The Year So Far

Volume 6 • Issue 6 • September/October 2020
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Playing Through the Pandemic

How lawyers are helping navigate the crisis

During the first two months of 2020, the realities of what has become the most significant public health crisis in modern history were only beginning to manifest in the United States. In the third week of January 2020, the first confirmed case of COVID-19 in the United States was reported out of Washington State. By the end of February 2020, the United States reported its first death from the disease. But beginning in March, and accelerating thereafter, things quickly changed. On March 11 the World Health Organization (WHO) declared the spread of COVID-19 to be a global pandemic. Meanwhile, economic activity began to shut down, schools went online, businesses either closed or moved to work-from-home status, transportation and travel were severely curtailed, and social gatherings were all but halted. Drastic and unprecedented changes likewise swept the legal profession. Throughout March 2020, large law firms instituted new work-from-home policies, some mandatory and some voluntary; law schools transitioned to online course work; courts closed; and corporate legal departments moved to remote work (for more, see “The Year So Far”).

On March 12, Major League Soccer, the National Hockey League, Major League Baseball, and many conferences and leagues throughout college sports suspended or canceled all scheduled athletic competition.

These challenges were perhaps no more acute than in the world of sports, a space often defined by close contact, heavy breathing, and tens of thousands of spectators cramming into venues. On the same day that the WHO declared a global pandemic, March 11, the National Basketball Association (NBA) announced it would suspend its 2019–2020 season due to concerns brought on by COVID-19. The following day, March 12, Major League Soccer (MLS), the National Hockey League (NHL), Major League Baseball (MLB), and many conferences and leagues throughout college sports suspended or canceled all scheduled athletic competition. NBA commissioner Adam Silver, himself a lawyer, published a letter that evening to fans that captured the general consensus of the many sports leagues that had suspended play, explaining that the decision was made “to safeguard the health and well-being of fans, players, everyone connected to our game and the general public,” and that they would return to play “if and when it becomes safe for all concerned.” The following day, President Trump declared the COVID-19 outbreak to be a national emergency.

In the six months that have passed since the WHO’s declaration of a global pandemic, organizations and individuals have adapted. Activities common before the early-pandemic shutdowns have been revived, albeit with substantial modifications, as many have adjusted to the realities of life during a global health emergency, including in the sports world and legal profession. All of this, of course, is occurring while the virus continues to penetrate all segments of society and a vaccine remains in the future. In this article, we explore how a segment of the legal profession has responded to the pandemic by examining how a sports organization and its legal counsel found ways to play through the pandemic. We look at how one league—Major League Soccer—navigated its response to the COVID-19 pandemic with the help of its lawyers and, from this context, how a major law firm, Proskauer Rose (Proskauer), handled its own operations all while managing to continue delivering quality legal work. In the end, we get a glimpse of what went on at the intersection of law and business during the chaotic spring and summer of COVID-19—and what lessons might carry forward.

The storm hits

“The whole world was trying to think about what to do,” says Mark Abbott, president and deputy commissioner of Major League Soccer. “The evaluation that we were all going through was, first of all, is it safe to play?”

On the evening of March 11, 2020, Mark Abbott was watching ESPN, catching up on the latest news from around the sports world. There would be plenty of news that night. The first story reported that something was happening in Oklahoma City, where the NBA’s Utah Jazz were set to square off with the Oklahoma City Thunder. Before long, the game was officially postponed—Utah’s all-star center Rudy Gobert had tested positive for COVID-19, the NBA’s first confirmed case. Then came the news that the New Orleans Pelicans and Sacramento Kings would not be taking the floor that night for their scheduled matchup either—one of the referees on site had just called Utah’s game two days prior. Questions swirled about what this meant for the players, the teams, the fans, and the league. Those questions were quickly answered or set aside by the next breaking headline: the NBA was suspending play until further notice. With little more than a month before its playoffs were scheduled to kick off, the NBA season came to an abrupt halt.

