Jeffrey Kessler: The last line of defense for player rights - The Buffalo News

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Jeffrey Kessler: The last line of defense for player rights

NEW YORK – What does a king, one who fancies living encircled by a moat, do when his realm is under siege, his people attacked, his legacy threatened?

He could fire flaming arrows at the horde through the castle’s window slits, catapult diseased animal carcasses in their direction or dump boiling tar down the murder hole.

Or he could get totally medieval and summon Jeffrey Kessler.

Tom Brady and his queen, superdupermodel Gisele Bundchen, actually sold their moated fortress of a mansion last year to rap-music mogul Dr. Dre for $40 million. Brady’s Camelot life, nevertheless, carried on through a fourth Super Bowl victory and until the NFL ransacked him with allegations of cheating and a four-game suspension.

Then the NFL Players Association got Kessler involved and – for the umpteenth time – drove back NFL Commissioner Roger Goodell and the NFL’s attorneys to an embarrassing federal-court defeat.

Kessler is one of the most influential people in sports history, yet among the least-known by fans. Antitrust attorneys don’t sign many autographs, but his work has impacted the NFL season and the AFC East in a gargantuan way.

He’s the prominent reason Brady will be on the field Sunday against the Buffalo Bills rather than still suspended four games by the NFL.

Ralph Wilson Stadium almost certainly will quake with “cheater” chants for Brady and the loathed New England Patriots. As such, Kessler wouldn’t be too popular around these parts for springing Brady.

But U.S. District Judge Richard M. Berman’s scathing rebuke of the NFL helped all players. Imagine if Bills defensive tackle Marcell Dareus or running back LeSean McCoy was suspended four games without any direct evidence for an equipment violation.

Kessler would defend them, too.

“When you talk about where the NFL players have come from 1993 until now,” said kicker and 14-year NFL Players Association representative Jay Feely, “I don’t think there’s anybody who’s had more of a positive impact on NFL players and what we’ve achieved than Jeffrey Kessler.

“I include Gene Upshaw and DeMaurice Smith and anybody who’s been in charge of or worked with the NFL Players Association. Jeffrey Kessler’s probably had more of a positive impact than any of them.”

In a knickknack-filled corner office on the 45th floor of the MetLife Building in Manhattan, the 61-year-old Kessler demurred with a self-conscious smile.

“I would disagree with Jay on that,” Kessler said in a sit-down interview, his first in over a year. “I don’t put myself in Gene’s category.

“At the end of the day, I feel like I’ve been a good contributor with a lot of other people who’ve made strides for player rights.”

Kessler is an antitrust attorney on a scalding recent streak of high-profile sports-law victories. The Brady case merely was the latest.

Kessler has been giving leagues fits for 35 years. He won his first case against the NFL in 1982, squelching the NFL policy that prevented owners from investing in the North American Soccer League.

You may be familiar with other landmark developments for which Kessler played a significant role: the 1987 class-action suit that challenged the NBA’s salary cap; the 1992 jury verdict that junked the NFL’s Plan B free agency and brought about today’s system; the 2008 verdict over the International Association of Athletics Federations that allowed double-amputee Oscar Pistorius and future handicapped athletes to compete in the Olympics.

Kessler is the lead attorney on a lawsuit intended to detonate the NCAA as we know it and create an open market for college athletes through enhanced scholarships, benefits packages and cash.

He has represented individuals in notable cases involving Bill Belichick (for jilting the New York Jets to become Patriots coach), Latrell Sprewell (recouping $17.3 million of a voided contract after Sprewell choked Golden State Warriors coach P.J. Carlesimo), Michael Vick (preserving $16.25 million in guaranteed money the Atlanta Falcons denied after Vick’s dog-fighting disgrace) and New Orleans Saints players involved in the 2012 bounty scandal (suspensions overturned).

“It’s fair to say that, over the last two and a half decades, Jeff’s had a massive influence on many of the high-profile sports law cases in this country and internationally,” said Gabe Feldman, director of Tulane University’s sports law program.

“Jeff is part of history alongside figures like Marvin Miller and Don Fehr and Mike Weiner and other heads of players’ associations.”

Oh, by the way, Kessler also has won in front of the U.S. Supreme Court.

He was only 32 when he successfully defended electronics companies Panasonic and JVC against claims of a conspiracy to charge lower prices in the United States and take business away from Zenith. The case changed standards for lower courts in future cases.

A landmark victory

There is no persistent theme in Kessler’s office décor. On his walls hang Japanese scenes, courtroom sketches from the 1992 NFL free-agency case, an autographed Mickey Mantle photo, a framed “The Flash” comic book cover, and a signed photo of Jack Nicklaus and Tom Watson.

