Professional career
Kessler began working at Weil, Gotshal & Manges as an associate in the Antitrust Department [3] full-time in 1977, after working there as a summer associate in 1976. He became a partner in 1984. From 1976 to 2003, he was the lead counsel in various complex antitrust, sports law, and intellectual property (IP) law cases, including major jury trials. He represented a number of U.S. and international companies in criminal and civil investigations in the antitrust and trade areas and was part of the team that successfully defended Matsushita Electric and JVC against claims of a worldwide conspiracy in the landmark U.S. Supreme Court case Zenith v. Matsushita. [5] In 2000, Kessler won a complete jury acquittal of his client Panasonic in Jefferson Parish, Louisiana, in a case claiming over $1 billion in damages for an alleged fraud. He became regarded as a leading commentator on international antitrust law. [6] He also was the lead counsel in several IP cases involving frontier issues of IP law. [6]
Kessler became known as one of the most prominent sports lawyers in the United States as he became regularly engaged in high-profile sports litigation. [7] He litigated a number of landmark sports-antitrust cases while at Weil, including McNeil v. The NFL, which culminated in the antitrust jury trial that led to the establishment of free agency in the National Football League (NFL). [8] He also handled numerous other high-profile sports law cases during his time at Weil Gotshal, including for the NFLPA; the NBPA; the Arena Football League Players Association (AFLPA); the National Hockey League Players Association, the MLBPA; the NFL Coaches Association; Players, Inc.; the Women's Tennis Benefit Association; and Adidas. Kessler also represented various classes of NBA, NFL, AFL, and MLS players, and several professional leagues, including the North American Soccer League and United States Football League, and the cities of San Diego and Oakland and Alameda County, in groundbreaking sports law disputes. [7] He also successfully represented Latrell Sprewell in his controversial suspension arbitration. [9] [10]
Move to Dewey
In 2003, Kessler left Weil to join the law firm Dewey Ballantine. Dewey Ballantine later merged with the law firm LeBoeuf, Lamb and Kessler became a senior partner at the newly created "super firm" Dewey & LeBoeuf, where he was the chairman of the firm's global litigation department, co-chairman of the sports litigation practice group, and a member of its executive and leadership committees. [11] During his time at Dewey, Kessler continued to represent the NFLPA and the NBPA in major sports disputes, and also represented the National Invitation Tournament, [12] CAA Sports, Wasserman Media Group, SCP Worldwide, and did landmark pro bono work for South African Amputee Sprinter Oscar Pistorious and Castor Semanaya. [13] Both runners were successfully represented by Kessler and allowed to compete in the Olympics despite challenges from the International Association of Athletics Federations (IAFF). Kessler continued to negotiate the free agency/salary cap systems in the NFL and NBA on behalf of his player union clients, and he successfully represented Michael Vick [14] in his roster bonus arbitration, Plaxico Burress in his signing bonus arbitration, and numerous other players in successful arbitrations and "special master cases". [15]
Kessler was a lecturer in law at Columbia Law School, where he taught a course on complex litigation. He has written and lectured on a wide variety of antitrust, sports law, and related topics. [16] He published a new edition of International Trade and U.S. Antitrust Law, [17] a leading treatise on antitrust and trade law issues in a global economy, and was co-editor-in-chief of State Antitrust Practice and Statutes. [18] Kessler is a former council member and co-chair of the Publications Committee and chairman of the International Antitrust Law Committee, of the Antitrust Section of the American Bar Association (ABA). [19] He was also a member of the ABA's NAFTA Tri-National Committee and an adjunct professor of law at Fordham Law School. He was a founding member of the board of advisors of the Georgetown University Study of Private Antitrust Litigation. [19]
Move to Winston
In May 2012, Kessler left Dewey & LeBoeuf and joined the firm of Winston & Strawn. [20] Dewey had experienced mass partner defections in 2012 for a variety of reasons, and despite his best efforts in conjunction with several other of the firm's most prominent and successful partners to save the firm, it proved to be unmanageable. Thus, Kessler led a group of more than 20 other partners, over 40 associates, and a large group of professional staff with him to Winston, where he currently is Co-Executive Chairman. [21] In total, more than 75 people went with him from Dewey to Winston, including his entire practice.
