SBJ/April 30-May 6, 2012/In-Depth

Berthelsen to write the ending to his career

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.

Really?
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
How so?
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.

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