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SBJ/April 30-May 6, 2012/In-DepthPrint All
Talk to many sports lawyers, and they’re likely to reveal how they mostly stumbled into sports, but it’s no accident that sports has evolved into a specialty in the legal profession. Sports lawyers hold a rising level of influence as deals become more complex and the risks more pronounced, whether it’s drawing up a local sponsorship, lobbying to secure public funding for a development project, or detailing components of a media rights deal. In the stories that follow, meet some of the lawyers who have made names for themselves in sports and see why they are worth watching in the years ahead.
Partner, DLA Piper, New York
Counsel, Arent Fox, New York
Partner at Robinson, Bradshaw & Hinson, Charlotte
Senior vice president and general counsel, San Francisco Giants
VP of legal affairs and chief administrative officer, Minnesota Vikings
Senior vice president, chief intellectual property counsel, NBA
Executive vice president and general counsel, UFC
General counsel and vice president of business affairs, Pac-12 Conference
General counsel and vice president of legal affairs, NCAA
Cleveland Browns general counsel; partner, Squire Sanders
Senior vice president, global strategy, business development and business affairs, ESPN
None of them sparked his interest as much as the deal that had occupied much of his time for the previous two years: Stephen Ross’s purchase of the Miami Dolphins for $1.1 billion. With that ride behind him, Baker knew most of the work that awaited him would come from outside of sports.
Photo by:ETM Photo
In March 2010, Baker left Paul Hastings to join the sports group at Nixon Peabody. Two months later, he and three other members of that group joined in a mass jump of Nixon Peabody partners to DLA Piper, which was building out its sports practice with an eye on properties around the world.
In only two years at the firm, Baker has represented the Atlanta Spirit group in its sale of the Atlanta Thrashers and then the proposed sale of the Atlanta Hawks; leveraged buyout specialist Joshua Harris in his group’s purchase of the Philadelphia 76ers; and the Checketts Partners Investment Fund in its stake in Legends Hospitality.
“With a solid foundation in M&A, once you get to learn your way around the league rules and establish relationships with people, [sports law] is something you can pick up,” Baker said. “You can develop a practice.”
— Bill King
Arent Fox, founded in Washington, D.C., made Bartie part of its sports practice in the firm’s New York offices. It’s the latest move in a career that began at Proskauer and has since included stints in publishing (Maxim), cable television (BET) and the NBA, and roles ranging from the startup of the XFL to tennis.
Photo by:Photo Op
Instead, he aimed to reach the NBA through law school, a goal he achieved — and then some.
Now his focus is on Arent Fox, a firm that has worked on deals such as the Los Angeles Lakers’ $3 billion, 20-year contract with Time Warner Cable. Stadium and arena development, franchise sales and acquisitions, and labor and employment contracts are also Arent Fox areas of emphasis. Bartie recently helped Brooklyn Sports & Entertainment sign AEG Facilities to help operate the Barclays Center, the soon-to-be home of the New Jersey Nets.
The pathway to Arent Fox provided Bartie with experiences that make him more than just a source of legal expertise.
“I functioned as an attorney, as a business adviser [and as] an operator,” he said. “So I have a 360 view of the landscape.”
— Erik Spanberg
Blending carburetors and counsel happened by accident. In 1992, a client named Ken Barbee wanted to buy a racing souvenir company from team owner Rick Hendrick. Caldwell worked on the purchase and, later, helped Barbee land new contracts for licensing rights so the company could keep making T-shirts and hats featuring drivers. The business evolved into the merchandising company Motorsports Authentics.
Photo by:NASCAR Media Group / Scott Hunter
In addition to drivers, Robinson, Bradshaw & Hinson works for owners and broadcasters (Richard Petty, Ray Evernham, Krista Voda), teams (Wood Brothers, JR Motorsports) and sponsors (Bank of America, Wurth). The firm also has extensive relationships with the NCAA and Southeastern Conference.
“I think that the NASCAR practice as far as things like sponsorship agreements and licensing is probably the most complicated sports angle of it,” Caldwell said. “When you look at the stick-and-ball sports, they all have licensing entities where all the assets are combined. That’s not the way it works in NASCAR. You have to aggregate them at the team level, you have to get one from NASCAR. It has provided some crossover opportunities — they’re very transferable skills.”
— Erik Spanberg
After all, Warren has faced long odds before and always managed to find a path to success. A car struck Warren when he was 12, breaking his femur and forcing him into a body cast for six months. It looked doubtful he would ever be able to play sports again.
