Legendary sports litigator Jeffrey Mishkin is about to change “courts.”
On Jan. 1, 2022, Mishkin will join Phillips ADR, which is led by former U.S. District Judge and NBA systems arbitrator Layn Phillips. The firm, with offices in California and New York City, provides dispute resolution services across industries.
Mishkin has played a crucial role in the growth of sports leagues, particularly the NBA, during his nearly 39 years as a New York licensed attorney. He served as executive vice president and chief legal officer of the NBA during the 1990s. In 2000, Mishkin joined Skadden Arps and has represented the NBA as its chief outside counsel.
Mishkin’s influence was apparent in Williams v. NBA, where in 1995 the U.S. Court of Appeals for the Second Circuit deemed the NBA’s salary cap lawful when borne through league-union bargaining. The cap plays an instrumental role in how the NBA and players share revenue. It also ensures that each team has a credible opportunity to win.
“Considering what the salary cap has meant for the league’s economic stability and competitiveness,” Mishkin said in a phone interview, “being able to uphold its legality is something I am very proud of.” He adds “We haven’t had a labor dispute since 2011. I think what’s happened is that the salary cap system works really well . . . it is a fair and durable way to promote competitive balance and to share league revenues with the players. When the league does better, the players do better.”
Mishkin also closely advised the NBA during the Donald Sterling saga. Before Shelly Sterling obtained control of the Sterling Family Trust and sold the Los Angeles Clippers to Steve Ballmer, NBA commissioner Adam Silver had suspended Sterling for life. Sterling’s racist comments resulted in threats of a player boycott and loss of sponsorships. The billionaire octogenarian had been involved in previous NBA controversies but none led to meaningful punishments. That all changed when Silver, who had been commissioner for only two months, took the dramatic and unprecedented step of permanently banning an owner. Sterling then sued the league, but with Mishkin advising, the NBA prevailed.
“It was extremely important,” Mishkin recalls, “to uphold the commissioner’s authority to do that, given that Mr. Sterling clearly did not share the most important and basic values of the NBA.”
Those who have worked with Mishkin are familiar with his talents in developing and executing legal strategies.
“Jeff brings tremendous energy, intellect, thoroughness, and decency to every problem he encounters,” NBA general counsel and chief compliance officer Rick Buchanan said.
Even Mishkin’s opponents laud his judgment and intellect.
Winston & Strawn’s Jeffrey Kessler, who recently guided the Alston class action to a historic 9-0 U.S. Supreme Court victory over the NCAA, is the leading sports litigator of this era. He has represented the players’ side in high-profile disputes and has known Mishkin for four decades. Most of that time, Kessler says, Mishkin has been “an adversary” though on occasion they have been on the same side, and in one instance Mishkin served as arbitrator.
“In each role,” Kessler maintains, “[Mishkin] has displayed brilliance as a sports lawyer and balanced judgment.”
Mishkin’s energy will now be directed to a new but familiar role: neutral dispute-resolver. While focused on his legal practice, Mishkin has been an arbitrator for more than a dozen years, including with the independent international Court of Arbitration for Sport. Dispute resolution will now be his main occupation.
“It’s a natural progression for me,” Mishkin believes. “I have been both an advocate and a neutral.”
That’s not to say Mishkin isn’t leaving litigation without important memories.
“I’ll miss walking into a courtroom and making an argument,” he concedes. “But I very much like the process of dispute resolution. I find it far more constructive than combative litigation.”
Mishkin’s new boss is looking forward to his arrival. “In sports terms,” Phillips said, Mishkin “has long maintained a ‘triple threat’ status as a trusted adviser, an advocate and a neutral . . . [he] is among the most distinguished and influential advocates in the sports industry.”
Buchanan sees Mishkin’s move as one that will capitalize on his skills—skills, Buchanan says, that have “earned [Mishkin] the respect of colleagues and adversaries.” Buchanan has “no doubt” there will be “great demand for [Mishkin’s] services in his new role.”
Kessler agrees, adding that he’s confident Mishkin will bring the same intellect and judgment that led to his success as a litigator “to bear as a mediator.”
Given the many types of legal disputes that involve athletes, leagues and sponsors, Mishkin should have no shortage of disputes to resolve. He assures he’ll be objective. “Once I take off my advocate’s hat, I can be fair, neutral and I hope constructive.”
While Mishkin will move to Phillips ADR, he’ll remain of counsel to Skadden through 2023.
“Skadden is a great firm and I’ve had a great run, but the time has come to turn over the sports practice to my colleagues Anthony Dreyer and Karen Lent, who are ready, willing and more than able.”