On the shelves are pictures of his two grandchildren, autographed footballs, more Japanese curios and a menagerie of action figures. Sports stars mingle with Han Solo, the Thing, Captain America, Yoda and J. Jonah Jameson.

Right above his computer is a photo of a haggard Clarence Darrow, poring through stacks of mail during the Scopes “monkey trial.” Just to the left is a lithograph Kessler looks to for inspiration.

Upshaw is blocking for Oakland Raiders fullback Mark van Eeghen. Upshaw, the Hall of Fame guard, later served 25 years as the NFL Players Association’s executive director.

“That’s Gene, someone who devoted his whole life to throwing his body in the path so somebody else could succeed,” said Kessler, peering up at the lithograph.

Another of Kessler’s favorite memories is propped in a bookcase. Upshaw is smiling and shuffling a deck of cards next to Kessler’s wife, Regina. They are playing poker while waiting for the verdict in the 1992 NFL free-agency lawsuit, filed as Freeman McNeil, et al v. NFL.

When informed the jury had reached its decision, everyone scrambled and left the pot behind. Somebody – still unknown – swiped the money from the table, but it didn’t matter. The jury was unanimous in striking down the NFL’s limited Plan B free-agency restrictions and opened the door for the subsequent Reggie White class-action suit to create the current system.

Since the McNeil victory, the average NFL player’s salary has risen from $489,000 to a little more than $2 million this year.

The complete package

Kessler never envisioned working in the sports world, let alone becoming among its most powerful men.

He came from Sea Gate, a Brooklyn community near Coney Island. His father worked in real estate; his mother was a homemaker. Kessler admitted his enthusiasm overshadowed his talents when he dabbled in basketball and baseball. Football was limited to the street.

Kessler grew up in what he called “the golden age of Marvel Comics.” He eagerly flipped through the colorful pages of “The Amazing Spider-Man,” “The Avengers,” “The Incredible Hulk” and “Iron Man.”

Kessler graduated from Columbia Law School in 1977 with a passion for antitrust law, a specialty that focuses on regulating economic competition to protect consumers from predatory tactics such as price fixing, monopolies and cartels.

His mentor, Wall Street powerhouse Ira Millstein, recalled the young Kessler as a perfect addition to the firm. Kessler was smart, relentless, ambitious and fun to be around.

“That’s an unbeatable combination for a lawyer,” Millstein said. “He was very anxious to be an important lawyer someday. It was written in the stars.”

The antitrust work kept crossing into the world of sports law with various cases against the leagues. Kessler eventually became a go-to resource for the players’ unions.

Kessler’s approach is captivating. He’s known for creativity, for finding new ways to solve problems. He credits Millstein for coaxing that trait out of him.

But Kessler’s also known for being an excitable orator with trouble taking a step back once he gets rolling.

“He’s very skilled at animating dry legal concepts,” said Brady’s agent, Don Yee. “Similar to an athlete or anyone who’s very good at their jobs, he can get into his own zone. You see a faraway look in his eyes.”

Regarding the NFL’s retroactive suspension of Adrian Peterson for child abuse, Kessler filed a contempt of court motion against the league. The move prompted U.S. District Judge David Doty to ask Kessler: “Jail time? Is that what you want? Do you want us to put the commissioner in jail?”

No, Kessler didn’t want to send Goodell to the slammer. But Kessler wanted Doty to make a ruling for future cases that the NFL cannot levy newly created punishments for old transgressions. His point had been made.

Feely’s first impression in 2002 was that Kessler was excessively forceful, perhaps too unyielding.

“Who is this guy, and why is he so agitated all the time?” Feely said of his initial thoughts. “Why does he just want to fight?”

Feely, as other athletes did over the years, warmed to Kessler’s ways because they were so damn effective in court and negotiations. Feely hasn’t officially retired from kicking, but he serves on the NFL Players Association executive committee.

At the beginning of the 2011 NFL lockout, Feely marveled at Kessler’s belligerence toward the league’s stances on key issues. Feely laughed when he noticed, as the labor dispute spiked in intensity, some of his original Kessler concerns creeping back in.

“Early on,” Feely said, “it was great from our perspective to watch him hammer away at the owners and hammer away at Roger Goodell and not allow them to say things that weren’t true, not allow them to put ideas forward that didn’t have merit or were nonstarters for the players.

“He can drive people crazy, though. When you want to get a deal done, you have to bring some other guys in usually because he’s a pit bull, and he’s going to fight tooth and nail for what he believes in.”

Win many, lose some

To read the Kessler biography on his law firm’s website, you would think his career has been a smooth dream. Winston & Strawn named him co-chairman Tuesday. He has won so many major cases. The Brady case continues to make headlines.

