Congresswoman Linda Sanchez wrote a piece for The Huffington Post and says through NFL Films the National Football League continues to profit from the retired players who are denied disability benefits. The congresswoman chaired a hearing on NFL retired player benefits, but thinks not much has changed since then. She will continue to look for ways to address the problem and hopes by next years Super Bowl that we can celebrate active and retired players both getting a fair deal.
Keith Schleiden of Pro Football Weekly wrote that over 100 former players and one current NFL player attended a charity event to raise money for the Gridiron Greats Assistance Fund. The fund was established to provide financial assistance and social services to NFL players in need due to inadequate pension and disability benefits.
Former Buffalo Bill and Hall of Fame player Joe DeLamielleure attended the charity function and had this to say about the current state of NFL benefits for retirees:
“If they fix the pensions, we wouldn’t be in here. It’s the only sport in this country … in baseball, you don’t hear their Hall of Famers complaining … basketball … you don’t hear hockey. Why are we having 100 (ex-players) show up last night (to a charity function)? Because they have not taken care of our pensions. If they take care of our pensions, this will all go away. It’s real simple. It’s that simple. And I’ll complain until the day I die about bad pensions and disabilities, until it’s fixed.”
The one active player in attendance was current Minnesota Vikings center and Harvard graduate Matt Birk. He added:
“I think it’s important that every current player realizes that he’s going to be a retired player at some point. If not because it’s the right thing to do right now, selfishly look at the issue and do something about it. Otherwise, it’s just like coach (Ditka) said, we’ll be here in 20 years talking about the same thing. Change isn’t always swift, but we’re trying.”
Previously, Birk donated one of his paychecks to the Gridiron Greats Assistance fund.
While the financial support of current players is appreciated, they can also help in another way. Active players will choose the next Executive Director of the NFLPA who will play a large role in the future negotiation of benefits. With the help of active players perhaps the current situation will change at some point.
Last week the NFLPA’s Search Committee, comprised of six members of the union’s Executive Committee, trimmed their list of potential candidates for the Executive Director position to five. The list of candidates was reduced a week after the Department of Labor received a letter from four congressmen asking if they would monitor the NFLPA’s process for finding a new Executive Director. A copy of the letter from Congressman Edolphus Towns, Gregory Meeks, Bobby Rush, and G.K. Butterfield was also sent to NFLPA Interim Executive Director Richard Berthelsen and union President Kevin Mawae. The four congressmen requested that a “detailed disclosure and description report” be provided to them and the Department of Labor.
The letter from the congressmen also stated:
“We would like to ensure the integrity of the search process and that the process is transparent, fair and compliant with all applicable Department of Labor rules and regulations, and the NFLPA Constitution rules and by-laws,”
In response NFLPA President Kevin Mawae, who is himself a member of the search committee, said:
“While we respect the Congressmen’s right to ask about the process, I do not see how the transparency or legality of our search can be seriously questioned. We have told our members from the beginning that it is a free and open process, and that they are all free to suggest candidates to the Search Committee or the search firm. The members of our committee have been very conscientious about their roles, and they have worked very hard to do things the right way.”
The election process for a new Executive director is spelled out clearly in the NFLPA Constitution. In November of 2008, the NFLPA President told The Associated Press that the selection procedure was still up in the air.
Mawae said the union has yet to determine whether the new executive director will be selected by a vote of the NFLPA’s 32 team player representatives or whether the search committee will make the decision on its own.
“There’s pros and cons to doing it either way,” Mawae said. “The last thing we want to do is do it in a way that’s going to cause us to pick the wrong person and have to do this process again in a couple of years.”
Here is what the NFLPA Constitution says about the selection process:
First, Article 4.01(b) states that the Executive Director is an administrative officer.
4.01(b) The principal administrative officer of the NFLPA shall be its Executive Director. The Executive Director shall be elected at the annual meeting of the Board of Player Representatives for a term of three (3) years and until his successor shall be duly qualified and elected. Written notification of the election of the Executive Director shall be sent to the Board of Player Representatives prior to the meeting in which the election is to take place. The Executive Committee shall negotiate his employment contract.