Photo by:Steve Smith Photography
Warren gained his first job in the NFL through an introduction to then-St. Louis Rams coach Dick Vermeil. The coach was looking for someone to run player programs, troubleshooting off-field issues. “I felt he was overqualified,” Vermeil said.
Warren was hired and spent four years in St. Louis, a tenure that included the Rams’ Super Bowl victory.
Later, in private practice in Arizona, he advised the Wilf family in what became a $625 million agreement to buy the Vikings. Since then, he has worked for the franchise, handling all legal issues along with day-to-day business matters and helping with the long-running quest for a new stadium.
Finding a stadium solution is putting all of Warren’s skills to work.
“It’s been a challenge,” Warren said. “Because on any day you can go from dealing with a legal issue to dealing with a finance-tax issue to a real estate issue to lobbying. And now you’re talking about playing” at the University of Minnesota while the stadium is built.
— Erik Spanberg
Jack Bair planned to take a few weeks off to travel before starting a new gig at the San Francisco city attorney’s office in September 1992. After three years at a boutique firm, he looked forward to the first-chair experience that would come in the public sector. But he wanted to take a break first.
Then, on the first week of August, the Giants announced they intended to relocate to St. Petersburg, Fla. Bair’s boss phoned to ask whether he would forgo his vacation to challenge the move in court. Bair already was engaged in the matter as an appointee on the city’s ballpark advisory committee. He gladly skipped his trip.
Photo by:San Francisco Giants / Kuno
Six months later, the Giants’ new owners, impressed by Bair’s work, hired him as general counsel, putting him in charge of the political campaign to win approval for a new ballpark.
“I was in the right place at the right time,” Bair said. “It’s difficult to graduate from law school and say I’m going to be a sports lawyer. There are firms that have sports clients. But typically you have to learn to be a lawyer and earn your stripes and when the opportunities arise, you go for them.”
As the chief legal officer at a club that also employs a deputy general counsel, Elizabeth Murphy, Bair is able to spend more time on single projects, such as a proposed $1.6 billion mixed-use development that would replace parking lots adjacent to AT&T Park.
“A lot of what I’m doing is similar to what we did to get the ballpark built,” Bair said. “But this is even larger, more complex and will take longer to build out. It’s exciting and it draws on all the same skills. You’re making the case to the public that this is a project that will be good for a lot of people.”
— Bill King
“It was literally an argument over the design of radiators,” Deutsch said. “But the concept of protecting brands was really interesting to me and following that case, I developed a specialty.”
Today, Deutsch protects intellectual property a bit more exciting than heating elements in her job with the NBA.
Photo by:Steven Freeman / NBAE
“When I started at the NBA [in 1998] there was barely an Internet,” said the native New Yorker. “It took a single percentage of my time. Fast forward to 2012 and now it represents a high double-digit percentage of my time.”
Deutsch’s duties include preventing unauthorized use of NBA copyrights and protecting against the use of online platforms to sell counterfeit merchandise. She is a trademark legal expert and it’s an ever-evolving job given the NBA’s international reach. Consider that nobody had heard of Jeremy Lin until the middle of this season. But when “Linsanity” hit, Deutsch and her legal team were thrust into guarding against the sale of knock-off Lin merchandise all over the world.
“The biggest challenge is to keep ahead of the next trend in deploying your resources,” Deutsch said. “Our goal in intellectual property is to try to be ahead of the curve.”
— John Lombardo
“We might not be the biggest sport in the world yet, but we are certainly the biggest pay-per-view provider in the world,” said Lawrence Epstein, executive vice president and general counsel of the UFC.
While he considers himself a sports lawyer, Epstein said it has taken him a while to get there. For years, working on matters in private practice for Las Vegas-based boxing promoter Top Rank, and then UFC owner Lorenzo Fertitta, he thought of himself as a commercial lawyer with a toe in sports.
He realized he had made the conversion to sports in full when he signed on as the UFC’s general counsel five years ago. Still, the combat corner of the sports world differs from most others.
While Epstein is involved in television and licensing negotiations, he also works with government regulators inside the U.S. and abroad — something attorneys at teams, leagues and agencies rarely do. Boxing and mixed martial arts are the only two sports that derive most of their revenue from pay-per-view, another wrinkle that makes his job unique. In November, the UFC sued the state of New York, which has banned MMA events since 1997.
“I do think my position is a unique intersection of sports, politics, television and regulatory issues, all in a sport that is young and edgy,” Epstein said. “I can’t think of another place where I could do what I do here. We’re not a mature business with a lot of managers running around. We’re a growth business. And that’s exciting.”