There have, however, been setbacks. Upshaw’s death at 63 from pancreatic cancer shook Kessler in 2008. There were suggestions that Kessler replace Upshaw as NFLPA executive director, but Kessler didn’t want to give up being a litigator.

Three and a half years later, Kessler’s professional world was bedlam. He was chairman of Dewey & LeBoeuf’s litigation department in 2012, when the global law firm filed for bankruptcy, the largest industry collapse in U.S. history. Three executives were indicted for fraud. Their trial has been going on the last four months.

The scandal didn’t professionally dent Kessler, who took 70 colleagues with him to Winston & Strawn. But the firm’s failure devastated him.

“That was a very unpleasant experience for everyone involved,” he said. “I felt tremendous sadness that it was going to hurt a lot of people, and it did. That was a difficult, stressful time.”

Kessler has been defeated in court, too. He has not won every case against the NFL.

“It only seems like he has,” said Feldman, the Tulane law professor.

The NFL won a case represented by Kessler just this month. A federal judge ruled for the league in the 2010 collusion case in which the NFL Players Association claimed there was a secret salary cap in what was supposed to be an uncapped year.

Other NFL victories over Kessler include upholding suspensions to Minnesota Vikings defensive linemen Kevin Williams and Pat Williams for performance-enhancing drugs (although the judge chastised the NFL for breaking a state law) and upholding Belichick’s contract with the Jets when the coach tried to resign. As a result, Belichick had to be traded to the Patriots for draft picks.

So Kessler isn’t the 1972 Miami Dolphins. He’s more like the 1985 Chicago Bears.

What’s even more impressive is that Kessler’s winning percentage is against all-star competition.

“The NHL, the NBA and the NFL all have brilliant lawyers on the other side of the table,” Feldman said. “There is so much money at stake that we are now seeing some of the best lawyers in the country involved in these cases.

“We’ve seen some of the heaviest hitters in the legal world, the best of the best.”

Kessler’s fearlessness is a crucial factor to overcoming opponents who make millions every time they snap their fingers. NFL revenues reportedly are around $10 billion a year, and it chalks up legal fees as the cost of doing business.

“The NFL is an extraordinarily litigious organization,” said Houston attorney and NFL writer Stephanie Stradley, who worked 10 years as an in-house counsel for oil companies Chevron and Marathon. “They are very, very aggressive litigants. They seem to make decisions that have little respect for how much it costs.

“It’s like fighting the federal government; they make the rules, and they have all the money.”

That’s why so many disputes turn into a full-blown “gates,” and both sides go to the mat almost instinctively. Spygate. Bountygate. Bullygate. Deflategate. Debates over the NFL’s discipline of Ray Rice, Greg Hardy and Peterson have dominated headlines, too.

Kessler has been involved in most of it and has won before multiple arbiters, often building on developments and admissions elicited from the NFL in previous cases.

He points to former NFL Commissioner Paul Tagliabue overturning Bountygate suspensions, former U.S. District Judge Barbara Jones wiping out Rice’s domestic-violence suspension for imposing discipline twice, Doty ruling for Peterson and arbiter Harold Henderson reducing Hardy’s domestic-violence suspension because the punishments were retroactive.

Then there was Judge Berman’s ruling to overturn Brady’s four-game suspension. Many legal pundits claimed there was no way the NFL would lose. The league is appealing.

“The one common theme,” Kessler said, “was the players won over and over again because, in each case, a different decision-maker said to the league, ‘You just can’t do this. You just can’t make up the rules.’”

Berman declared the NFL didn’t notify players that equipment violations could lead to player suspensions. The “rule of the shop” indicated the team would be fined and an equipment staffer possibly suspended. Feely testified before Berman that, while with the Jets in 2009, an equipment manager was suspended for using an unapproved kicking ball. Nothing happened to Feely.

Kessler, despite his importance, is anonymous enough to hear people sitting right next to him at a restaurant talk about one of his high-profile cases as if he’s not there. He was recognized by Patriots fans, of course, while on the Gillette Stadium sideline before their opening night victory over the Pittsburgh Steelers.

Kessler understands most fans of the other 31 NFL teams aren’t happy with the Brady ruling.

Next time, though, it might be their favorite player Kessler is defending like some medieval maniac.

“If you were wrongly accused of something and you knew that in your heart and all these people are writing stories assuming your guilt,” said Kessler, a “Game of Thrones” fan, “and you didn’t have a fair process to try to defend yourself, how would it feel?

“It’s the reason why we have laws in this country. Everyone deserves a fair process to vindicate himself.”

email: tgraham@buffnews.com

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