The Constitution then states that administrative officers are elected by the Board of Representatives.
4.02 The executive and administrative officers shall be elected by members of the Board of Representatives. Except as provided in Section 5.06, the incumbent President shall be without a vote.
The Board of Representatives is made of up the NFLPA President, the 32 Player Reps as elected by their respective teammates, and the current Executive Director.
5.01 The Board of Representatives shall consist of the President, one Player Representative from each club, and the Executive Director serving ex officio.
The NFLPA Constitution states to be eligible for election an Executive Director candidate must be endorsed by three members of the Board of Representatives at least ten days in advance of the election.
4.04 In order to be eligible for election as Executive Director, a candidate shall be required to have the written endorsement of no less than three (3) members of the Board of Representatives which shall be delivered to the President at least ten (10) days in advance of any election. A candidate for the office of Executive Director need not be a member in good standing of the NFLPA.
Lastly, the Constitution states that each player representative will have one vote for each dues paying member of the NFL team he represents.
5.06 Each member of the Board shall, in transacting the business of the Association, have one (1) vote for each current dues paying member from his team. The President shall have a vote only for purposes of breaking a tie vote of the Board of Representatives in matters other than officers’ elections.
The process laid out in the NFLPA Constitution is clear cut. It does not sound like the procedure has been followed. The list of candidates has been reduced to five by a search committee. What would happen if more candidates emerged with the endorsement of three members of the Board of Representatives?
With the NFLPA Executive Director position commanding a salary of over $6 million annually and the ability of the incoming Executive Director to bring in his own staff it is easy to see why people may be trying to exert their influence over the selection process. With a new Collective Bargaining Agreement to be negotiated and $8 billion in annual NFL revenue on the line the influence may come from people within NFL management as well.
To view a copy of the NFLPA Constitution in its entirety you can click HERE.
On January 20, 2009, HBO’s Real Sports aired a segment that focused on the class action lawsuit filed by retired players against the NFLPA and its’ licensing arm, Players Inc. The title of the segment was “Disunity”.
The piece opened in the home of Dave Pear, who won a Super Bowl in 1980 with the Oakland Raiders as a defensive lineman. Pear played in the Super Bowl with a broken neck. Since his retirement he has had seven spinal surgeries. Pear deals with pain on a daily basis. He was denied NFL disability benefits for 25 years.
Six years ago, Dave Pear received a letter from the NFLPA and Players Inc asking him to sign a Retired Players Group Licensing Agreement. He was grateful for the program and hoped that the money generated would help ease the financial burden of his countless medical bills.
HBO journalist Frank DeFord then interviewed retired NFL Hall of Famers Joe DeLamielleure and Herb Adderley, along with former Pro Bowl player Bruce Laird. They spoke about their understanding of the Retired Player Group Licensing Agreement which they signed. The agreement states:
Group licensing programs are defined as programs in which a licensee utilizes a total of six (6) or more present or former NFL player images in conjunction with or on products that are sold at retail or used as promotional or premium items.
DeLamielleure, Adderley, and Laird all believed that whenever the images of six or more NFL players were used that they would receive a share of that money just as it states in the Group Licensing Agreements they signed.
Unfortunately, even though the NFLPA solicited retired players to sign the Group Licensing Agreements for over 13 years, not a dime was ever paid to a retired player through the group licensing agreement program. The frustration with the Retired Players Group Licensing Program led to the filing of a class action lawsuit on behalf of over 2,000 retired NFL players.
Jeffrey Kessler, outside counsel for the NFLPA, told HBO that because only current players’ licensing rights were ever used by companies that they were the only ones paid. A quick internet search turns up a few examples of “six (6) or more present or former NFL player images” being used, but the retired players were never paid pursuant to the Retired Player Group Licensing Agreements. Some of the examples are the Madden NFL video game series, the McFarlane Toys NFL Legends Series 1, 2, 3, and 4. Also, this month Topps came out with a vintage trading card set which features cards of many retired NFL players.