Since joining Winston, in his most widely reported triumph, Kessler led the Winston team that secured a spectacular victory on behalf of classes of Division I college football and basketball athletes in their landmark antitrust challenge to the compensation restrictions maintained by the National Collegiate Athletic Association (NCAA) and its member “power conferences.” Following oral argument by Kessler, on March 31, 2021, the U.S. Supreme Court issued a unanimous decision in the Alston litigation affirming the team's “ground-breaking and historic” trial win in the Northern District of California and reiterating that the NCAA is not above the law. [22] The tremendous trial win came in March 2019, when Judge Wilken found that the NCAA was in violation of the antitrust laws by limiting the amount of compensation that college basketball and football players could receive, and issued a trial ruling in favor of the plaintiff athlete classes, which included an injunction barring the NCAA and its member conferences from limiting the amount of education-related compensation that Division I college basketball and FBS football players could receive. [23]
Following the Alston win and as his next step in protecting the rights of amateur athletes, a Kessler-led Winston team joined the follow-on House litigation as co-lead plaintiff's counsel. The student athlete plaintiffs in House allege that NCAA's rules limiting student athletes from profiting from their name, image, and/or likeness (NIL) violated antitrust law by prohibiting them from earning NIL-related compensation until July 1, 2021, and continue to do so by imposing anticompetitive restrictions via NCAA's current NIL policy. Plaintiffs seek monetary damages for previous denial of these rights and an injunction restraining the NCAA from enforcing current rules. [24] Most recently, a Winston team led by Kessler, along with Hagens Berman, filed another Alston successor litigation, Hubbard, which seeks triple damages for college athletes injured by NCAA restrictions on education-related compensation for collegiate athletes held to be unlawful in Alston. [25]
Rivaling Alston in notoriety, Kessler recently served as lead class counsel for the World Cup-winning USWNT players in their highly publicized action against the U.S. Soccer Federation (USSF), in which they contended that they have been denied their legal right to equal pay and working conditions to the members of the U.S. Men's National Team (soccer), who declared their support for the USWNT's position. The case, Morgan vs. USSF, received intense global media attention in light of the USWNT players’ achieving their second World Cup win, while still receiving a much lower rate of pay than their male counterparts. The players successfully resolved their claims for equal working conditions on April 12, 2021, and on August 15, 2022, the court approved the landmark equal-pay settlement Winston and the lead plaintiffs negotiated on behalf of current and former USWNT soccer players. [26] The settlement constituted a complete victory for the players, with the USSF agreeing both to pay an equal rate of pay going forward in all games, including the World Cup, and to compensate the players with $24M to redress the past discrimination. [27] This settlement received global attention and acclaim, including by President Biden, who tweeted, “This is a long overdue victory in the fight for equal pay. I’m proud of… @USWNT for never giving up—on and off the field. Now, let’s close the pay gap in every industry.” [28]
Adding to his antitrust wins on behalf of labor in the sports and entertainment industries a team led by Kessler defended Actors’ Equity Association (“Equity”)—a union representing actors in Broadway theaters—in the case Drabinsky v. Actor’s Equity, filed by a producer who was placed on Equity's “Do Not Work List” and alleged that his placement on the list constituted a group boycott in violation of Sherman Act Sections 1 and 2. [29] In April 2023, the team secured dismissal with prejudice of the antitrust claims against Equity on the grounds that its conduct was protected from the Sherman Act by the Statutory Labor Exemption. [30] This ruling's impact is important for all unions and labor groups facing antitrust claims as it confirms the broad protections unions enjoy when they act in their self-interest and not in combination with non-labor groups. This win was recognized by The American Lawyer with a “Litigator of the Week” Shout Out nod. [31]
Kessler has achieved other recent wins in significant antitrust cases, including (1) on behalf of Panasonic, sustaining Panasonic's efforts to oppose the motion of Indirect Purchaser Plaintiffs to achieve class certification in In re Lithium Ion Batteries Antitrust Litigation MDL [32] and (2) on behalf of NTN Corporation, successfully arguing on behalf of all defendants in the In re Bearings Antitrust Litigation, which is part of the In re Auto Parts Antitrust Litigation MDL—one of the largest series of antitrust cases in U.S. history—the only class certification motion heard by the court in any of the MDL proceedings, a win recognized by Global Competition Review as its “Antitrust Case of the Year.” [33] Kessler also secured a closely followed win for Avanci, a joint licensing platform for various wireless connectivity (2G, 3G, 4G) standard essential patents (SEPs) in cars, and its patent owner members, in defense of litigation filed by Continental Automotive Systems, alleging that Avanci and the various SEP owners violated Sherman Act Section 1 and Section 2 by allegedly only licensing SEPs to OEMs and not to component suppliers like Continental, and by allegedly failing to offer licenses on FRAND terms. [34] The Northern District of Texas dismissed plaintiff's complaint with prejudice, agreeing with Kessler's arguments as to a lack of Article III or antitrust standing. On June 21, 2022, the Fifth Circuit withdrew its prior decision (affirming dismissal on standing) and instead ruled in defendants’ favor by affirming the district court's decision that Continental had failed to state a claim under the Sherman Act. [35]
