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In February nothing was going right for the Covington & Burling team representing the National Football League in a suit filed by Maurice Clarett. A star Ohio State University running back, Clarett was challenging the league’s ban on drafting players who have not been out of high school for three years. Southern District of New York Judge Shira Scheindlin ruled that by denying Clarett eligibility, the NFL had violated the Sherman Antitrust Act. Her ruling made the 20-year-old player eligible for the draft, and the NFL started making contingency plans to accommodate Clarett and others like him. Those plans weren’t needed. For the next two months, the lawyers, led by litigator Gregg Levy, helped the NFL pull off a come-from-behind victory — and cemented a relationship that dates back 40 years. Levy’s resume made him particularly qualified to handle the case — not just his 11 years representing the NFL, but all the way back to his first job as a kid growing up in Columbus, where he sold Cracker Jack and hot dogs in the stands at OSU football games. Perhaps his principal qualification for the Clarett case was his role in Brown v. Pro Football, a 1996 antitrust suit brought by players challenging the NFL’s decision to pay practice players the same salary as pros. In Brown, Levy argued and won his first case before the U.S. Supreme Court and, in doing so, established the case law for the Clarett decision. Covington is the NFL’s primary outside counsel among the handful of firms that it uses. Last fall Clarett’s lawyers filed their complaint the morning after NFL General Counsel Jeffrey Pash first met with them. Pash then called on Covington. From that point on, the case proceeded with the speed of a running back. At her first hearing, Scheindlin said she wanted to decide the case before the “combine,” an event every February where the NFL invites draft-eligible players to work out and be observed by scouts. During the next six months, both sides did their own kind of heavy lifting, producing a high volume of documents in anticipation of the judge’s deadline. After the judge ruled for Clarett in early February, Levy and his team entered into a second round of legal sprints. The Second Circuit U.S. Court of Appeals granted Levy’s request for an expedited briefing schedule, given the looming April draft. For the next 18 days, briefs were due in rapid succession. On the Monday before the start of the draft, the Second Circuit stayed the court’s ruling and blocked Clarett from participating in the draft. The following day Clarett’s lawyer, Alan Milstein, filed a petition with Supreme Court justice Ruth Bader Ginsburg, asking her to overturn the stay. She gave the NFL 24 hours to respond. “The process of turning around a response to the Supreme Court in 12 hours [was] a challenge,” says Levy. As Pash sees it, the appeals court’s final ruling on May 24 — on labor law grounds, rather than antitrust — will encourage student athletes to pursue “the full college experience.” Maybe they’ll learn what Covington and its client found: Sometimes the best offense really is a good defense. Helen Coster is a reporter with The American Lawyer magazine, a Recorder affiliate based in New York City.

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