This unprecedented move amid an exploding public health crisis might have led many casual sports fans to be grateful it was not their decision to make. But Abbott is no casual sports fan—he is one of the top executives of MLS, a league of 26 teams that together represent the highest level of professional soccer competition in the United States and Canada. Abbott, who is also a lawyer, has been with MLS since the league’s founding. In 1991, as an associate at Latham & Watkins, he started working on matters related to the 1994 FIFA World Cup under soon-to-be MLS cofounder Alan I. Rothenberg. Initially, Abbott volunteered his time to work on the World Cup until he became an indispensable member of the team (and could actually bill his time!). Then, when he overheard Rothenberg on a call two years later talking about creating a professional soccer league as part of a deal to bring the World Cup to the United States, Abbott jumped at the chance to draft the business plan. He recalls hearing about the opportunity as a third-year associate:

Alan was on speakerphone and said he was looking for someone to help him write the business plan. I heard this and ran out the door, ran down four flights of stairs, and burst into Alan’s office. I said, “I’ll do it.” He goes, “You’ll do what?” I said, “I’ll write the business plan for the league.” He said, “Have you ever written a business plan?” I said, “No.” He said, “Do you know anything about soccer?” I said, “Yeah, I played when I was a kid … a little bit.”

Fast-forward 27 years and Abbott is now president and deputy commissioner of MLS after making stops as senior vice president of business affairs and the de facto general counsel of the league. Suffice it to say, no lawyer has been with the league longer than Abbott.

“When the history of this is written, it should be clear that at least in sports the private sector led,” says Joe Leccese of Proskauer Rose.

As he watched events unfold on the night of March 11, 2020, and mindful of the WHO’s announcement of a world health emergency earlier that day, Abbott could only conclude that continuing normal operations amid the escalating pandemic was, for now, likely impossible. The next day MLS commissioner Don Garber called a meeting with Abbott and the rest of the senior staff. “I think everybody recognized that there’d been a fundamental change,” says Abbott. He explains:

Before then, the whole world was trying to think about what to do. We, like everybody else, were continuing to move forward. The evaluation that we were all going through was, first of all, is it safe to play? People continued to think that it was, even while we were planning for any possibility. Up to that point, much of the public discussion had been about fans and stadiums, but then it became clear that it was also about player health and safety. Once everybody recognized that, there was no other choice but to shut down. In that sense, the decision to suspend was not complicated.

While MLS was making the call to suspend play, the league’s outside counsel, including Joe Leccese and his firm, Proskauer Rose, were facing many of the same mounting challenges in keeping up their own operations while still providing the legal services that clients like Abbott were going to need more than ever. On his way to becoming chair of Proskauer from 2011–2020, Leccese established himself as one of the top sports lawyers in the United States. When MLS hired Proskauer in the late 1990s, Leccese was on the team—and has been ever since, working closely with Abbott. At Proskauer, Leccese says, they had begun by the second week of February considering plans to adapt their work arrangements if the virus could not be contained in China. Like nearly everyone attempting to absorb the realities of COVID-19 in early 2020, Leccese admits he did not fully comprehend the magnitude of the crisis as it was first emerging. He notes, however, that the firm’s professional management team and networks, particularly in China, proved to be vital resources in preparing for what ultimately came to pass (for more, see “How firms made it work” below).

Unprecedented logistical challenges aside, MLS still needed its lawyers to advise and execute legal work. Leccese stresses that MLS’s decision to suspend, along with that of virtually all the other major sport leagues, was noteworthy in that it came in the absence of straightforward guidance and decisive action by official actors. While a plethora of rules regarding activity would eventually be promulgated, the initial decision for leagues like MLS to shut down was not the result of any formal governmental ordinance or obligation. “When the history of this is written, it should be clear that at least in sports the private sector led,” Leccese says. He continues:

Back in March, government health officials were still saying college conferences could play their basketball tournaments and other spring sports.  The same was true for professional sports. The 24-hour period when essentially all major sports shut down was a gigantic wake-up call. The New York State executive order closing all nonessential businesses did not go into effect until more than a week later. The sports industry and the private sector generally led in shutting down and getting their workforces sheltered at home. The government edicts and advisories then followed as the virus began to disseminate.

As Abbott notes, shutting down was a relatively straightforward—albeit highly consequential—decision. The same could be said of law firms with respect to closing their physical offices. As the medical community’s understanding of the virus developed, and as that information was disseminated, there was a point at which it was clear that the health and safety risks of in-person activity were too great, while too little was known about how to properly control for them. The decision had to be made. A far less straightforward decision—the what-if scenario that perhaps vexed sports leagues most as they shut down—was over how to eventually resume game play without a clear end to the pandemic in sight.