— Bill King
“Once you realize at a law firm that you’re going to spend a lot of hours working, you figure you might as well do it on something you love,” Dixon said. “And for me, that’s sports. … I’m not like a lot of these young guys who are going to law school now knowing that they want to get into sports. I didn’t know that I’d wind up in sports when I was in law school. But it ultimately was the way for me to combine my passion with what I do.”
Photo by:Heather Vaughn / Pac-12
He went back to college a third time at the University of Massachusetts for sports management and that led to positions with the NFL and the Kansas City Chiefs, before he landed at the Pac-12. In two years at the conference, Dixon has been integral in the record $3 billion media rights deal with ESPN and Fox, and the formation of Pac-12 Enterprises.
He also oversees football for the conference, which can put him among coaches, athletic directors, officials and media partners at any given time.
“You’re not so much a lawyer as you are a mediator,” Dixon said. “The gist of being a good sports lawyer is getting everyone to a happy place. The thing about sport is that everyone is a competitor, everyone is trying to win and everyone can’t always win. Everybody’s not always going to be happy, but you’ve got to somehow make them think they’ve won.”
— Michael Smith
Photo by:Tony Morrison
“As a consequence of negotiating the deal to bring the Browns back to Cleveland, I became well-known in NFL circles in my hometown,” he said.
He became so well-regarded that by 2006 he was one of the final five choices to be the next NFL commissioner. In 2009, the Browns offered him the general counsel position, which he accepted, but kept his partnership at Squire Sanders, his firm of 34 years now.
In addition to James’ legal affairs, Nance handles several other athletes, though he won’t name them and says none are football players.
Today, his focus with the Browns is largely on developing land around the stadium and improving the facility itself. The team has talked about creating a sports medicine and fitness center along the lakefront as an anchor for development.
— Daniel Kaplan
“There’s not really a typical day, except that every day is busy,” Remy said. “Not a day goes by that I don’t have a conversation with our staff or outside counsel on the various pieces of litigation brought against the NCAA. You really have to stay abreast of whatever developments there are in the law and any developments that might affect these cases.”
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Photo by:Marcia Stubbeman / NCAA
Remy came to the NCAA a year ago from the Washington, D.C., offices of Latham & Watkins, where he specialized — not shockingly — in litigation. He was drawn to the NCAA, in part, because of his love of sports and his background as a youth basketball coach.
While living in Northern Virginia, Remy coached teams ranging from 10 to 17 years old at different AAU programs. He got involved because his two sons played.
“Coaching basketball at the grassroots level really gave me an affinity for what it takes for young student athletes to be successful,” he said.
Remy, the son of an Army officer, followed his father into the military for a while in the LSU ROTC program and later the Army, but he didn’t envision a career path taking him into law until after his service.
“It’s not like I grew up around a bunch of lawyers, but the military background did show me the discipline and values it takes to be successful,” Remy said.
— Michael Smith
Donoghue joined ESPN as an attorney for the ESPN Internet Group and Walt Disney Internet Group. While she no
“I learned that things usually aren’t that complicated,” Donoghue said. “In the end, you have to simplify and focus on what matters.”
For example, when ESPN executives first came up with the idea of the “30 for 30” documentary series, Donoghue was being pressured to use Hollywood experts, such as agents, to run the program. Donoghue fought that idea and wound up with a one-page deal sheet she would take straight to the directors. More than 90 percent of the directors Donoghue and her team approached signed up.
“It was a more simplified and transparent deal structure,” she said. “We learned from independent filmmakers. … We need to think differently sometimes.
“Understanding deal structures and negotiations can make a big difference in accomplishing your business and creative goals.”
— John Ourand
Longtime NFL Players Association general counsel Richard Berthelsen started at the NFLPA as a young lawyer when there were only a handful of people on staff under former Executive Director Ed Garvey. Berthelsen served three NFLPA executive directors, and served as interim executive director himself after Gene Upshaw died in August 2008, holding the interim post until DeMaurice Smith was elected in March 2009. Berthelsen is scheduled to retire as general counsel, on May 15, exactly 40 years after he took a job at the NFL players union as a staff lawyer. He will continue as a senior consultant to the NFLPA. In a recent interview with SportsBusiness Journal labor writer Liz Mullen, Berthelsen reflected on his career and revealed that a book may be in the works to chronicle his experiences.
■ When you started at the NFLPA did you ever think you would be there 40 years later?
