The Am Law Daily reported last month that tax filings made by the National Football League and its collective bargaining arm, the NFL Management Council, show that the league paid its outside lawyers at Akin Gump Strauss Hauer & Feld, Covington & Burling, and Proskauer Rose a combined total of at least $15 million during its 2011 fiscal year, a 12-month span in which the NFL waged a fierce labor battle with the union representing players.
At the time, we could not compare the NFL Players Association’s legal spending for roughly the same period—April 1, 2011, through March 31, 2012—because the relevant union tax filing was not yet publicly available. In fact, there was some speculation that the tax filing—as well as a separate filing required by the U.S. Department of Labor covering the period in question—would never materialize given the NFLPA’s decision to disband prior to filing an antitrust suit against management amid the lengthy lockout that preceded the completion of a new labor pact in July 2011.
This week, however, The Am Law Daily obtained copies of the two union filings, which contain detailed information about the NFLPA’s spending on in-house and outside counsel during the collective bargaining standoff. (The union’s Form 990 tax filing covers the period from March 1, 2011, through February 29, 2012. Its LM-2 filing meanwhile, covers the period from July 26, 2011, through February 29, 2012, when the NFLPA’s rank and file voted to decertify the union.)
The NFLPA’s tax filing shows that all of the union’s top five expenditures on outside independent contractors went to law firms. Leading the way, with nearly $6.1 million in fees earned for serving as the union’s lead antitrust and outside counsel: Dewey & LeBoeuf, the now-defunct firm whose former global litigation chair Jeffrey Kessler—now head of the antitrust practice and cochair of the sports law group at Winston & Strawn—played a major role in the labor negotiations.
Next up: Weil, Gotshal & Manges, which, like the pre-implosion Dewey, has long advised NFL players and was paid more than $1.3 million for its work on the union’s behalf in 2011.
Gibson, Dunn & Crutcher—whose appellate cochair, Theodore Olson, was tapped by the NFLPA to square off against the NFL’s lawyers from Boies, Schiller & Flexner, Covington, and Paul Clement’s conservative bastion, Bancroft—is the third Am Law 100 firm on the union’s outside expenditures list. The firm earned more than $2.6 million for its litigation efforts on behalf of the NFLPA in 2011.
Latham & Watkins—where NFLPA executive director DeMaurice Smith once was a partner—continued a trend The Am Law Daily identified last year, picking up a substantial amount of work from the union in 2011. The NFLPA’s Form 990 for the year shows Latham receiving nearly $4.1 million from the union.
Rounding out the top five: Washington, D.C.’s Groom Law Group, which primarily handles employee benefits matters and was paid $913,367 by the NFLPA during fiscal 2011, according to the union’s Form 990.
The union’s LM-2 form, meanwhile, shows that Patton Boggs, which mostly handles lobbying work for the NFLPA and where Smith was also once a partner, was paid $238,985 during the roughly seven months covered by the filing.
The LM-2 also shows the NFLPA making payments to a host of other firms, including Minneapolis-based Berens & Miller ($179,530), Briggs and Morgan ($117,646), and Lindquist & Vennum ($15,150); Philadelphia’s Willig, Williams & Davidson ($57,553); Boston’s Hemenway & Barnes ($44,951); Madison, Wisconsin–based Garvey McNeil & Associates ($35,000); Fulbright & Jaworski ($28,153); Finnegan, Henderson, Farabow, Garrett & Dunner ($24,517); McDonald Hopkins ($22,375); O’Melveny & Myers ($7,705); San Francisco’s Altshuler Berzon ($7,637); and Bethesda, Maryland–based Bregman, Berbert, Schwartz & Gilday ($6,084).
Berens & Miller, Briggs and Morgan, and Lindquist & Vennum all handled collective bargaining–related litigation for the union against the NFL. Fulbright, as first reported here a year ago this week, was retained by the NFLPA to advise players in the controversial  "Bountygate" probe centered on the New Orleans Saints that was ultimately resolved in December.
The NFLPA’s LM-2 also reveals the partial salaries and compensation packages for its in-house legal team, although the document does not include any monies that may have been disbursed to individuals following the decertification vote.