In and out of the bubble

As soon as the decision was made to suspend MLS game play, gears shifted to reopening strategies. “There were a number of things we were considering, but there were two big items,” Abbott says. “One, how are you going to ensure the health and safety of your athletes and participants? And, two, are we going to be able to get governmental approvals to play? There was a lack of clarity over that issue given the patchwork of jurisdictions that had a say over it.” MLS went after both items, leaning on its lawyers to come up with answers. First they needed to reconcile the still-developing consensus strategies to prevent the spread of COVID-19 with the realities of team sports. As Abbott explains, different professional sports came together informally to begin mapping out what it would mean to compete at the highest levels during a pandemic. The goal was to create a set of protocols that was comprehensive and rules-based while also informed by the latest medical knowledge—all in the midst of ongoing uncertainty.

“We were able to move forward because we had a combination of lawyers and medical advisers working on protocols,” says Abbott.

How did they get it done? Informed by Centers for Disease Control and Prevention guidelines, MLS relied on a collaboration between medical experts, who could offer scientific counsel, and lawyers, who are experts in procedures and rules. “We were able to move forward because we had a combination of lawyers and medical advisers working on these protocols,” says Abbott. “There was a lot of work done by the medical people from each league on the substance, and equally there was a lot of work by the lawyers translating all of that medical and safety guidance into a formal protocol.” Abbott stresses the importance of lawyers in the process:

Lawyers are trained to take complex problems and break them down into smaller problems, and then solve each one to solve the whole—that’s what lawyers are taught to do. You just look at an issue like testing. As a whole it is overwhelmingly daunting, so you attack each piece of it. We had some wonderfully talented people at MLS do that. We have a woman, also a corporate lawyer from Latham, our president and chief administrative officer, JoAnn Neale, who took over the entire testing program and learned everything there is to know about testing. She built our plan and the protocols. Without that, we would not be where we are.

From there, the work shifted to getting government approvals for those protocols. Initially, when MLS opted to hold all its games in a controlled environment within Walt Disney World Resort in Orlando—which also accommodates the NBA “bubble”—the process for government approvals was focused on a single location, albeit one with multiple levels of state and local health departments. The path to approval was as straightforward as obtaining government approvals during a pandemic could be.

“The task for our lawyers and medical advisers was to come up with protocols based on factors that didn’t even exist at the time, whether it was testing capabilities or timing,” says Abbott.

When you need exemptions in more than two dozen different jurisdictions, however, things get more complicated. “About a month ago, we left our bubble and returned to playing in our markets,” says Abbott. Here, again, the role of lawyers like Leccese was critical in navigating the complex, often inconsistent, set of rules. Abbott continues:

There, you really had to go jurisdiction by jurisdiction, present your protocols, and get approval to the extent they did not comply with whatever the local guidance was at that point. This process was led by our EVP and general counsel, Anastasia Danias Schmidt, who joined MLS in 2019 after 14 years at the NFL. Then it got really, really complicated because each state had its own set of quarantine requirements and travel restrictions. For example, we’re working through issues with Canada, where we have three teams, in terms of these cross-border restrictions that we have, quarantine restrictions in Canada, and how that impacts what we’re doing from a season perspective.

Despite the challenges, MLS has managed to return to playing outside the bubble in its various markets. What is most remarkable about the protocols that made this possible is that they were in fact conceived and drafted before it was possible to actually use them. “The task for our lawyers and medical advisers was to come up with protocols based on factors that didn’t even exist at the time, whether it was testing capabilities or timing or other factors,” says Abbott. “They had to operate in a world where we think it’s coming soon, even if we couldn’t execute right away. We are still dealing with challenges along the way, but that is how we were ready to move when factors like testing capacity began to catch up months after we first began to put our protocols together.”

