By Mark Maske
Washington Post Staff Writer
Sunday, November 21, 2010; 12:29 AM
NEW YORK - As Bob Batterman sits in his office 26 stories above Broadway, nothing about him seems particularly menacing. He is dressed in a sweater and slacks and talks calmly about the labor issues he and the NFL are facing. He mixes in a story about juggling a hearing on a significant NHL legal matter last summer with picking up his grandchild at Logan Airport in Boston during a family vacation. He tells of going to law school with Paul Tagliabue and sharing an office with David Stern as a young attorney.
There is more rancor when Batterman's name is brought up to some people in the NFL Players Association. Batterman is a prominent labor lawyer who represents the NHL and was involved in the negotiations that led to that sport's lockout in 2004 and 2005, which canceled an entire season.
Some of those associated with the football players' union portray the hiring of Batterman by the NFL's franchise owners three years ago as one of the signals that the league was more likely to seek a labor confrontation with the players next year than to participate in a peaceful round of bargaining.
"The players are acutely aware of his history and they know why the owners hired him," said George Atallah, the union's assistant executive director of external affairs.
Batterman calls that portrayal inaccurate.
"I have been very amused by the advertising," Batterman said during an interview last month at the New York offices of his firm, Proskauer Rose. "I've been with this firm for 44 years. I've been in the labor practice for 43 of those 44 years. . . . We have to work with and live with unions, not bust unions."
Batterman is a critical behind-the-scenes figure in a set of NFL labor negotiations that could produce the sport's first work stoppage since strikes by the players in 1982 and '87.
This round of bargaining is different not only because of the issues under negotiation, but also because there is a new cast of characters that includes NFL Commissioner Roger Goodell and DeMaurice Smith, the union's executive director. They're negotiating their first labor deal since Goodell succeeded Tagliabue, who retired as NFL commissioner in 2006, and Smith was elected last year to replace the union's late executive director, Gene Upshaw.Preferring successful talks
Batterman was hired as an outside labor counsel to the NFL in 2007. He also has represented Major League Soccer, and believes his bargaining record demonstrates that he prefers a successful negotiation to a labor conflict.
"I have been a negotiator of hundreds of collective bargaining agreements over the 40 years," Batterman said. "Of those hundreds, I could count on one hand, I think, the number of strikes. And if I'm not mistaken, and I've thought about this, two lockouts. Two-the NHL in '94 and the NHL in 2004. That's it. . . . You try to be a problem-solver, a deal-maker. That's how I make my living."
But the union remains convinced the owners are readying for a lockout.
"As DeMaurice Smith has said, the union has believed for some time the owners are headed toward a lockout," said Jeffrey Kessler, an outside attorney who works for the union. "I'm depressed that we're getting toward the deadline and so little progress has been made," he said, referring to the March 4 expiration of the collective bargaining agreement.
Kessler called Batterman "a very worthy adversary in labor negotiations," and said: "We always enjoy a good battle with Bob."
The league and union are negotiating on a wide range of topics, including a potential rookie wage scale; proposals by the owners to lengthen the regular season from 16 to 18 games per team; and blood-testing players for human growth hormone. But the core economic issue is how much league revenue should be devoted to player compensation.
The owners voted in May 2008 to exercise a reopener clause and end the current labor deal two years early, calling a 2006 settlement-which gave the players about 60 percent of total league revenues under the salary cap system-overly favorable to the union. This season is being played without a salary cap and the labor deal expires in March.
"Batterman or not, these were going to be difficult negotiations," said Gabriel Feldman, the director of Tulane University's sports law program. "Batterman is a tough negotiator, but Covington [& Burling, the firm that long has represented the owners] negotiators are tough as well. I think the ferocity of the fight or the possibility of a work stoppage is more a function of the differences between the two sides."A close-knit legal circle
Batterman grew up in New York. He attended law school at New York University and worked on the law review one year behind Tagliabue. He and Stern, now the commissioner of the NBA, started at Proskauer Rose on the same day in 1966. They shared an office initially and became partners together in 1974. Stern left the firm in 1978 to join the NBA, six years before becoming its commissioner. Batterman got his start in sports by serving as Stern's labor lawyer.
