Photo by Laura Barisonzi.
Jeffrey Kessler liked sports – any sports – during a somewhat idyllic childhood near Coney Island, in Sea Gate, New York. He was an “enthusiastic athlete, not entirely talented,” he says, but he relished the competition.
What he was really great at was analyzing competition, an interest that budded as he went through Columbia Law School. He also was particularly taken with the nascent notion that you could create social change through the law – specifically the law of competition.
Thirty years later, the co-chairman of Winston & Strawn has played a starring role in revolutionizing the rights of athletes – making the competition more competitive, if you will. While the headlines shout about his work on behalf of Patriots all-star quarterback Tom Brady, Kessler himself is a much quieter presence, appreciative of the opportunity to work with union and league leaders to make sports workplaces for players more economically fair and safe.
Lawdragon: When did you decide to become a lawyer?
Jeffrey Kessler: I originally thought I would go into politics. As a teenager in the late 1960s, early 1970s, I was motivated by the anti-war movement and the civil-rights movement. Core values of the rights of the individual, due process, fairness and equality emerged from that era.
I wanted to go to law school because I thought it was an important education to get to go into government. But at Columbia, I concluded I actually wanted to be a lawyer. I realized that I was excited by legal issues and the case law. I discovered, in particular, that I liked antitrust law and it set me on a different path.
LD: Can you talk a bit about how you pursued this budding interest in antitrust?
JK: Antitrust was my first elective at Columbia, and it wasn’t my first choice. But as I started reading the cases and learning the principles, it captivated me both from an advocacy standpoint as well as an intellectual standpoint. After that, I took an advanced antitrust course, and did a summer internship for an antitrust professor working on his casebook.
I joined Weil Gotshal out of law school because I thought it was the best New York-based antitrust practice. Ira Millstein headed the practice there and became a mentor to me. That’s also how I got into sports work because Ira had one of the first sports antitrust cases. It was the Oscar Robertson litigation for the NBA players union. [Robertson was president of the union and challenged rules that restricted player movement between what were then two basketball leagues and with the NBA itself. It set the framework for today’s NBA free agency.] That case settled in 1976 and I arrived in 1977, so I started as a very young lawyer and was asked by Ira to do some of the antitrust work for the Players Association.
LD: That was really a novel antitrust client at that time. It must have been thrilling to work on.
JK: Robertson was the first successful use of antitrust for the players. The previous attempts had been unsuccessful and the Supreme Court had ruled that baseball wasn’t subject to antitrust because of a 1922 decision written by Oliver Wendell Holmes. Congress never changed it, the Court wasn’t going to change it on its own and nobody yet knew how important antitrust rights for players would become in all of the other sports.
LD: Did you find some threads of those values from the ‘60s and ‘70s in your work representing players?
JK: Sure. The player issues were very connected with the issues of racial equality, individual freedom and individual issues of due process. Those were very much issues that plagued professional athletes. They really had very few rights, uniquely, in the workforce because of the systems that the leagues imposed. They couldn’t choose who they could work for. They couldn’t choose where they lived – things most of us took for granted. Even the stars didn’t have those freedoms. Of course there were other important issues as well. A lot of sports had very large African-American populations, which connected these issues to civil-rights issues as well.
LD: Do you find fulfilling your ability to challenge the power of the leagues on behalf of individuals, as you did working on the Freeman McNeil case again the NFL in the early 1990s?
JK: It’s very satisfying, but it’s not really about my work alone. These were great teams of player advocates that were put together and I was proud to be among them. For example, Gene Upshaw was an unbelievable leader of the National Football League Players Association at the time of McNeil – and had the courage to do what no group of players had ever done before, which was to end the union so that it could not be used to block the players from asserting antitrust rights.
That means the players cut themselves off financially from dues check-off, which was, at the time, the financial lifeblood of the union. The players were willing to support this cockamamie idea that [former Weil and now Berg & Androphy partner] Jim Quinn and I presented to Gene Upshaw as to how killing the union could enable the players to use antitrust laws in their favor despite having lost a prior challenge. We said, “To have antitrust rights, you have to stop being a union,” which was a radical idea then.
It was the strength and character of Gene, Richard Berthelsen, Doug Allen, and the player leaders that were involved who were willing to risk it all to stand up to the league. Jim and I played our roles, but we were part of a great team, in the sports sense, that came together and was able to achieve this change.
