By Christopher Deubert, Senior Writer
It was recently reported that NFL General Counsel Jeff Pash is planning to retire. Pash’s retirement is part of the inevitable and ongoing trend of legal titans from the most important era in sports law moving on.
Off The Field Contests
Between 1970 and 1996, players in the NFL and NBA engaged in extensive litigation against those leagues and their teams. The NHL was more of a bystander to the major cases, while MLB’s anomalous antitrust exemption (affirmed by the Supreme Court in Flood v. Kuhn in 1972), protected it from the issues being litigated in the other cases.
Specifically, beginning in the 1970s, players began to challenge the leagues’ restraints on player movement. The leagues had implemented various rules which restricted the ability of players to negotiate with and play for the club of their choice. For example, the NFL utilized the Rozelle Rule, named for NFL Commissioner Pete Rozelle, a unilaterally imposed rule whereby players could sign with other teams upon the expiration of their contract, subject to the Commissioner awarding players to the club which the player had left. The Rule had a chilling effect on player movement, as only four players changed clubs between 1963 and 1973. Restrictive uniform player contracts and player drafts were also subjects of legal challenge.
Integral to the players’ legal efforts was the growing status of their players unions, specifically the NFL Players Association (NFLPA) and National Basketball Players Association (NBPA). The unions set out to collectively bargain changes to these rules. They often did so in conjunction with lawsuits against the leagues.
The thrust of the players’ arguments was that the leagues’ policies violated antitrust law. They argued that it was illegal for the teams – competitors in a labor market for the players’ services – to come together and agree upon rules which restrained player choice and wages in that market. After some initial losses, the leagues’ arguments evolved to seek protection from the judicially created non-statutory labor exemption. The non-statutory labor exemption protects employers’ rules from antitrust scrutiny so long as they are collectively bargained with the employees’ union. The exemption recognizes that antitrust law generally must be subordinate to the goal of promoting peaceful and stable labor relations through collective bargaining.
Various intricacies of the non-statutory labor exemption, including most notably when it expired, were litigated during this time. The issues were generally resolved with the NFL’s settlement of the White litigation in 1993, NBA players’ loss in the Williams case in 1995, and the Supreme Court’s decision in Brown in 1996.
The litigation and eventual resolution of these legal issues provided a stable base for labor relations in professional sports today that is welcomingly almost boring.
Through all these cases, the attorneys on both sides were largely the same. And it is these attorneys that represent the battle-hardened core combatants of sports law history.
The League’s Legal Lineup
Pash was one of these lawyers. After graduating from Harvard University and then Harvard Law School, Pash joined the prestigious law firm of Covington & Burling LLP in 1980. Covington represented the NFL in all the above-referenced cases, as it had been the league’s primary outside counsel since the 1950s (and still is today).
Yet Pash was not the architect of the leagues’ legal strategy – that fell to Covington Partner Paul Tagliabue. Tagliabue was the NFL’s chief outside counsel before becoming its Commissioner in 1989. Tagliabue retired from the NFL in 2006 and returned to Covington, where he worked on a variety of interesting matters befitting his stature and expertise. Nonetheless, Tagliabue, at age 83, has understandably also now retired from legal practice.
On the NBA side, the league was regularly represented by the law firm of Proskauer Rose LLP. David Stern was a Proskauer attorney defending the league and its teams in a variety of litigation before joining the league in-house in 1978 and becoming its Commissioner in 1984. Stern passed away in 2020.
Stern’s partner in defending the NBA at Proskauer was Jeffrey Mishkin. Stern later hired Mishkin as the league’s Chief Legal Officer in 1993. Mishkin returned to private practice in 2000 at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP, another firm with a long history of representing sports leagues.
Indeed, Bill Daly, the current NHL’s Deputy Commissioner, got his career started at Skadden in 1990 and was involved in representing the NFL in the White litigation. Daly has been working with NHL Commissioner Gary Bettman since 1996. Bettman took that role after a stint as General Counsel of the NBA and beginning his career at Proskauer in 1977. Daly has long-been considered the NHL Commissioner-in-waiting, but that title may now belong to Jessica Berman, another former Proskauer attorney who was a long-time NHL attorney and is currently Commissioner of the NWSL.
To tie all that together, Daly was needed at the NHL in 1996 because Pash, who had had left Covington to become the NHL’s General Counsel in 1993, had accepted Tagliabue’s offer to move over to the NFL.
Going back to Mishkin, he retired from Skadden in 2022 and is now a prominent arbitrator in the sports industry, having recently presided over an arbitration concerning a dispute between the Arizona Cardinals and their former Vice President Terry McDonough.
The Players’ Bench
In all of the major litigations, the players were represented by the same attorneys at the same firm – James Quinn, Jeffrey Kessler, Bruce Meyer and David Feher of Weil, Gotshal & Manges. Quinn was at the forefront of the players’ rights movement and trained a generation of lawyers to continue the fight. Quinn retired from Weil Gotshal in 2017 and is now a mediator. Kessler left Weil Gotshal in 2003 and eventually ended up at Winston & Strawn, where he continues to be the preeminent players’ side attorney. Feher went with him while Meyer stayed at Weil Gotshal. Kessler is age 70 and, whenever he decides to hang it up, will likely turn over the sports practice to Feher and David Greenspan. For his part, Meyer eventually left Weil Gotshal to work at the NHLPA and MLBPA, and recently survived a challenge to his position as the baseball union’s top attorney.
Who’s Next?
Pash is now set to follow Tagliabue, Stern, Mishkin, and Quinn out of the legal limelight. While internal candidates are likely to be considered to replace him at the NFL (for example NFL Management Council General Counsel Larry Ferazani), most likely so will attorneys from Covington, Proskauer, and Skadden. It has worked in the past.