More recently, in March 2023, Kessler won a major Second Circuit victory for Relevant Sports, LLC, a sports promoter that organizes soccer matches in the United States involving professional teams from non-U.S. leagues. [36] The unanimous decision revived Relevant's antitrust litigation challenging a FIFA rule prohibiting official season professional soccer league games from being played outside of a team's or league's FIFA-designated country, and earned Jeffrey and his team a “Litigator of the Week” Runner-Up spot from The American Lawyer." [37]
Since joining Winston, Kessler has also continued to handle numerous disputes on behalf of the NBPA and NFLPA and the high-profile athletes they represent, including representing New England Patriots quarterback Tom Brady in successfully contesting at the district court level, a four-game suspension, imposed by NFL Commissioner Roger Goodell in connection with the “Deflategate” controversy. [38]
Kessler also led the team in a case that made national headlines in the United States for the NFLPA, scoring an historic victory for the NFLPA and NFL players Scott Fujita, Anthony Hargrove, Will Smith and Jonathan Vilma [39] in the so-called “Bountygate” controversy. The victory allowed the players to rejoin their teams after an arbitration vacated the suspensions issued by Roger Goodell for allegedly participating in a program which rewarded players for knocking out their opponents. [40]
Kessler’s representation of players’ unions continued through the NFLPA’s and the NBPA’s most recent collective bargaining negotiations, as well as through the COVID-19 pandemic, during which he represented the unions in negotiating their return-to-work agreements. [41] He also represented the MLBPA in defeating a preliminary injunction sought against the 2021 All-Star Game. [42]
Following up on his past pro bono representation of international athletes facing discrimination (Pistorius and Semenya), Kessler and a Winston team represented double amputee Blake Leeper in his Court of Arbitration for Sport (CAS) challenge to discriminatory rules against disabled athletes and succeeded in overturning the unfair burden which World Athletics (formerly IAAF) had placed on disabled athletes to prove that they did not have a competitive advantage due to their prosthetic devices. [43] Most recently, Kessler and his team have been representing Nigerian bobsledder Simidele Adeagbo in her CAS fight for gender equality in a pro bono case seeking to establish that Olympic sports must provide equal sporting opportunities to compete for male and female athletes. [44]
Rankings and Recognitions
Since joining Winston, Kessler has earned “Litigator of the Week” recognition by The American Lawyer for four of his impressive wins: (1) his March 2019 trial [45] and (2) his June 2021 unanimous U.S. Supreme Court trial victories for classes of college athletes in their landmark antitrust challenge against the NCAA’s compensation restrictions in the Alston litigation; [46] (3) his March 2018 defeat of the Indirect Purchaser Plaintiffs’ third attempt to obtain class certification in the In re Lithium Ion Batteries Antitrust Litigation MDL against Panasonic; [47] and (4) his September 2015 victory on behalf of Tom Brady and the NFLPA in the “Deflategate” matter. [48]
Kessler is devoted to supporting social justice. In June 2023, Kessler was honored with the AJCF Advocacy Award presented by the Auschwitz Jewish Center Foundation at their annual Gala. The award recognized Kessler as an ally and advocate in light of his longstanding commitment to social justice, fairness, and the public good and for his profound, impactful work to effect meaningful change for all. [49] Moreover, the Legal Aid Society presented Kessler with its 2019 Servant of Justice Award for his lasting impact on New York’s legal community, and his devotion to the protection of the economic and social justice rights of athletes and their communities. [50] Kessler was also honored by the Center for Family Representation, where he is a Board member, and by Columbia University, which presented Kessler with its John Jay award in 2016 to recognize Kessler as one of its most distinguished alumni. [51]
Kessler has also been recognized by numerous publications, including Chambers USA – America's Leading Lawyers for Business; [52] the Best Lawyers in America©; and Benchmark Litigation US which named him one of the U.S.'s "Top 100 Trial Lawyers" and a "National Litigation Star" for General Commercial Litigation and Antitrust (2017-2022). He is recognized by the Guide to the World's Leading Antitrust Lawyers and Who's Who of Competition Lawyers and was included in Super Lawyers, Corporate Counsel Edition (2009) as well as The Lawdragon 500 Leading Lawyers in America (2005, 2006, and 2008 through 2021) and Lawdragon 500 Leading Litigators in America (2006). Kessler was named as a New York Super Lawyer (2006 through 2021).
In the sports arena, Kessler has been named as one of "The 50 Most Influential People in Sports Business" by Street & Smith’s Sports Business Journal, a publication which also has named him one of the 20 Most Influential People in the NFL. In 2021, Kessler was named to Sports Business Journal’s list of 75 people who have grown the NBA’s business since the league was first established in 1946. [53] Kessler has been recognized repeatedly by Law360 as one of its “MVPs for Sports & Betting” and by The National Law Journal as a “Litigation Trailblazer” (2019) for his groundbreaking work in the sports arena.
