The “original six” that stand for retired NFL Players
Written by Jeff Nixon
Fred Dryer, Dan Pastorini, Elvin Bethea, Jim Marshall, Joe Senser and Ed White were the original six plaintiffs that filed a Class Action Lawsuit on August 20, 2009 and began the fight to help retired players get compensated for the NFL’s unauthorized use of our images.
For almost four years now, these men, along with their lawyer, former NFL player Bob Stein, have fought to get the case heard by a court and a jury.
In September 2011, the Dryer case was consolidated with two other similar class actions filed by Zimmerman Reed and Hausfeld. (note: Zimmerman Reed was previously fired by the original six plaintiffs).
Hausfeld and company wanted to settle the case and immediately get 7.5 million in legal fees, but they could not convince the original six that the settlement was fair, so they filed an amended complaint that added several other retired players.
The new plaintiff’s that were added, include Jim Brown, Darrell Anthony Thompson, Fred Lee Barnett, Tracy Anthony Simien, Lem Barney, Mark Clayton, Irvin Cross, Brian Duncan, Billy Joe Dupree, Michael Haynes, Paul Krause, Bruce Laird, Reggie McKenzie, Preston Pearson, Reginald Rucker, Jackie Smith, and Jim Ray Smith.
It appears that Hausfeld and company stacked the deck against the original six by finding former players that were agreeable to his law firm’s settlement recommendations. By adding them as plaintiffs, Hausfeld gave the illusion that there was consensus from retired players on the proposed settlement.
How can these guys seriously say that they can speak for retired players instead of the original six that have been working on the case for almost four years?
The original six filed a complaint objecting to the proposed settlement. In it, they showed us why the settlement was not worth the paper it was written on.
Very soon, all retired players will be receiving a notice from the court about the proposed settlement – and the process for agreeing, objecting or opting out of the settlement.
The original six will need our help in getting this case back in court, or getting a fairer settlement. I beg each of you to submit your objections. All retired players deserve much more than what has been offered by the NFL, but it will only happen if we all respond. Every retired player that objects will be listed in the public record of this case. Make sure you are on that list!
I have some strong opinions on this settlement. Some of them are not suitable for writing in a “formal objection” to the Judge.
Here they are:
First, there has been no discovery on what the actual damages could be in this case.
NFL Films has profited from the use of retired player publicity rights for the past 50 years, and I’m pretty confident their revenues over that period of time are a hell of a lot more 50 million – which is the total settlement price tag for the NFL owners.
The settlement calls for the NFL to contribute $42 million to the “Common Good Fund.” They will provide $5 million as soon as the Common Good Fund is established and then $5 million annually for the first two years and $4.5 million annually for the following 6 years.
This would require each NFL team to contribute a whopping $156,250 annually for the first three years and then $140,625 annually for the next five years! That’s about one third of the minimum wage for a rookie player, which is currently $405,000.
Does that sound like a fair amount of money for the profits they have reaped over the past 50 years of selling retired player publicity rights?
That doesn’t include the hundreds of millions and possibly billions they will reap over the next 50 years of selling retired player images – once we give up those rights.
After the NFL owner’s contributions have been made – it’s over!
They provide no more contributions, nothing, nada, zilch. They will even get money back from the fund, if it is unspent.
The proposed Settlement lists all the reasons why the NFL and Hausfeld think that former players should just roll over and except the settlement.
As one of the reasons, they say that the 2011 CBA states: “For the purpose of clarity,” that the NFL may continue “to use and to authorize affiliates or business partners to use,” the granted rights of publicity “after the term” of the NFL Standard Player contract.
What the hell does that have to do with players that retired before 2011!
Look at what Mr. Hausfeld said in his December 2011 issue of “The Voice” newsletter Vol. 1 Issue 2. “The new CBA, effective August 4, 2011, helps support the view of retired player publicity rights in that it addressed player publicity rights AFTER an individual player contracts end. For the first time, the CBA requires every NFL Player Contract to include language giving the NFL the “right and authority” to use player publicity rights “after the term of the Agreement.” The addition of this language supports the claim in the Dryer case that the NFL did not have these rights in prior CBA’s.”
I have underlined and highlighted the sections that show how Hausfeld and company are doing a complete 360 degree flip-flop on this issue.
So what did the Judge have to say about the issue of contracts?
On December 11, 2012, when Judge Magnuson turned down the NFL’s effort to time-restrict the claims in this case, he said “To the extent the contracts even addressed publicity rights at all, none of the contracts extended the NFL’s control over the players’ publicity rights past the expiration of the contracts.” He went on to say “Because the written player contracts contained no provision for post-expiration publicity rights, either some other (oral or written) agreement governed, or there was no agreement whatsoever and the NFL cannot use Plaintiffs’ publicity rights.”
Now that Hausfeld and the NFL have agreed to a settlement, Judge Magnuson agrees that this would be a tough case to litigate and we should just take the settlement “dessert” that is being rammed down our throats.
In his order approving preliminary approval of the proposed settlement, he had the audacity to say “It is the height of disingenuousness for these same Plaintiffs to now complain, like children denied dessert, that the settlement does not benefit enough the individuals who brought the lawsuit.”
The original six never asked for any individual payments, and for the Judge to say that, is disingenuous.
They were not denied dessert.
They were given a dessert they refused to eat, because they found out it wasn’t hot chocolate mousse – it was a steaming pile of you know what!
Excuse my language, but who the f_ _k does this Judge think he is talking to?
The original six are heroes in the eyes of most former players, because they had the guts to sue the NFL and fight for almost four years to bring this case to trial, or a fair settlement.
