Law prof gets handed a labor football

This past January, while half the country was huddled around the TV watching the Super Bowl and scarfing down Buffalo wings, David Berger Professor of Law Stephen Burbank was in sunny San Diego, taking it all in live.

“I attended as the guest of the NFL [National Football League] Players Association and the NFL Management Council,” he said. “I did not miss the commercials, or the weather in Philadelphia. It was 81, and I was happy to be sitting on the shady side of the stadium.”

How did Burbank get to be the NFL’s guest at Super Bowl XXXVII? By being named special master for disputes arising from the collective bargaining agreement between the NFL and its players, that’s how.

“I don’t know why I was picked,” he said. “I got a phone call out of the blue last summer asking if I was interested in the position. I said I was. I had interviews with lawyers for the players and the league, and then I was named in the fall.”

Pressed to speculate further, he offered this guess: “I imagine I was selected because of my experience in mediation and litigation in insurance cases involving asbestos manufacturers.”

Burbank specializes in “alternative dispute resolution”—settling arguments outside a court of law. There are two methods for settling—mediation, in which a third party attempts to get two or more parties to reach an agreement, and arbitration, in which the squabbling parties agree to abide by the decision of a neutral arbitrator. Burbank has done both and teaches both at the Law School.

Burbank had been involved in asbestos litigation as a mediator since 1985, when he was added to a pool of lawyers and legal scholars available to help solve disputes arising from an agreement that ended numerous lawsuits against asbestos manufacturers.

Like that agreement, the NFL’s collective bargaining agreement, adopted in 1993, is long and complex, running some 225 pages. The agreement came in the wake of a settlement that same year of an antitrust suit filed by then-Philadelphia Eagles player Reggie White. The settlement—itself 193 pages long—allowed NFL players to become free agents when their contracts expired.

Why all the fine print? “[These agreements are] intended to deal with a variety of issues, some of which are themselves complex. And the capacity of the English language to capture the details is limited.

“There are [also] numerous places where material is added with asterisks, which represent issues that were not foreseen at the time of the agreement.”

These detailed agreements usually mean plenty of work for skilled mediator-arbitrators like Burbank. “The most complicated mediation I have conducted involved some 50 parties,” he said. “In addition to group discussions, I needed to mediate individual settlements, which often required persuading parties who claimed financial distress to open their books to their adversaries while persuading their adversaries that by reaching for too much, they might in fact gain nothing.”

As special master, Burbank will do more deciding than persuading, for the job calls for him to render decisions rather than get opposing parties to reach agreement.

Because his appointment took place only last fall, Burbank has yet to hear an actual dispute. And even if he had, he said, he could not discuss it with us because of confidentiality requirements.

David Berger Professor of Law Stephen Burbank