BERTHELSEN: No. As a matter of fact, when I was practicing law in Madison, Wis., Ed Garvey, who was executive director, talked to me about the major issue at the time, which was free agency. And he told me that the agreement was going to expire in 1974 and they were going to sue to stop the restrictions. And I took a leave of absence. And it was for three years. So I was naïve enough to think I could go to Washington for three years and get free agency and return to my law firm.
■ Why did you stay?
BERTHELSEN: I loved the work and the people I was working with and the fight was still very much going on. In fact, it was at that point, I realize now, years away from fruition.
■ What is the state of sports law when you started, versus now?
BERTHELSEN: That is a great question. I can remember when I started thinking there was no such thing as sports law.
BERTHELSEN: Yes. It would be like if you worked for a tractor manufacturer, there would be tractor law. Sports is the product. Thousands of companies make products and they are all bound by the same law. But over the years there have been exceptions to certain laws and interpretations of certain laws that are unique to sports. So I guess now I have to admit there is such a thing as sports law. Because as standard laws have been applied to sports, they have oftentimes been applied differently.
Berthelsen arrives for labor negotiations with the NFL in Washington in March 2011.
Photo by:AP Images
BERTHELSEN: For example, antitrust violations that are inherent in something like the draft because the labor exemption has been developed through sports law litigation, and the owners are exempt from that if they have a collective-bargaining agreement with the players. There is really no other industry in which you have anything similar to that. Even in the entertainment business, the movie business, actors don’t get drafted.
■ You have worked for three, well, four executive directors if you count yourself. How were they all different?
BERTHELSEN: Well, Ed Garvey was a real good educator. More than anyone in our history, I would think, he taught the players about how the NFL operated, the economics of the game and how the restrictions on them not only put them in an inferior position to the owners, but kept them from having their share of the revenue pie.
■ What about Gene Upshaw?
BERTHELSEN: Well, Gene was, I wouldn’t say the opposite of Ed, but Gene was such an accomplished player and such a great leader as a player that it was natural for him to come in. But his priority was finding out what the players wanted. In his first year, he took an exhaustive survey of the players and the No. 1 issue was free agency, so that is what Gene was dedicated to fighting for. His leadership style, because he was known to the players and the league, and well-respected by both groups, he was effective in a different way than Ed. Because of his playing experience, he was accepted as a guy with the right resources and the best one to lead for the players. He did that for 25 years and he was unquestionably the biggest factor in our historical success.
■ How would you describe Gene? Many people saw him as a towering figure.
BERTHELSEN: Well, that is kind of a misunderstanding of Gene, because when you think of someone who was a towering figure, you think of someone who was intimidating, but Gene was just the opposite. He was a very kind and caring man, despite his rough exterior. He truly cared about the players and he always put his own interests last.
■ And what about DeMaurice Smith? How is he different from Ed and Gene?
BERTHELSEN: Well, De Smith, I think has a lot of Ed Garvey’s characteristics. He’s an educator. He educated players on the importance of seeing their careers as businessmen. He increased the awareness level with the players, especially about what they were facing with the lockout. And he has been very good in involving the player leadership about what was happening at the bargaining table. And his emphasis on health and safety issues, I think, is one of the best things about his leadership.
■ And what about yourself when you had the job of interim executive director for a short period of time?
BERTHELSEN: Well, my highest priority was to make sure the players had an open and democratic way of choosing their next leader. And, as I said all along, it was important that they have someone they could have for the next 10 years. So that meant finding someone who would not only be able to lead but give them an ample period of time to continue leading.
■ What do you want to do now?
BERTHELSEN: I do not want to give too many specifics, but I want to continue to be involved. But people have said to me that not only should I write a book, I have to. When you look at it, I personally lived 40 of the 56 years this organization existed; it’s way over two-thirds. It’s almost, well, it is an obligation. What I would write would not necessarily be a best-seller, but it’s something that I would hope would serve as a means of educating future players and staff, and maybe even the media.
■ Do you have any regrets?
BERTHELSEN: Yes, and it would be this: I wish I would have done more to try to convince Gene to have better defended the NFLPA’s record when it comes to retired players. There is more misinformation out there about what the NFLPA has or has not done for former players than practically any other subject that I have dealt with. Gene’s record and his achievements, and then, De Smith, in turn, in terms of benefits for former players is second to none. And when we tried real hard to get Gene to give point-by-point responses to all of the false information, he didn’t want it to happen because he didn’t want to be in public conflict with the guys he played with.