the sports business and Tagliabue’s. Wilson got to do his first NFL work because the firm needed a warm body to accompany Tagliabue to a meeting. As the NFL became more involved with securing credit for teams, Tagliabue had more work to hand off to the corporate department. He gave it to Wilson. Four years later, Tagliabue was elected NFL commissioner. Gregg Levy ascended to replace Tagliabue on NFL litigation at the firm, leaving Wilson to handle the league’s corporate work.
“I was never the kid who could remember batting averages or goal stats, that wasn’t me,” Wilson said. “But I got to be pretty good at understanding what motivates a league as a collective in dealing with its owners and the bankers to its owners and the rules around the financing of its teams. And then we got into the media stuff. After that first five or six years, it begins to build on itself.”
Wilson pointed out an interesting coincidence. He and Leccese were classmates in law school at the University of Virginia. Not only did neither chart a course in sports law, they never considered it as an area in which an attorney might specialize, a fact they joke about together today.
“You’re doing deals for years but you don’t consider yourself a sports lawyer,” Wilson said. “And then, one day, you look over your shoulder at what you’ve done and you realize, I’ve been involved in 37 team transactions. Maybe that’s kind of a specialty. It’s funny. I didn’t choose it.
“I think it chose me.”