Retired NFL stars reject settlement of their own licensing class action

Retired NFL stars reject settlement of their own licensing class action

By Alison Frankel –  March 25, 2013

In 2009, six retired pro football stars filed a class action against the National Football League in federal court in Minneapolis, claiming that the NFL misappropriated their names and images without their consent. The class action, led by (among others) former Houston Oiler Hall of Famer Elvin Bethea and former Los Angeles Ram All Pro and television star Fred Dryer, asserted that the NFL didn’t compensate its retired players when it used clips from old games to promote the league. In September 2011, the Dryer case was consolidated with two other similar class actions. Three firms, Zimmerman Reed, Hausfeld and Bob Stein, were named interim lead counsel.

Last week the NFL and the class filed a $50 million settlement with U.S. Senior District Judge Paul Magnuson. Two days later, Dryer, Bethea and the other four retired players who filed the original suit – and who are still the first six name plaintiffs in the case – objected to the settlement, arguing that it delivers no cash directly to class members and, as such, should be treated with the judicial skepticism that has lately greeted settlements involving no money for class members and millions for their lawyers. That argument may be familiar, but the circumstances of this objection are anything but. How often do you see six original name plaintiffs repudiate the settlement of their case? Aside from the widespread retailer discontent with the recent Visa and MasterCard interchange fee settlement, I can’t think of an example. Nor can I remember a case in which plaintiffs’ lawyers fought so nastily over settlement terms that the court had to appoint a lawyer outside of the lead counsel triumvirate to negotiate on behalf of the class. What a mess for Judge Magnuson to clean up.

Court-ordered settlement talks began before U.S. Magistrate Arthur Boylan last summer, after the class filed an amended complaint (adding more retired players as plaintiffs) and discovery got under way. But it turns out that a deep schism had developed between some of the players and their counsel Michael Hausfeld. (Hausfeld was actually the second lawyer for Dryer, Bethea and their fellow original name plaintiffs, who began the case with counsel from Charles Zimmerman of Zimmerman Reed.) Last November, former journeyman quarterback Dan Pastorini filed a notice in the Minnesota class action, informing the court that he had sued Hausfeld and his eponymous firm for malpractice in state court in Harris County, Texas. Pastorini said that he and many of Hausfeld’s other clients “do not support the present actions of defendants to attempt to settle their own class action case in a way that lines the pockets of defendants with legal fees, creates nonsensical entities orchestrated by defendants to obtain still more additional side benefits to them, but does nothing to effectively further the interest of plaintiff and the class members that he represents.”

It certainly didn’t advance comity in the case that Pastorini was (and is) represented in the malpractice suit by Jon King, who was fired from the Hausfeld firm last October. King, as you may recall, subsequently filed his own all-encompassing complaint against Hausfeld in January, accusing Hausfeld of cutting ethical corners to keep the firm afloat. The firm, meanwhile, has said King’s claims are baseless allegations from an ousted employee.

In December, Judge Magnuson recognized that disagreements among plaintiffs’ lawyers had stalled negotiations to settle the retired players’ class action. On the same day that Hausfeld formally withdrew as counsel to the original six plaintiffs, Magnuson appointed Daniel Gustafson of Gustafson Gluek as settlement counsel for the class. It was Gustafson who signed last week’s brief requesting approval of a settlement that would establish a $42 million “common good” fund and an independent licensing agency to oversee future publicity rights of retired players. According to the settlement brief, the common fund is not intended to pay any individual class member for the misappropriation of his image, but would disburse money to third-party charities providing health, insurance and career transition services to retired NFL players. Plaintiffs’ lawyers would receive a total of $7.7 million under the proposed agreement.

The original name plaintiffs believe it’s a raw deal for the class. “The amounts paid under the settlement will go only to undefined charitable organizations, and not to class members in the form of direct benefits,” they wrote, citing courts that have recently rejected these so-called cy pres settlements. “The NFL has built its films library on the backs of retired players, but the proposed settlement does not guarantee the players any benefit from the complete release of their claims.” This class action isn’t a consumer case in which the class is hard to define, the objectors’ brief said. So there’s no reason to resort to a cy pres settlement that provides, at best, indirect benefits to class members.

The objecting plaintiffs are represented by King; Robins, Kaplan, Miller & Ciresi; Ward & Ward; and Bob Stein, who was one of the co-lead counsel in the case. Stein told me he couldn’t comment on the schism in negotiations, but said that Judge Magnuson held a hearing on the proposed settlement last Friday. The judge asked Gustafson and the other lawyers supporting settlement for additional briefing, Stein said, but did not indicate whether he would eventually approve the deal or not.

Gustafson didn’t return my call, nor did I immediately hear back from co-lead plaintiffs counsel Charles Zimmerman of Zimmerman Reed. Through a representative, Hausfeld declined to comment. The NFL is represented by Faegre Baker Daniels and Debevoise & Plimpton, which didn’t return a call requesting comment.


About Jeff Nixon

Jeff was a first team consensus All-American from the University of Richmond in 1978. He is 7th in NCAA history with 23 career interceptions. Played for the Buffalo Bills 1979-1984. Led the team with 6 interceptions in Rookie Year. Holds Bills record for 4 takeaways in a single game - 3 interceptions and a fumble recovery. Tied Bills record with four consecutive games with an interception. After 5 knee surgeries Jeff retired from pro football in 1985. He worked for 13 years (1988-2000) as the Youth Bureau Director for Buffalo and Erie County. He has worked for the past 11 years as the Youth Employment Director for Buffalo. Plays guitar and was voted best R&B guitar player by Buffalo Nightlife Magazine in 2006, 2007 and 2008.

Posted on April 2, 2013, in Uncategorized. Bookmark the permalink. 8 Comments.

