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Volume 21 No. 1
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8th Circuit showdown: Common threads

Editor’s note:
    Friday’s legal showdown in St. Louis at the 8th U.S. Circuit Court of Appeals between the NFL and 10 players suing the league for antitrust violation pits two former George W. Bush solicitors general who are on opposite sides of the gay-marriage debate.
    The fate of the lockout hinges on whether the 8th Circuit will overturn a lower court’s decision enjoining the lockout. The court, in staying the previous decision, strongly suggested it would do so. But there are other dramas at foot, as well.
    The players are represented by Ted Olson, a well-known conservative lawyer who was solicitor general under President Bush from 2001-04. He recently argued against California’s ban on gay marriage and now finds himself opposed to management (the NFL) in this case. Additionally, Olson was joined in the California cause by David Boies, who argued the NFL’s case at the lower court.
    Representing the owners will be Paul Clement, who succeeded Olson as solicitor general. While he publicly has no position on gay marriage, Clement resigned from his firm in protest in April when it backed out of representing the U.S. House of Representatives in its Defense of Marriage Act case.
    SportsBusiness Journal takes a look at each lawyer below.

Clement: Quiet but vital for NFL

Among the coterie of high-profile, conservative lawyers, Paul Clement is one of the least well-known.

While his counterpart later this week, Ted Olson, has been a regular on the TV circuit and is open to talking about the NFL owners/players case, Clement is far more reserved.

Through the NFL, Clement declined to speak for this story.

“He is fairly soft spoken,” said Eugene Meyer, president of the Federalist Society, a conservative judicial think tank.
In mid-March, at the NFL’s annual owners meeting, the league’s four outside counsels briefed the news media. The session was dominated by perhaps the two most public names: David Boies, who argued for the NFL at the lower court that ruled to enjoin the lockout, and Bob Batterman, the lawyer who has advised the league since 2007. Clement said very little during that session.

Clement, however, may be the most important attorney in the group, which also includes Gregg Levy. His legal brief to the 8th Circuit arguing that the lower court’s ruling enjoining the lockout should be stayed won the day. Had the league lost that decision, the players would have held most of the leverage in the court and labor battle. Instead, the ruling in the league’s favor gave NFL owners a key victory.

The former U.S. solicitor general, who succeeded Olson in 2005, is known for his upstanding legal ethics. Earlier this year, when his law firm backed out of representing the U.S. House of Representatives in defending the Defense of Marriage Act, Clement quit his firm in protest.

“The court knows he is not pulling the wool over their eyes,” Meyer said of Clement’s sterling reputation.
Lanny Davis, a liberal political adviser, wrote after Clement was criticized in some circles for his decision to resign from his firm, “Paul Clement’s decision to resign from King & Spalding after the firm yielded to pressures from some in the gay community was a courageous decision.”

— Daniel Kaplan

Olson: No stranger to huge cases

Ted Olson, the attorney the NFL players hired to argue for them before the 8th U.S. Circuit Court of Appeals, is the same attorney who represented George W. Bush in Bush v. Gore, the landmark Supreme Court case that confirmed Bush as the 43rd president of the United States.

In 2010, Time magazine selected Olson as one of the most influential people in the world. Olson served as private counsel not only to President George W. Bush, but also to President Ronald Reagan, as well as serving those two presidents in high-level positions in the Department of Justice.

While much has been written about the players having an uphill battle in trying to convince two out of three judges in what is known as one of the most conservative appellate courts in the country to rule against the NFL, observers say Olson has the conservative credentials to do it.

“This is the best selection the players could possibly make,” said Bill Gould, former chairman of the National Labor Relations Board and a Stanford Law School professor. “It was a brilliant move by the players because it sort of checkmates the NFL’s move, which was to get [Paul] Clement.”

Clement and Olson are well-acquainted.

“He was my principal deputy when I was solicitor general and he was my successor as solicitor general,” Olson said. “He is an enormously good lawyer, a very talented individual and a wonderful human being.”

Legal scholars say Olson has a difficult task ahead in convincing the court to uphold a federal judge’s order to lift the NFL lockout because, in a decision granting the NFL a stay, two of the judges wrote that the NFL has shown it is likely to win on the merits. Olson said he has faced that situation before.

“I have had other cases where the court has rendered a decision that some have perceived as inconsistent or different than the earlier decision,” Olson said. “But that is our job as lawyers, not to accept something that has gone before if you don’t think it’s a correct interpretation of the law.”

In addition to arguing the Bush v. Gore case in 2000, Olson made national news in 2009, when he, along with prominent attorney David Boies, represented gay couples challenging California’s Proposition 8, which outlawed same-sex marriage in the state.

Boies, who represented Al Gore in Bush v. Gore, represented the NFL in arguing the case before U.S. District Judge Susan Richard Nelson, who granted the injunction.

Paul Cappuccio, executive vice president and general counsel of Time Warner Inc., has known Olson for decades and has hired him for legal work for Time Warner.

“Ted Olson is a uniquely talented person who is able to combine a legal argument with a moral passion argument and a political argument with a public relations presentation,” Cappuccio said. “So one of the reasons we hire Ted is precisely his skill in putting it all together. He is not the pinheaded appellate lawyer. He is an incredibly persuasive, incredibly articulate lawyer who can combine all the dimensions of an issue into a presentation.”

Olson represented gay couples in the case challenging Proposition 8 because he believed in their case. He said he believes in the NFL players’ case in this instance.

“I was very grateful for the opportunity to participate in this,” Olson said. “I think they are individuals who are dealing with an entity which has frequently been held to be a monopoly.”

— Liz Mullen