That Must Have Been Some Presentation

The NFL Players Association new executive director, DeMaurice Smith (left), “wowed . . . player representatives with an hour long presentation,” but prior to his election was “a relative unknown quantity in NFL circles,” according to a report by Sports Illustrated‘s Don Banks. Prior to his election, Smith was a “trial and litigation partner at Patton Boggs who concentrat[ed] in white-collar criminal defense and ‘bet the company’ tort liability trials.”

So, a white-collar defense attorney who was a relative unknown in NFL circles is now leading the NFLPA into an uncertain future that features a collective bargaining agreement that expires in 2011, a year without a salary cap in 2010 (under the terms of the current CBA), and an uncertain (at best) worldwide economic climate.

I don’t know that Smith wasn’t the best choice, but I do know that the other candidates — former players Trace Armstrong and Troy Vincent and sports attorney David Cornwell — had strong ties to the NFL. Armstrong and Vincent both are former NFLPA presidents. Cornwell represented several NFL players in a federal lawsuit against the NFL seeking an injunction preventing the NFL from suspending the players for violating the NFL’s drug policy.

I’m skeptical that this is the right time for the NFLPA to bring in an outsider. The NFLPA is only looking for a new executive director because of the unexpected death of Gene Upshaw, who led the NFLPA for twenty-five years. Smith is seemingly taking a hard line with the NFL on the upcoming negotiations and is already talking of “prepar[ing] for war” and “not go[ing] back” to a salary cap if the 2010 season is played without one. Hopefully, Smith’s presentation went beyond hard-line rhetoric and laid out a plan that will ensure the labor peace and economic prosperity that are Upshaw’s legacies. As a fan of the NFL (the Packers, not the Steelers, sorry Professor Schneider), I hope the players made the correct choice for their executive director.

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Law Professor Amicus Brief Filed in 7th Circuit ERISA Case

Today, as part of a group of law professors around the country with interests in the mutual funds and employee benefits area, I helped to draft and signed on to an amicus brief which asked for the Seventh Circuit Court of Appeals to grant rehearing en banc in the ERISA case of Hecker v. Deere & Company.  The case concerns an issue of tremendous importance for American workers’ retirements: the appropriate scope of a fiduciary duty under ERISA in the context of personal savings and mutual fund fees.

In Hecker, a 7th Circuit panel affirmed the decision of the district court of the Western District of Wisconsin, which found a group of employee-plaintiffs did not state a claim for relief under ERISA when their employer, Deere, allegedly did not provide a sufficient menu of mutual fund options for their 401(k) retirement plan accounts.  Although the brief argued in part that the panel inappropriately adopted a remarkably narrow interpretation of fiduciary duty that relied crucially upon an assumption that the underlying market for mutual funds is vibrant and competitive, my part of the brief involved the proper fiduciary standard for employers who run 401(k) accounts under so-called 404(c) plans.

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The Labor & Employment Curriculum

Back in the day, when I was at the law school, I had the opportunity to study Labor Law — union/management relations —  with Reynolds Seitz. It was the only “employment law” course in the curriculum at Marquette, and Marquette was quite typical of all law schools. I enjoyed the course very much and so, after my clerkship with Tom Fairchild, I became a management-side labor lawyer until I decided to move into law school teaching. The Dean at my first teaching post told me I would be teaching Torts and Labor Law, but that I had to make up two more courses.  So, I did.  One of them was a new course in Employment Discrimination Law. The area was relatively new, and I had been doing an increasing amount of it in practice. I saw it as interesting, important, and the wave of the future of employment law. I was shocked, however, to discover that at that time less than a handful of law schools had an Employment Discrimination course and that there were no published teaching materials. I had to assemble materials and have them copied and distributed to the students. It was a major effort, and I am glad that, as far as I know, no copies of my original efforts survived to embarrass me.  That challenge, however, became an opportunity. Employment discrimination law became a major focus of my scholarship, and I got several talented colleagues to work with me on several projects. First, we did a treatise, and then we got a contract from what was then Little Brown & Co. to do a casebook. Now published under the Aspen name, but still with the familiar red binding with black print, we are still at it. Our seventh edition was published last year, and we will be doing a supplement this summer. It is still an area that fascinates me and the law continues to struggle to achieve its primary goals of ending and remedying discrimination.

Across all law schools, more students now take Employment Discrimination than any other employment or labor law course. Channeling the union movement, Labor Law is now at risk of being dropped from the curriculum at many schools. Some of us console ourselves by claiming it is now a course in the history of labor law. This coming fall I will be teaching Labor Law at Loyola Chicago, where it has not been taught by a member of the regular faculty in the memory of living humankind. My plan is to try to combine both private and public unionization into one course, though I am not sure if I can pull that off. But combining the two areas reflects the strength that unions retain in the public sector that they lack in the private sector. Labor law will be, for the first time in a long time, in the news as a major political issue. Congress will consider amending the National Labor Relations Act with the Employee Free Choice Act. If enacted, that will allow a union to gain legal recognition by proof that it represents the majority of workers through signed authorization cards.

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