Leccese offers an example from published reports about a different bubble—the one set up for the U.S. Open tennis tournament in New York—to emphasize just how challenging these arrangements can be for clients and counsel. “In that case, one of the bubble hotels was in Nassau County, right over the Queens line,” Leccese explains. He continues:

Even though New York State and New York City might have been prepared to allow participation by a player who had been exposed to someone who tested positive, but who did not herself have a positive test, her doubles team had to withdraw because the Nassau County commissioner, who had jurisdiction of the hotel, wouldn’t let her play. This was the number-one-ranked doubles team in the tournament. I wasn’t involved in this matter, but when Mark talks about a patchwork of jurisdictions, that’s just one small example of how you can run into issues.

Jurisdictional questions like these abound in all sports leagues trying to make the most of their newly restricted circumstances. Lawyers like Leccese are advising leagues as they navigate the volatility—all while trying to navigate the uncertainty themselves.

How firms made it work

As lawyers worked to draft the procedures and protocols that would help govern how players could return to their respective competitions, there was a need to operationally transform how that legal work got done in light of the pandemic. Law firms, legal departments, courts, and other legal employers faced many of the same challenges they were helping their sports league clients navigate. Again, Leccese stresses that many in the private sector were preparing for the impending outbreak of COVID-19 well before it was named a pandemic. Fortunately, there was technology—and in Proskauer’s case, people—in place to help it come together despite all the challenges.

“I can’t think of a single example where the remote work has produced a failure, a missed deadline, or an inability to deliver something to a client,” says Leccese.

Leccese gives a lot of credit to Proskauer chief operating officer Jonathan O’Brien for his proactivity in preparing the firm for the spread of COVID-19—even before COVID-19 was a reality. “Those who believe in the importance of professional managers in law firms should feel validated by the work of Jonathan and our professional staff in these extraordinary circumstances,” says Leccese. “A couple of years ago, when we were looking for a new COO, we did not go to a legal recruiter because we wanted someone who had never worked in a law firm. We wanted a manager that had experience in much larger businesses, really understood systems, and had a global perspective.” Before coming to Proskauer, O’Brien was global finance director at Boston Consulting Group, and before that he had spent years as chief operating officer for Fidelity Investments in Asia.

In retrospect, this last line in O’Brien’s résumé turned out to be a significant part of why Proskauer’s management was able to understand the size and scope of COVID-19 as early as it did. “Jonathan had lived in Asia during SARS, he had lived there during MERS, and he still has a lot of friends who live there now,” explains Leccese. “As early as January, he was saying, ‘This could really be something.’” Leccese believes that O’Brien’s insight combined with his management ability were critical in kicking off the firm’s response before the virus began its rapid spread across the country. He continues:

He said, “We have to start to prepare for this. I’ve lived this.” Then he would, over the following weeks, recount anecdotes that he was being told by friends who still lived in Asia. I started reaching out to some of our alums who either were in Asia or continued to have relationships there. There was a kind of drumbeat of, “This is all a lot worse than you understand,” but I don’t think any of us really understood the full severity of it. Jonathan started preparing us for a complete shutdown, probably by the second week of February. He made sure that every staff person had printers and computers at home. The lawyers all had the necessary equipment, but not every staff person did. By the second week of March, we had started to do periodic tests, where everyone would log on to the system remotely at the same time to make sure that our platform could handle it. He and our tech people just did an astonishingly good job.”

There were, of course, occasions where Leccese and his team had to get creative and go the extra mile to ensure their clients were taken care of. “There was one occasion when a client asked for something that went back decades and we didn’t have it digitized. I had to ask the security guard who was still at the office to go into my room, find it, scan it, and send it to me,” Leccese recalls. “And he did. It was really remarkable.”

“It has been remarkable to me how available people are now,” says Abbott.

At the same time, there were aspects of pandemic-era legal practice that were not so difficult of an adjustment as one might expect—including much of the delivery of legal services. For example, to lawyers already used to flying more than 100,000 miles each year, the notion of strictly “office” work fell away a long time ago. Their office was wherever they were when they needed to get work done. Meanwhile, transitions to virtual conferencing technology like Zoom, Webex, and others have reportedly been smooth (for more, see “The Year So Far”). As far as Leccese has seen, everyone—not just the lawyers but also the support staff, finance, accounting, IT—has been able to work remotely without a hitch. “One of the things that’s amazed most of us is how seamlessly our technology has worked,” he says. “Whether it’s the clients or the law firms that we’re dealing with, I think all of our people have done really well. I can’t think of a single example where the remote work has produced a failure, a missed deadline, or an inability to deliver something to a client.”

