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The man in Balsillie's corner Add to ...

After half an hour of sparring in a Phoenix, Ariz., courtroom last week, lawyer Jeffrey Kessler finally got Gary Bettman right where he wanted him.

The National Hockey League commissioner was on the stand defending the league's plan to buy the Phoenix Coyotes out of bankruptcy protection - and keep the team out of the hands of wireless magnate Jim Balsillie, the co-chief executive officer of Research In Motion Ltd.

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Mr. Kessler, who is acting for Mr. Balsillie in the case, heard Mr. Bettman claim the league didn't intend to profit from the deal. The discussion then turned to a "relocation fee" of up to $195-million (U.S.) demanded by the NHL and payable by anyone who wanted to move the team to a new city:

Mr. Kessler: "Is it true the creditors get nothing [and]the league would keep it all?"

Mr. Bettman: "The relocation fee? Yes."

In the battle of egos and chequebooks now unfolding in the court, Mr. Kessler is playing a key - if somewhat unusual - role. Chapter 11 bankruptcy protection isn't his bailiwick, after all; he's an antitrust litigator with a large sports practice in a field that, owing to collective ownership of the leagues by the teams, seems ripe for legal tussles about competition - and the lack thereof.

In taking on Mr. Balsillie's case, Mr. Kessler is helping to turn a bankruptcy proceeding into a test case that could determine the NHL's right to decide who can be a member of its exclusive club.





A picture emerges of a lawyer who stands for aggrieved, if well-paid and well-financed, outsiders and athletes who want to challenge the professional sports establishment.

Mr. Kessler represented seven of the world's best poker players - including Howard (The Professor) Lederer - who sought to prevent the World Poker Tour and casinos from using their likenesses in poker video games. (The case was dismissed last year.) And as the lawyer for the National Basketball Association's players, he stood up for the Indiana Pacers' Ron Artest, whose November, 2004, slugfest with fans drew a 73-game suspension.

Stephen Ross, a Pennsylvania State University law professor specializing in sports and antitrust matters, says Mr. Kessler is "very smart, very aggressive." He calls him "a nice guy, when he's not litigating."

And litigation isn't always what's called for. As a union attorney, Mr. Kessler helped to negotiate the end of the 1998-99 NBA lockout, and he continues to work closely with players. He is representing the NBA and National Football League players' associations in their current collective bargaining negotiations with the leagues, an important role as contracts in all four major North American sports leagues expire in 2011.

Mr. Kessler is perhaps best known for arguing the case for National Football League halfback Freeman McNeil, who contested the NFL's Plan B free-agency system that had given teams the right to retain up to 37 players on their rosters if they matched another team's contract offer. The case, which Mr. McNeil won in a 1992 jury trial, helped players to become more mobile, and better paid.

"If you look at the cases I've done, it's about economic freedom, and personal freedom in free agency [for players]" Mr. Kessler said in an interview.

At the same time, Mr. Kessler hews closely to the facts at hand, and is reluctant to outline a legal philosophy. "It's all about the legal merits of the claim. I have no prejudice against sports owners."

While sports is just one part of his litigation practice, it gets the most attention.

"The legal issues are very similar. But the popular interest [in sports] affects how people look at it, including sometimes juries and judges," Mr. Kessler said.

And sports law is clearly something that motivates the lawyer. Mr. Balsillie's cause is something he can get behind because, as Mr. Kessler says, "I like complex matters, and becoming involved in causes that have great merit outside the courtroom."

One case that fit that bill concerned South African sprinter and double amputee Oscar Pistorius. Mr. Pistorius had been prevented from competing against able-bodied athletes in the 2008 Olympic Games in Beijing by the International Association of Athletics Federations, which said his artificial legs gave him an unfair advantage.

"We felt that there was this grave injustice against all handicapped athletes, of whom Oscar became the test case," said Mr. Kessler, who handled the case pro bono. Last year, they won at the Court of Arbitration for Sport, although Mr. Pistorius fell short of the qualifying time for the men's 400 metres.

Mr. Kessler's track record is not perfect. He represented a group of 14 former ownership partners of the Montreal Expos in their attempt to stop the move of the team to Washington by new owner Jeffrey Loria. The partners argued the move was the result of a conspiracy by Mr. Loria to devalue the Expos. Arbitrators ultimately approved the move.

Mark Routtenberg, one of the 14 partners and now CEO of Freemark Apparel Brands in Montreal, still praises Mr. Kessler today. "The guy is good. I thought he proved our case," Mr. Routtenberg said.

Brad Ruskin, Mr. Loria's lawyer, says simply that Mr. Kessler is a "talented, highly experienced litigator."

Those talents were in evidence last week, when Mr. Kessler joined Mr. Balsillie's fight for the Phoenix Coyotes. Mr. Kessler says he'd prefer to settle the case out of court, but that it has consequences beyond the fate of one professional hockey team - such as how leagues like the NHL control decisions on ownership.

He expects a decision from Judge Redfield T. Baum some time next week, and projects confidence about his case.

"It's very unfair that Hamilton has been denied an NHL team," Mr. Kessler said. "It's a wrong that needs righting."

 

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