Those listed in the document include vice president of business and legal affairs Ahmad Nassar ($223,779); associate general counsel Heather McPhee ($215,194); deputy managing director Tuaranna “Teri” Patterson ($154,534); former staff counsel Arthur McAfee III ($147,781); staff counsel Todd Flanagan ($104,616); public policy counsel Joe Briggs ($73,45); and staff counsel Sean Sansiveri ($61,495).
While payments to the NFLPA’s top executives are also included in the LM-2, the union’s tax filing provides a more complete picture of their compensation packages. Smith, who was elected to lead the NFLPA in 2009, was paid nearly $3.5 million in 2011, according to the union’s Form 990.
Richard Berthelsen, who retired about a year ago after 40 years with the NFLPA, most of which as its longtime general counsel, was paid a little more than $1 million. Thomas DePaso, a former player who was named to succeed Berthelsen as the union’s in-house legal chief last year, received $764,882. Rounding out the NFLPA’s top legal ranks: former Patton Boggs partner and current union COO and managing director Ira Fishman (nearly $1.5 million) and senior staff counsel Timothy English ($517,590).
Though March Madness always seems to be a busy time for Schiff Hardin’s Gregory Curtner, that’s especially true now that he counts the Indianapolis-based National Collegiate Athletic Association as one of his largest clients.
Now one of the NCAA’s go-to outside lawyers, Curtner first began handling legal work for the national governing body for college sports about 15 years ago thanks to a relationship with the organization’s longtime general counsel, Elsa Cole, which dates back to his tenure at his previous firm, Miller, Canfield, Paddock and Stone.
Prior to becoming the NCAA’s first in-house legal chief in 1997, Cole served as general counsel at the University of Michigan, a Curtner client. Upon joining the NCAA, Cole found the organization mired in litigation over restrictions on the earnings of entry-level assistant coaches. In 1998, she replaced the legal team that had been handling restricted-earnings cases for the NCAA and hired Curtner and Alan Salpeter, a current senior litigation counsel at Kaye Scholer in Chicago who previously spent 35 years at Mayer Brown.
Since then, Curtner says he has handled about 30 to 40 other cases for the NCAA. (After a few setbacks at the appellate level, the NCAA eventually agreed to pay $54.5 million in an out-of-court settlement with the entry-level coaches in 1999.)
A University of Michigan alum and self-described “Wolverine at heart,” Curtner currently serves as head of the antitrust and trade regulation group and sports practice at Schiff Hardin and works out of the firm’s offices in New York and Ann Arbor. He and a team of lawyers joined the firm last year in a high-profile lateral move from Miller Canfield.
“I spent 42 years at Miller Canfield, it’s a great firm,” Curtner says. “But I always knew that I needed to be at a national firm if I wanted to have a national practice.”
Even with Cole retiring in August 2010 and the NCAA hiring former Latham litigation partner Donald Remy to succeed her as the head of its in-house legal department, Curtner continues to frequently travel across the country to represent the NCAA in a variety of matters.
“Things always seems to reach a fever pitch in March,” says Curtner, noting how the general interest in his work peaks with the onset of the annual men’s college basketball tournament known to millions nationwide as March Madness.
As it happens, one of the matters near the top of Curtner’s docket involves a former March Madness hero, ex–UCLA basketball star Ed O’Bannon Jr., and the potentially landmark class action antitrust suit he brought against the NCAA in 2009. The issues in the O’Bannon case are complex—click here for an excellent case primer from SI.com—but the suit’s ramifications could forever change what it means to be an amateur athlete.
Curtner and fellow Schiff Hardin partner Robert Wierenga—who also joined the firm last year from Miller Canfield—are representing the NCAA in the case, while litigation boutique Keker & Van Nest is counseling codefendant The Collegiate Licensing Company. (Atlanta-based CLC is a trademark licensing and marketing subsidiary of private equity owned IMG Worldwide.)