Another Proskauer Rose attorney, Gary Bettman, left the firm in 1981 to join Stern at the NBA office, then became the NHL's commissioner in 1993. Batterman was hired as Bettman's labor lawyer.
Batterman said the NHL was "forced into a lockout" in 2004. The franchises were losing about $200 million per year ($300 million a year, counting debt service) on a $2 billion business, according to Batterman, and the league urged Bob Goodenow, then the union's executive director, to "help us fix this," Batterman said.
"We said, 'If you make us wait until contract expiration, it's going to be a confrontation and we're going to have to get back more of those losses. Work with us,' " Batterman said. "We couldn't get him to work with us."
The lockout lasted through an entire season and ended with a salary cap included in a totally rewritten collective bargaining agreement, a copy of which Batterman pulled from a shelf in his office while discussing the negotiations.
"Bob Goodenow could have gotten, at three or four different points in those negotiations and lockout, better deals," Batterman said. "They kept getting worse and worse and worse because the finances were getting worse and worse. . . . He never thought it would happen, never thought the owners would hang together to cancel the season. And we warned him and we warned him and we warned him. He just didn't believe us."
Goodenow, whose tenure as executive director of the union ended in July 2005, declined to comment. Ian Pulver, an associate counsel of the NHL Players Association for 15 years who is now an agent, called Batterman "a loyal, dedicated worker for his employers." The real issue, Pulver said, is the wishes of the owners who employ Batterman.
"That's what it always comes down to, the collective will and strength of one side versus the other," Pulver said. "He's very good at that. That's the whole art of collective bargaining. He has significant experience in the socio-political dynamics of bargaining.
"He's a master at his trade. I am not saying he is always right or always gets what he wants. I am just saying the other side better be ready.
"The players must know their opponent and remain united. He knows where to push and where to pull. He will find the weak underbelly of his opponent and try to break it if they are not careful. He has a whole array of tools in his toolbox to achieve what he sets out to do.
"If there's a bunch of owners who don't want a lockout, he's not going to overrule them. That's the bottom line. He will know the pulse of his room and respond accordingly," Pulver said.Union-busting just 'hype'
Smith told reporters in St. Paul, Minn., last month that when the NFL owners "hired the same guy who locked out hockey . . . to be a part of this negotiation strategy for the first time, that's aggressive," according to the Minneapolis Star Tribune.
The NFL hired him in part, Batterman said, because he guided the NHL through its negotiations and lockout without legal complications. But that doesn't mean the NFL is seeking a lockout next year, Batterman said.
"That's hype," Batterman said. "No employer wants to shut down a business. No employer wants to shut down an almost $9 billion business, a business which we are not claiming is losing money, it's just not properly positioned economically for future growth.
". . . I understand the value that De is very much focused on the media and politics. That's a method of dealing with the negotiations. That's his choice. That's his style. So he tries to make an issue out of the fact I was the lawyer for the NHL in the lockout.
"But if my approach to life was to be a problem-causer rather than a problem-solver, I wouldn't have had a successful practice for 44 years representing unionized employers."
Batterman said it "absolutely" is possible that an extension of the NFL's labor deal could be negotiated successfully by March. This deal won't come together as quickly as the sport's 2006 agreement did, Batterman said. The final labor settlement between Tagliabue and Upshaw resulted from Tagliabue taking the union's last offer of those negotiations to the owners for a vote.
"I want to finish this," Batterman said. "Hopefully we'll be able to avoid a lockout. Nobody is looking for a lockout. But you know, the best way to avoid a lockout is to be prepared to lock out, okay? A union which thinks you're never going to do it, that you can't pull that trigger, isn't going to compromise reasonably where the compromises need to be made."