Beyond competence with software and time management, both Leccese and Abbott have found a connection between remote work and a general increase in people’s availability. “It has been remarkable to me how available people are now,” says Abbott. “I have had experiences where we would have committees of owners—these are some of the top business people in the entire world—and I’d be like, ‘Can you get on the phone with Zoom in the next five minutes?’ And they’d say, ‘Yeah, sure. Why not?’”

Leccese has seen the same dynamic playing out within his team. “Even while I’m the type that will always say, ‘I’ll come over and see you,’ or ‘Let’s talk about that thorny issue over dinner,’ in other situations, it’s actually easier to get work done because people are all at home,” he says. “If something urgent pops up and I need people to come together right away, I can usually get pretty close to 100 percent attendance. If we were in the office, people would be out to lunch, or at court appearances, or doing other things.”

Leccese and Abbott are hesitant to hail this as an unambiguous victory. “I don’t think this is a good way to operate permanently,” Abbott adds. “I don’t think this is true anymore, but early on I would say, ‘If we went back to the office right now, we would lose productivity.’ Because there’s no way you can replace the amount of just sheer time we’re spending on work now. I think that was a unique moment as people were trying to get used to this new environment.”

Setting precedent in unprecedented times

“We’ve done just fine for six months, but I will say that the human consequences are the one area that worries me in the long term if this continues for a prolonged additional period of time,” admits Leccese

When the WHO announced on March 11, 2020, that the COVID-19 outbreak had become a global pandemic, lawyers like Leccese were already midsprint in their preparations. And yet, as he concedes, he did not study pandemic law in law school. Indeed, the global spread of COVID-19 presents a crisis that is in many ways unprecedented. What experience is there to fall back on when the best comparison on offer is the Spanish flu pandemic of 1918? For Leccese, he drew some insight from his experiences advising clients in the aftermath of September 11 and through the Great Recession’s liquidity crisis in 2008. “This was profoundly different, but at the very least you learned from those events that crises can be deeper than you initially understand, and you just have to anticipate that they will be,” he says.

Some of these modes of thinking—and the resilience shown by so many in the face of rapidly evolving crises—can serve as useful tools even in a world where COVID-19 is no longer able to keep lawyers out of the office. There are some aspects of this new normal, however, that are less positive. What it means to work from home likely differs tremendously from senior partners to junior associates to support staff, and that concerns senior leaders like Leccese. People at all levels, but particularly more junior personnel, have had their living arrangements, families, and children’s education heavily disrupted. Some have suffered serious illness or loss in their families or close circles of friends, but not had the ability to fall back on the comfort of the in-person support that the workplace community often provides.

Beyond these core personnel circumstances, which are being felt by so many throughout the world, there are real career implications to the new digital-only workplace. “I think we’ve done just fine for six months, but I will say that the human consequences are the one area that worries me in the long term if this continues for a prolonged additional period of time,” admits Leccese. “I think we have done a good job of maintaining community, and I think we can do it for a while longer, but the ability of the most junior people to build their own relationships and therefore build their own careers—I just think you can’t do that if you work remotely forever.” (For more on wellness in the legal profession, see “Approaching Lawyer Well-Being”; for more on the impacts of COVID-19, see “The Year So Far.”)

The postpandemic norms for workplace dynamics, in the legal profession and elsewhere, are yet to be written. Some lessons and productivity gains from the massive 2020 work-from-home experiment may render new methods of working—even those with clear downsides, like the increased availability that further entrenches an “always on” culture—difficult to wind back. Surprisingly, Leccese expects that the older, more senior lawyers and professionals who were perhaps initially more inclined to view remote work with skepticism may ultimately be the most difficult ones to lure back to the physical office. If they already have significantly developed relationships and they now realize they can get work done just as efficiently from home, those senior lawyers may become a rarer sight in the office. But, as Leccese notes, “Those will be happy problems. It would mean that we’re all back.”

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The Year So Far Volume 6 • Issue 6 • September/October 2020

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