The NCAA filed its brief opposing class certification last month in the O’Bannon suit, which is being litigated in federal court in San Francisco. O’Bannon, who is being represented by leading plaintiffs’ firm Hausfeld, has been busy using March Madness as a news peg to liken the NCAA to a cartel for the way it profits from allegedly uncompensated student-athletes.
Curtner is cautious about commenting on the ongoing litigation, but some individuals affiliated with the NCAA—including Big Ten Conference commissioner and attorney James Delany and USC athletic director Pat Haden—have recently chosen to speak publicly about what a loss in the O’Bannon litigation could mean for the future of college sports. To some, the outcome would be almost apocalyptic.
U.S. Senate records show the NCAA spent $150,000 on federal lobbying last year, with the media-shy Abe Frank and Edgar Burch directing the organization’s in-house lobbying team. That sum could grow if the organization feels its very existence is threatened by the O’Bannon litigation.
That case, of course, isn’t the NCAA’s only legal headache. The organization has also retained Curtner for a suit it filed in February against Governor Tom Corbett of Pennsylvania and others over legislation aimed at keeping in-state the proceeds from a $60 million fine levied against Penn State University as a result of a sex scandal involving former assistant football coach Jerry Sandusky. (Legal costs related to the Sandusky matter have cost the school at least $41 million, including about $8.1 million paid to former FBI director Louis Freeh and his new firm Pepper Hamilton, according to The Associated Press.)
The NCAA suffered further embarrassment earlier this year when an investigation into the University of Miami sports program’s ties to booster Nevin Shapiro resulted in $18,000 in payments to Shapiro’s lawyer Maria Elena Perez, according to sibling publication the Daily Business Review. The DBR notes that Perez herself has come under scrutiny from a federal judge in Florida.
Cadwalader, Wickersham & Taft business fraud cochair Kenneth Wainstein was hired by the NCAA to conduct an internal review, which resulted in the resignation in February of vice president of enforcement Julie Roe Lach, who approved the payments to Perez. Jonathan Duncan, a partner a Spencer, Fane, Britt & Browne in Kansas City, Missouri, was subsequently tapped to replace her on an interim basis.
Federal tax filings by the NCAA show that Spencer Fane was paid at least $3.5 million for legal work between 2006 and 2008. Miller Canfield was paid at least $17.6 million for its work on behalf of the NCAA between 2001 and 2007, according to the organization’s tax filings.
Major League Baseball’s 2013 season opened Sunday night, but the national pastime couldn’t avoid starting its schedule without another embarrassing episode involving performance-enhancing drugs.
The Miami New Times broke the news in late January about a local clinic known as Biogenesis that linked banned substances to several current players, including Detroit Tigers infielder Jhonny Peralta and injury-plagued New York Yankees star Alex Rodriguez.
Both promptly lawyered up, with Peralta hiring Cozen O’Connor partner Barry Boss, who heads his firm’s office in Washington, D.C., and Rodriguez turning to veteran Miami criminal defense lawyer Roy Black. The name of another high-profile player, Milwaukee Brewers outfielder and 2011 National League MVP Ryan Braun, also appeared in some of the Biogenesis records obtained by the New Times.
Braun claimed his name appeared in the clinic’s files because one of his attorneys—reportedly Christopher Lyons of Miami’s Lyons & Lurvey—had hired a consultant from the clinic as part of his ultimately successful appeal last year of an MLB-mandated suspension for alleged performance-enhancing drug use.
Batting cleanup for Braun in that proceeding was prominent sports lawyer David Cornwell, who joined Gordon & Rees in May 2012, according to our previous reports. Cornwell, who was hired last month by an NFL agent caught up in a controversial contract mishap, has said publicly that Braun is innocent of any illicit ties to Biogenesis.
That didn’t stop MLB and its lawyers from Proskauer Rose and Kobre & Kim from suing Biogenesis late last month to seek access to the clinic’s player records, according to the DBR. The suit came after the New Times declined to provide MLB with its own Biogenesis documents.
