Labor and Agents
NFL filing calls out Kessler on NBA
Paper sent to NLRB in February says he threatened disbanding NBPA
The NFL told the National Labor Relations Board in February that attorney Jeffrey Kessler was threatening to disband the National Basketball Players Association in what it called a “sham” bargaining tactic, according to documents obtained through the Freedom of Information Act and other sources.
Last week, the NBPA did disband and subsequently file antitrust litigation against the NBA. NBA Commissioner David Stern alleged last week that Kessler, the NBPA’s outside attorney, pushed for that move as far back as 2010. Pointing to Kessler’s alleged disclaimer talk, the NBA contends the union disbanding is a tactic, which would make it illegal under labor law.
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Jeffrey Kessler has been a central figure in both the NFL and NBA lockouts.
Photo by: GORT PRODUCTIONS
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The NBPA maintains the disbandment, or disclaimer, is appropriate because good-faith collective bargaining had come to an end. The NBA players waited 4 1/2 months from CBA expiration to disclaim, suggesting at a minimum that disclaimer was not a first resort. Gabe Feldman, a Tulane University law professor who specializes in sports, said the players can make a healthy case that bargaining had simply broken down, irrespective of whether Kessler had been talking about disclaimer for some time.
Kessler, now one of the class counsels representing players suing the NBA, could not immediately be reached for comment.
In February, the NFL was battling Kessler in his role as an outside attorney for the NFL Players Association, which the next month would disclaim its own status as a union in the course of the NFL labor battle. On Feb. 14, the NFL filed an unfair bargaining case with the NLRB against the NFLPA. The following day, in a position paper sent to the NLRB’s acting regional director, Karen Fernbach, NFL outside counsel Bob Batterman wrote, “[Kessler] has also used the sham disclaimer strategem for the National Basketball Players Association as a bargaining tactic and is threatening to do so again after the current NBA/NBPA collective bargaining agreement expires in June 2011.”
SportsBusiness Journal obtained the NFL’s position paper through an FOIA request. Kessler’s name is redacted in the version provided by the NLRB, but sources said it is Kessler. In addition, in the paper, the person whose name is redacted is described as having advised the NFLPA in 1989 on its disclaimer and the Agents Advisory Council, a group of basketball agents, in 1995. Kessler advised both groups.
Batterman also points in the paper to instances in 1995 and 1998 in which he contends Kessler advocated unraveling the NBA players union. The NBA could point to that as evidence the NBPA planned all along to disband the union.