  1. conrad dobler

    I agree with the originial group that filed the suit. Besides the gorup that was to oversee the fund did not include any of the originial people. Another attempt of the NFL and their window dressing, of course, again the lawyers want to line their pockets. Where are the names of Dryer, Elvin Bethea, Jim Marshall, Dan Pastorini, Joe Senser and Ed White. If there is a fund to be set up than why are not they in charge of the distribution of the money. I am no long sure who represents me. Is it Hausfeld or Zimmerman? They are right, this was about lining the pockets of the lawyers and of course we get the moral victory. I stand with the original 6 players of who I know and trust. Good job boys I am behind you and what can i do to help. No way will I give up my rights. In a book I wrote I had to buy the pictures of myself in uniform from the NFL. No only don’t I get paid for using my image but Ihave to pay them to use my own image. Its about time they pay us.
    Conrad Dobler
    Cardianls 1972-1977, Saints 78,79 Bills 80,81

  2. I agree with the rejection.. I truly feel this is a step in the right direction and the best way to go.. Thanks Fred & Elvin. We as Players that have gone through many class action law suites have learned..all money is not good money..

    The so called greater good fund is novel, But 100% of what we don’t want. .Example the Charities that get funding from the “Grater Good Fund” will need administrators this translate into benefits cost meaning shrinkage of funds to you and the class, besides It makes no sense to have such a fund because you get the benefits anyway.

    I’m sure all whom read these reports and other info regarding Retired Players Class action law suites will agree we settled too soon and didn’t go after all the people/ companies involved. .Example, The GLA class action, we should have went after John Madden & EA Sports..Did we? No we did not, But we did commit a mistake, We settled too soon and left God knows how much money on the table, All because some guys said they needed money now and The NFLPA & NFL put their public relation spin on it and made it sound as if we all had financial problems living on street coners begging for a crust of bread…

    Frankly I sick and tired of being sick and tired of others making money off us in these matters, Lawyers included.. NFL Films & The NFL has been around forever and will continue to be around forever.. I want all who read this to inquire on purchasing a season hiilite DVD of your years in the League.. I played 11 seasons, If I ordered 11 seasons of hilites form each season I played, I’d be paying well over $500 dollars..go figure, not a nickle of it will roll my way and I’m in the flicks..
    The Super Bowl The NFL channel Runs SB Hilites from SB I to last years SB..again not a nickel roll your way or my way
    So … At the start of this post, I said I agree with the Players rejecting the settlement and it being a good step in the right direction and the best move.. In this class action I truly believe Fred & Elvin have your best interest on the table and I applaud them, And let’s hold tight to their values and support them and this Class action by being united and passing the word as to why we are in support.
    Mike Davis

  3. Is it any wonder that lawyers are held in such low esteem? Their interests in this case were clearly at odds with what their clients wanted, but they went ahead with the settlement anyway so that they could collect their cut.

  4. Here .. Here David, Well said.. Law firms are interested in the top & bottom line $$$$$$ only.. At times it’s depressing because Lawyers skip the justice part and the righteousness of clients being well represented.

    Looking forward, Let’s not forget the Concussion Class Action Law suites.. We must keep a very close eye on that and manage it well, Because lives and love one’s are on the line.

  5. I will keep it simple! If that “Harry Houdini smoke and mirrors settlement” flies you don’t have to be genius to anticipate another lawsuit from Bernie Parrish & Bob Grant. Looks like we will not be “traveling alone.”

    I think that the “soon to be announced “Retired NFL Players Congress” should make it clear that this settlement and this group, that nobody elected (as usual), is absolutely not in the best interest of any of the Pre-93 Players. We already have darn near a million 800 numbers when elevating our pension and benefits to MLB’s is what’s really needed. (Can you say “KEEP YOUR EYE ON THE BALL)

    We can kill this foolishess by having enough players “OPT OUT” if the Settlement is approved. Jeff how would a player go about doing that?

    Bob Grant

    • Bob Stein, the lawyer for the six original plantiffs has filed an objection to the preliminary settlement. The Judge is reviewing it and will make a ruling (we don’t know when). He could order additional hearings.

      If the Judge allows the preliminary settlement agreement to go forward, the parties are required to notify all former players. At that time any retired player can file a formal objection to the settlement. If enough retired players do that, the Judge could make the NFL lawyers and the Plaintiff’s lawyers go back to the table.

      That is what we need to happen……and you can help… when, and if, that time comes.

      If one of the parties do not want to go back to the table, then it could go to trial.

      I’ll keep you posted.

  6. You can have my vote now. .I vote yes to the rejection. I’d love to see a trial.
    I know I’m skipping one part, Getting back to the table for more “Talks”
    I’d like to see retired players voting yes to the rejection now. I think that will send a clear strong message to All Lawyers involved and the Judge. As Bob said keeping it simple.
    Being proactive may be the key here and perhaps speed up decisions on the curt’s part Knowing X amount of players have already voted yes for the rejection and are looking for Real money as well as future compensation on NFL using our person/ likeness, promotion and or any other method the use us in.

  7. I’m so happy that the settlement was rejected. The only people prospering from this bogus settlement are the lawyers. We the plaintiffs basically got nothing! I personally, don’t want Jim Brown deciding anything on my behalf and the league is not made of just the Hall of Famers. It seems that there is a plan to create a caste system of former players, in that, we have the Hall of Famers and then the lowly lunch bucket players that mean nothing. As if these guys weren’t part of the team and did everything on their own. There needs to be back compensation with interest for everyone who has ever been in a film, etc.. Fire all of those deadbeat attorneys that only plan to sell us short so that they can get their huge fees. Shame on these cutthroats.

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