By Jarett Warner
One of the highlights of the Sports Lawyer Association’s annual conference is the Saturday morning Executive Directors and General Counsels’ Forum. On May 17, 2014, the Forums were held. The Executive Director’s Forum was moderated by Richard Berthelsen, former General Counsel for the NFL Players’ Association. The General Counsels’ Forum was moderated by the always animated ESPN Legal Analysis, Lester Munson.
Executive Directors’ Forum
Batting lead-off for the Executive Directors’ Forum was former player, Executive Director of the MLB Players’ Association, Tony Clark. Mr. Clark started off by remembering the late Michael Weiner, the prior MLBPA Executive Director. Mr. Clark emphasized how Mr. Weiner set an example for him and that Mr. Clark took it as his responsibility to ensure that Michael Weiner’s plan was realized.
Mr. Clark commented that the past 20 months had been a challenge as the MLBPA was carrying out Michael Weiner’s vision of core values of communication and education and in furtherance of this, visited every MLB over a 2 month period. Coming out of these meeting, Mr. Clark believed that there was uncertainty as to what lay ahead in 2016. When questioned what he meant by this, Mr. Clark explained that the uncertainties included the fact that no one would have expected that Michael Weiner would have been stricken by Cancer, questions as to whether the MLB commissioner would retire and what MLB and MLBPA would present at the bargaining table in 2016 when the CBA expires, including whether the “salary cap will be brought to the table.”
Mr. Clark also discussed the two on field issues that were recently changed—instant replay and home plate collision. He emphasized that these changes were made possible based on MLBPA’s visits to the players. It has been made clear to the players that these changes were a work in progress.
Following Mr. Clark, NFLPA General Counsel, Tom Depaso, discussed how the NFL and NFLPA are in the middle of a 4 year CBA, that the NFL is very healthy and revenues are projected to increase. When revenues increase, the salary cap also increases. Mr. Depaso commented that based on new television contracts that there would be a significant increase in revenue and the salary cap.
Mr. Depaso also discussed the importance of health and safety issues, which are non-negotiable. There have been meaningful strides, including the procedures for how in-game concussions are treated and the employment of independent neurological agents.
Mr. Depaso also discussed how the 2011 CBA dispels the notion that the current NFL players do not care about the former players. A few provisions he utilized as examples of this were how the legacy benefits to former players who vested prior to 1993 had increased, there was a newly created trust that increases every year, as well as educational components for the financial transition that recently retired players face.
Next up, NHLPA Executive Director Donald Fehr discussed how the NHL had had its longest lock-out since 2004-2005. He opined that this followed the pattern of all sports that owners felt they had nothing to lose in locking out the players. Mr. Fehr noted that once negotiations were completed and the games resumed, revenues increased due to new television contracts. Mr. Fehr also noted that NHL players now had a long term pension plan, something they never had before, and that due to the fact that there would be no payouts for 15-20 years, it was likely to become one of the fastest growing asset plans.
The theme of the presentation of the presentation of Ron Klempner, the Acting Executive Director of the NBA Players’ Association was things he didn’t need during the interim period. These included: (1) for NBAPA attorney David Kiefer to leave; and (2) to have to renegotiate a 6 year WNBA contract.
Mr. Klemper spoke about how last February, the NBAPA was hit with the termination of Executive Director, Billy Hunter. The NBAPA has retained a search firm to find a replacement and they have interviewed numerous candidates. The NBAPA wants the selected candidate to visit each team and make sure the players agree with the selection. In response to a question, Mr. Klempner denied that the NBAPA search for a new Executive Director had started all over again.
Mr. Klemper did not want to speak about Donald Sterling too much. However, he noted that all of the NBAPA’s concerns have been addressed through Commissioner Adam Silver. Mr. Klempner stated that there was no specific timetable that the NBAPA wanted Sterling removed, as long as the NBA followed up and acted in good faith to carry this out.
General Counsels’ Forum
The NFL was represented by Adolpho A. Birch III, Senior Vice President of Labor Policy and Government Affairs. Mr. Birch discussed how the NFL had been focusing on the work place over the last several years. This included the proper questions to be asked of players at the scouting combine and the appropriate level of treatment of sideline reporters. Mr. Birch noted that the Jonathan Martin situation provided a renewed focus on the work place values of the NFL. The NFL was focused in driving home a culture change that the NFL is a league of respect and most recently will include the acceptance of an openly gay player, brought to the forefront by Michael Sam.
With regard to the concussion litigation, Mr. Birch discussed that the parties believed that they had developed a solution to provide a sufficient level of coverage for those former players who need it. Judge Brody wanted to make sure a proper formula was in place and the parties had been working with Judge Brody to ensure that she comprehended the data and that the parties were optimistic that she would approve the settlement.
MLB was represented by Thomas Ostertag, Senior Vice-President and General Counsel. Mr. Ostertag discussed the ongoing international efforts of MLB, including the good attendance for the two opening games of this season in Australia. He noted that television ratings were up and that the average ticket price was up 2%.
Mr. Ostertag also discussed the biggest offseason development- the expanded replay systems. He noted that replay had gone extremely well thus far and that it is a 3 year roll out program with refinement along the way. All replay decisions are made through New York. Thus far, there was on average 1 replay every other game, with 46% reversals.
Mr. Ostertag also discussed the ongoing litigations involving MLB, including the injunction of New Jersey’s institution of sport betting in Atlantic City and the litigation currently pending in state and federal court relating to the A’s attempt to relocate to San Jose.
NBA Senior Vice-President and Deputy General Counsel, Daniel S. Rube, discussed how the NBA is working with the NBAPA about player eligibility rules coming out of high school. Mr. Rube noted that from the NBA’s perspective, requiring an additional year of experience from the player enables teams to make better decisions on drafting players and players’ adjustment on and off the court.
With regard to the CBA, the NBA is finishing up year 3 of 10. However, each party has an opt out after the 2016-2017 season. There has been positive results under the current CBA as the NBA is making headway to making all 30 teams profitable and ensuring success to teams, regardless of the market size. Mr. Rube also noted that the NBA was seeing vast spending on all players and not just the stars. The top players’ salaries are terrific and the players throughout the league make a nice salary. He also noted that as part of the current CBA, there was a steady income to players from the time of their retirement from the league until age 50, when most regular pension plans commence.
Mr. Rube also discussed that the D (Developmental) League was increasingly become a tool for NBA teams. He also noted that the Westchester Knicks would soon be playing.
Finally, Mr. Rube was unable to discuss the Donald Sterling matter because as put by the moderator, the NBA is in “the eye of the storm.”
Jarett Warner is a sports law attorney at Havkins Rosenfeld, Ritzert & Varriale. He can be reached at Jarett.Warner@hrrvlaw.com
