## Facts

- Professional football players sued the National Football League (NFL) and its member clubs, alleging the NFL’s “Plan B” right-of-first-refusal/compensation system unlawfully restrained player movement in violation of federal antitrust law.
- Plaintiffs sought damages and injunctive relief and moved to certify a class of roughly 250 players subject to Plan B during the 1989 season.
- Plaintiffs’ counsel (Weil, Gotshal & Manges) simultaneously represented the NFL Players Association (NFLPA) in separate litigation against certain professional players for alleged breaches of NFLPA licensing agreements.
- Approximately twenty players targeted in the NFLPA licensing suit were members of the proposed Plan B class, meaning counsel was pursuing claims adverse to some putative class members while seeking to represent the class in the antitrust case.
- Defendants argued this concurrent representation created a disabling conflict under Rule 23(a)(4) because class counsel could not provide undivided loyalty to the proposed class.
- Plaintiffs proposed redefining the class to exclude any current or potential defendants in the NFLPA licensing litigation.

## Issues

1. Whether plaintiffs’ counsel could adequately represent the proposed class under Federal Rule of Civil Procedure 23(a)(4) while simultaneously representing the NFLPA in litigation adverse to putative class members.
2. Whether the remaining Rule 23 requirements (including numerosity, commonality, typicality, and Rule 23(b)(3) predominance and superiority) were satisfied despite variations in individual damages and player circumstances.

## Decision

- The court denied class certification without prejudice.
- The court held that counsel’s concurrent representation created an actual conflict of interest that defeated adequacy under Rule 23(a)(4).
- The court rejected plaintiffs’ proposed cure of excluding the licensing-suit defendants from the class as inconsistent with protecting the interests of all affected players.
- The court found the other class-certification requirements were satisfied, including numerosity, commonality, typicality, and Rule 23(b)(3) predominance and superiority.
- The court allowed plaintiffs to renew the class-certification request after curing the conflict (e.g., by obtaining conflict-free counsel or otherwise eliminating the conflict).

## Legal Principles

- Rule 23(a)(4) requires that the interests of the class be fairly and adequately protected, which includes the loyalty and freedom from conflicts of proposed class counsel.
- A current, concrete conflict—where counsel is actively litigating against putative class members in a related matter—can independently bar class certification even if other Rule 23 elements are met.
- Courts may decline to “fix” counsel conflicts by redefining the class to exclude subsets of persons directly affected by the challenged conduct when the exclusion would sacrifice their interests to preserve counsel’s other representation.
- Differences in the amount of damages among class members do not necessarily defeat commonality, typicality, or predominance when liability turns on a uniform policy applicable to the class.

## Conclusion

The court denied certification because class counsel’s simultaneous representation of the NFLPA in litigation against some putative class members created an impermissible conflict under Rule 23(a)(4), while concluding that numerosity, commonality, typicality, and Rule 23(b)(3) predominance and superiority were otherwise satisfied and permitting a renewed motion once the conflict was cured.


Lewis v. Nat’l Football League, 146 F.R.D. 5 (D.D.C. 1992)