LD: That’s an important distinction as you are always, for example, portrayed as being Tom Brady’s lawyer, when in fact you are representing Tom Brady as a member of the union.
JK: That’s right. And Tom’s case was very much about the rights of individual athletes as much as it was about the rights of Tom Brady. You know, Gideon v. Wainwright wasn’t just about the individual in the case. In a lot of these cases we are trying to create precedents that will protect players in general so that even the last player on the bench cannot be disadvantaged or exploited by the leagues. It’s very much a group mentality in terms of what we’re trying to achieve in many of these player cases.
That’s also the situation with the case we have now for the U.S. women’s National soccer team, who get paid much less by U.S. Soccer than the men’s national team even though they do the same work and have achieved far greater success. Yes, it will help these women, but they are engaged in this legal battle for equal pay for equal work primarily because they are trying to send a message and establish a precedent for women not just in sports but for women in the workplace generally. This case, like many of my sports cases, is very much connected to a larger issue than just the individuals who are involved.
LD: Sports antitrust is only half of your practice. Can you talk a bit about what you enjoy about antitrust work on behalf of corporate clients?
JK: I also get tremendous satisfaction out of the corporate side of my antitrust work. The issues there are very complex and often involve frontiers principles. One of my most important corporate antitrust clients is Panasonic, which was formerly known as Matsushita. The first case I was involved with for Panasonic was the Matsushita v. Zenith case, which went to the Supreme Court. The entire Japanese electronics industry was being unfairly attacked by a couple of domestic companies with massive antitrust conspiracy claims because they were more efficient and charging a lower price to consumers for quality products than the domestic companies. It was a perversion of antitrust principles that the domestic companies were asserting claims because, at the time, they couldn’t effectively compete, as being a superior competitor is neither an antitrust violation nor a bad thing for consumers. It’s actually what antitrust laws encourage. Yet this case went on for 16 years all the way to the Supreme Court and back. It was one of the first big antitrust cases I worked on and it helped establish an important precedent, which is still very influential in antitrust cases today.
The Supreme Court issued three very important summary judgment opinions in 1986 and Matsushita v. Zenith was one of them. The three cases together collectively established that summary judgment was appropriate in complex cases, including antitrust, where the plaintiff failed to come forward with admissible and significant probative evidence in support of the claims.
The claim against Matsushita and the other defendants – that they were lowering their U.S. prices from what they charged in Japan – was really the opposite of an antitrust claim. The Supreme Court’s willingness to dismiss that claim on summary judgment became not only an important ruling for Matsushita and the other Japanese defendants, but also greatly benefitted the consumers who reaped the rewards of that competition.
LD: What do you see as the lasting impact of your sports work?
JK: A lot of my core work in the sports area has been bringing competition principles into that area. Many of the cases I have been involved with have tried to overcome the idea that somehow sports is not really a business, that sports really isn’t subject to the normal antitrust rules. This is why my antitrust work became the vehicle that brought me into sports cases even though my sports work has, over the years, become more diverse. Antitrust was the core principle that I have fought for in the sports area.
History has proved that the more courts have applied antitrust principles to the multi-billion dollar sports business, the more those sports have benefitted, the more players have done better, the more teams and fans and sponsors have done better. Everyone has done better as a result of competition. We’re going through that same struggle now for Division-I college football and basketball players, where it’s very reminiscent of the player fights back in the 1980s and ‘90s . We are facing the same arguments for the college players all over again that if you allow competition principles to be inserted into college football and basketball for the players that no one will watch it anymore and it’s all going to be destroyed. It’s all frankly a bunch of nonsense, just as it was when those arguments were made by the NFL, NBA and other sports leagues in the past, but we have to win those battles all over again.
LD: What about any interests outside of work?
JK: I am completely devoted to my three grandchildren. They are nearly 5-, 20-months and four-months old. Two are on the West Coast, one is on the East Coast and I try to see them all the time. I’m a mediocre, but avid, golfer and a big movie buff.
LD: I read about the Patriots fans cheering for you when you went to a game at Gillette Stadium.
JK: That was the only time I’ve ever experienced having actual fans, at that particular opening game. I was on the sidelines with Demaurice Smith, the Executive Director of the union. It was a unique experience for a lawyer to have fans chanting your name. We usually get tomatoes, not cheers.