Williams & Connolly and San Diego’s Law Offices of Leonard B. Simon—run by an attorney who is also of counsel to leading plaintiffs firm Robbins Geller Rudman & Dowd—have taken the lead for MLB in another case filed against the league last year in federal court in San Diego by David Gonzalez, the father of Los Angeles Dodgers first baseman Adrian Gonzalez.
The elder Gonzalez, who is an agent in Mexico, is seeking to scuttle MLB’s system for signing Mexican players, which he says has prevented an 18-year-old client of his currently pitching in the Mexican League from signing a contract with the Boston Red Sox. (Rancho Santa Fe, California–based solo practitioner Stephen McCue is representing David Gonzalez and pitcher Daniel Pesqueira in the suit, which was first noted in December by Courthouse News, but covered more fully last month by Sports on Earth.)
Also getting into the litigation frenzy are the Yankees, who last month successfully sued StubHub to obtain a temporary restraining order barring the San Francisco–based online ticket reseller from operating a retail store outside Yankee Stadium. The suit is just the latest twist in the Yankees’s long-running war with StubHub over the company’s alleged attempts to undercut high ticket prices to see the Bronx Bombers.
Weil litigation partner Salvatore Romanello has taken the lead representing StubHub, a company cofounded in 2000 by entrepreneurs Eric Baker and Jeff Fluhr, who sold it to eBay for $310 million in 2007.
The Yankees, meanwhile, have turned to Boies Schiller name partner Jonathan Schiller, a seasoned litigator and—thanks to the fact that he played on the Columbia College men’s basketball team that won the 1967–68 Ivy League championship— is a member of Columbia University’s athletic hall of fame. (In the early nineties, Schiller’s law partner David Boies famously left Cravath, Swaine & Moore and formed his own firm in order to represent the Yankees, and the team has been a client of the firm ever since.)
StubHub isn’t the only company in the vicinity of Yankee Stadium finding itself in legal trouble. Bronx Parking Development LLC, which operates parking garages for the $1.6 billion facility built to replace the one Babe Ruth built, failed to make a $6.9 million payment due April 1 on more than $237 million in tax-exempt bonds, according to the New York Daily News.
The debt was issued by New York City’s Industrial Development Agency, which was advised on the bond offering by New York’s Hawkins Delafield & Wood, according to filings with the Municipal Securities Rulemaking Board. But the three garages operated by Bronx Parking haven’t generated enough revenue to pay down the bond debt, prompting the company’s efforts to restructure its obligations.
Citing a 2013 budget filed by Bronx Parking with the MSRB, Bloomberg reported last month that the company had agreed to pay $18,750 per month to Willkie Farr & Gallagher to serve as general bankruptcy counsel as it engages in discussions with creditors as a prelude to a potential Chapter 11 filing.
Finally, in yet more legal-related Yankee news, the team’s star second basemen, free agent-to-be Robinson Cano, fired his superstar sports agent Scott Boras—a former associate at a Dykema Gossett predecessor firm—Tuesday and announced he would sign with Roc Nation Sports, a joint venture between rapper Jay-Z’s production company Roc Nation LLC and leading entertainment, sports, and talent agency CAA.
Cano is making $15 million this season—the last year of a $57 million contract—and is seeking a new long-term deal with the Yankees. Despite its historically profligate ways, the team has recently vowed to trim its exorbitant payroll. Yankees president Randy Levine, a labor and employment senior counsel with Akin Gump Strauss Hauer & Feld in New York, said Tuesday that he hoped Cano would remain in pinstripes.
It was unclear as of Wednesday, which lawyers, if any, helped forge the partnership between Roc Nation and Los Angeles–based CAA.
Michael Rubel, who became CAA’s first general counsel after joining the agency in 1997 following a stint as managing partner of California firm Del, Rubel, Shaw, Mason & Derin, did not immediately respond to a request for comment. Rubel played a key role in a 2010 deal that saw private equity firm TPG Capital take a 35 percent stake in CAA, which was advised on that transaction by Wachtell, Lipton, Rosen & Katz, according to our previous reports.
Jennifer Justice, general counsel for Roc Nation, is on maternity leave and was unavailable for comment about the deal with CAA on Tuesday. An email message sent to her assistant was not immediately returned.