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Volume 21 No. 2
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NFL targeting roles of Doty and Kessler

If the NFL gets its way, this Thursday’s appearance in a Minnesota federal court — to contend that league media fees should flow even during a lockout — will be its last there.

While the public scrutiny surrounding next week’s likely expiration of the NFL collective-bargaining agreement largely centers on the league’s effort to win financial rollbacks from the players, the owners are just as intent on ending 18 years of federal judicial supervision of the labor agreement.

In fact, the NFL in its charge filed last week at the National Labor Relations Board cited the NFL Players Association’s insistence on retaining federal oversight as evidence that the union did not want to seriously negotiate. The union, the league wrote to the NLRB, “is conditioning contract proposals on the NFL’s agreement to a nonmandatory subject of collective bargaining, i.e. extension of the United States District Court’s oversight of this collective bargaining relationship.”

Since 1993, disputes like the media fee case between the NFLPA and NFL first go to a private judge called a special master, with the loser able to appeal to Minnesota federal judge David Doty. The league, in renewing the CBA five times since 1993, agreed each time to federal judicial intervention, but it now wants to terminate that model. That would end Doty’s supervision and the special master’s role, with the league and union presumably then needing to agree on a new dispute-resolution mechanism.

In addition to Doty’s future, bubbling underneath some of the vitriol hurled between the two sides over who really wants a lockout is the contention in league circles that the strategy favored by the union’s outside counsel is designed to solicit a lockout. From that could flow an antitrust action from players, which could in turn lead to a new round of federal supervision. Such steps could bring sustained involvement for Jeffrey Kessler, who has been the union’s outside counsel for more than two decades.

Kessler dismissed suggestions that he and his firm, Dewey & LeBoeuf, want anything more than what is best for players.

“My job is to help get a fair deal for the players, and I take my orders from DeMaurice Smith and the player executive committee,” Kessler said, referring to the union’s executive director. “Anyone who knows me knows that my sole interest is player welfare. Name calling is not going to help the parties get a deal and avoid a lockout.”

The league’s contentions about Kessler do not mark the first time that outside counsel has been one of focal points in the barbed dispute between the league and the union. The NFLPA has criticized NFL outside counsel Bob Batterman as a “lockout guru,” a reference to his role in advising the NHL ahead of its 2004-05 lockout and the subsequent cancellation of that season. Now, the focus by many within league circles has turned to Kessler.

Kessler is the trustee for what is called “the White class,” the group of players led by Reggie White who in the late 1980s sued the NFL for free agency rights. The CBA emerged out of the settlement in that case, in 1993, with Kessler working as the attorney for White and the other players. It’s unclear exactly what, if any, formal role that gives Kessler with the union, but he has long been an influential adviser involved in almost every special master case and Doty appeal. Kessler also is the outside counsel to the National Basketball Players Association and is considered a top sports labor attorney nationwide for athletes.

Doug Allen, a former top union executive, said Kessler’s White class role did not give him any vote on a new CBA. Kessler did not respond for comment on questions related to his White class role.

A top league source said under no circumstance would the owners sign a new deal with extended federal oversight. However, if union leaders are successful with an antitrust claim, that could force the league’s hand. That same path in 1989 ultimately led to the 1993 deal and the entry of Doty as the main arbitrator of disputes.

The NFL has twice sought to have Doty removed, the last time two years ago, in alleging he is biased in favor of the union. Doty and then an appeals court turned the league down.

The union believes the league negotiated undervalued TV deals in order to secure pledges that the money would be available even without games, though the NFL would have to compensate the broadcasters. The special master sided with the league by allowing the TV agreements, though he did award $6 million to the union for a timing issue in how fees were allocated. If Doty were to overturn the special master’s decision, the league would be unable to tap into the $4 billion the league is set to receive.

The NFLPA has asked Doty to decide by March 3, the last day of the CBA. The union could, however, argue that even absent a CBA, because Doty also oversees the White settlement, which arguably governs antitrust issues between the parties and does not expire with the CBA, his role should continue beyond Thursday.