The proposed settlement states that “at the outset of the case, United Sates District Judge Paul A. Manguson urged the parties to consider whether the costs of litigation are justified and suggested that the Plaintiff’s who profess great concern about their less fortunate brethren who suffer long-term health consequences of playing in the League, might be willing to forgo individual payment for the good of all former players.”
The original six could have easily agreed to the settlement and received a “service award” for all the work they put into this class action lawsuit, but instead, they walked away from guaranteed money because they didn’t think the settlement was fair to all class members. That is the most unselfish thing a person can do – and each of them did it – for us!
So why did Judge Manguson approve the preliminary proposed settlement agreement?
Most Judges like settlement agreements because it relieves them of the duty of overseeing lengthy trials that include numerous court hearings and controversial rulings – some that could make them look bad if they are overturned by an Appeals Court. It’s a lot of work, but isn’t that what they get paid to do?
As it stands right now, if the settlement is approved, the original six will receive nothing for the years of work they put into this effort, whereas the new plaintiffs could receive “service awards” and other direct benefits for being placed on the Board of Directors of the Common Good Entity or the Licensing agency.
Is it any surprise that Hausfeld has recommended James Nathaniel Brown; Irv Cross; Billy Joe Dupree; Ronald Mix; Darrell Thompson; Jack Youngblood and David Robinson to serve as the initial Board of Directors for the Common Good Fund and the Licensing Agency?
Although it sounds great to help our less fortunate brethren, this case wasn’t about giving money to charities to get former players better health care, housing assistance, career transition assistance, medical research and screenings, mental health programs and wellness programs.
The P.A.T. doesn’t even have enough former players applying for assistance on an annual basis, so the Board that oversees the fund amended their by-laws and made this statement: “In 1997, to make sure that the Professional Athletes Foundation met IRS requirements regarding minimum distributions each year, on advice of Legal Counsel, the Foundation expanded the recipients of Foundation grants to include charitable organizations with like-minded goals and purposes (not enough players applied for and received PAT grants to meet the minimum percentage of distributions by the Foundation).”
They can’t even spend all the money they currently have on individual players, so how does the Common Good Fund and their Board think they will spend an additional 5 million a year on former players in dire need?
Instead of giving out grants exclusively to players in need, the NFLPA’s P.A.T. fund is now giving grants to former player charity organizations for things like football camps and leadership development programs for young people. They had to do that because they weren’t getting enough applications for assistance from retired players in need.
So guess what happens to the money in the Common Good Fund if it isn’t spent two years after their final installment? The NFL gets to take the remaining funds and use them for charitable organizations that they do business with. Those could be organizations that have nothing to do with helping former players that are members of the class!
Believe it or not, a majority of retired players are doing just fine since their retirement from the NFL. Obviously, we all want to help our less fortunate brethren, but that was not what the Class Action was about. It was about being compensated for the NFL’s unauthorized use of our identities, including but not limited to our names, images, and likenesses, to promote the NFL, sell NFL-related products, and otherwise generate revenue for the NFL and its member teams.
Apparently the establishment of a Licensing Agency is supposed to remedy this problem in the proposed settlement.
Unfortunately, the only folks that might benefit from the new Licensing Agency already have licensing agreements with the NFL, the NFLPA, the Pro Football Hall of Fame and companies that want their publicity rights. I have previously written about the NFLPA licensing agreements at this link: Players inc. paid 13.89 million to 150 former NFL players from 2002-07.
Under the proposed settlement agreement, the new Licensing Agency is designed to have former players that have been compensated from a marketing activity donate 25% of their royalties back to the agency. Supposedly, the 25% will be pooled and distributed under some type of formula established by the licensing agency board of directors.
So let’s imagine that the new licensing agency was able to steal all of the business from the NFLPA Players Inc. marketing department and generate 14 million in revenues from the marketing activities of 150 Hall of Famers and other big name players. Under the proposal, 25% of that amount, or 3.5 million would go into the pool – minus up to 15% for the Licensing Agencies work.
If the 3.5 million was distributed evenly among the 17,000 former players (class members), each guy would receive a huge annual check in the amount of $205.
That doesn’t even include the Licensing Agency’s cut of the money, or the amount that they are going to put back into the Common Good Fund!
Now let’s imagine the new Licensing Agency doubled that amount, and brought in 28 million in revenues. On average, each player would receive a $410 check.
Let’s quadruple the amount to $56 Million. On average, you would get a check for $820.
Last year, I earned more than twice as much ($1,800) by simply writing comments and getting fans to become members of the School of the Legends.
One of the FAQ (frequently asked question) you will not see posted on the Settlement website is “Why would the Hall of Fame players and other marketable players agree to donate 25% of their earnings back to the new licensing agency when they can get 100% of the royalties from their current licensing agreements?”
The NFLPA previously established a group licensing agreement program with all former players, but we know how that program went down in flames.
The NFL Alumni Association still has a group licensing program with all former players. How many of you received a single dime from that program?
So what makes this licensing program different from those programs?
I guess the NFL’s $50,000 dollars to help us set up the Licensing Agency is supposed to make a difference. I’m sure it will make a difference in the life of the new Executive Director of that organization and the staff that are hired, but for the average player (most of us) it will not pay for a pot to p… in.
The settlement agreement also sets aside up to 13.5 million that the owners can take out of the settlement to use for litigation against former players that opt-out of the settlement to pursue individual cases.
Why did Hausfeld and the NFL agree to make that a part of the settlement?
I’ll tell you why. It was put in to discourage players from opting-out and suing. This was set-up to make any former player that opts out and sues look like the bad guy.
History will show that the original six were on the right side of this issue and that they cared more about All Retired Players than the guys that agreed to the settlement, rolled over and played dead, like good little lap dogs for the NFL.
Your alumni brother,