Kessler also told HBO that the union tried to market retired players, but they weren’t able to attract star players. Companies weren’t interested in “unknown players”. Here is a list of some of the “unknown players” who the NFLPA was unable to license in a group of six or more even once in a span of over 13 years:
|Harry Carson||Ozzie Newsome||Herchel Walker|
|Frank Gifford||Jim Otto||Archie Manning|
|"Mean Joe" Greene||Gale Sayers||Ken Stabler|
|L.C. Greenwood||Lee Roy Selmon||Tony Siragusa|
|Forrest Gregg||Art Shell||Phil Simms|
|John Hannah||Y.A. Tittle||Mark Rypien|
|Paul Hornung||Randy White||Tom Rathman|
|Sam Huff||Dave Wilcox||Andre Reed|
|Deacon Jones||Willie Wood||John Randle|
|Willie Lanier||Ron Yary||Brent Jones|
|Steve Largent||Jack Youngblood||Russ Grimm|
|James Lofton||Roger Craig||Mike Golic|
|Don Maynard||Randall Cunnigham||Herb Adderley|
|Hugh McElhenny||Jack Del Rio||Elvin Bethea|
|Jim McMahon||Herm Edwards||Buck Buchanon|
The NFLPA was not looking for opportunities to market retired players. The union was doing just the opposite. The manufacturer of the Madden NFL video game, Electronic Arts, contacted the union numerous times to inquire about the use of retired players in the game. The NFLPA communicated that it didn’t want Electronic Arts to use any retired players in the game. You may click to enlarge the following e-mail messages:
In another e-mail, an employee of Electronic Arts, reports that despite their efforts to convince them otherwise, the union has “taken a hard line no retired players in the game in any form.”
After 13 years of frustration, retired players hired attorneys to look after their best interests.
Chad Hummell, an attorney for the retired players, said, “They (the NFLPA) exploited the players. They brought them in. They had them sign this contract and then they abandoned them. And worse than that, they actually had opportunities to get revenues for these guys and they turned their back on them completely.”
After years of complaints about the NFLPA from retired players, it took just three weeks of testimony heard by the jury for them to return with a unanimous verdict. The jury awarded retired players $28.1 million based on the union’s breach of contract and breach of fiduciary duty.
Dave Pear concluded the segment by saying of the NFLPA, “All we are asking for is for them to be fair. Live up to the bargain. That’s all we’re asking for.”
The NFLPA’s sole representative was attorney Jeffrey Kessler of Dewey & LeBoeuf. Not a single active NFL player or union employee was interviewed for the segment. Active players, the people who are supposed to run the union, have not commented on the lawsuit in the media.
Richard Berthelsen, the Acting Executive Director of the NFLPA, has stated that the union will appeal the decision. If an appeal is filed, it could be years before the case finally concludes.
The Real Sports program featuring the retired players lawsuit will be replayed several times in the coming weeks. The program also featured stories on staph infections in the NFL, broadcaster Al Michaels, and a segment on the prevalance of guns in professional football.
This story ran in the January 23 edition of the Philadelphia Daily News in a story by Paul Domowitch:
Monday is the deadline for NFL employees at the league office in New York, the NFL Network in Los Angeles and NFL Films in Mount Laurel, N.J., to accept the buyout package the league offered last month.
The league is cutting a total of 150 jobs at those three operations. According to sources, they aren’t going to come anywhere close to reaching that figure in buyouts. Which means there will be layoffs. The league, which is using the struggling economy as an excuse for the buyouts and layoffs, even though it is making lots and lots and lots of money, already laid off almost 10 percent of NFL Films’ work force last March. The league’s severance package for layoff victims is an embarrassment. They are offering just 1 week of salary for every year of NFL service, plus 50 percent of the employees’ season performance bonus, which is a minimal number.
A good number of the job cuts are expected to come at Films. The league, which clearly is trying to phase out Films, even had the audacity to include Films president Steve Sabol on the list of employees who are eligible for the buyout. Sabol and his father Ed founded Films 45 years ago. The company has been instrumental in making the NFL the immensely popular – and profitable – product it is today. Steve has been more important to this league than Paul Tagliabue ever was and Roger Goodell ever will be.
This story follows up a story Domowitch wrote in December on the same subject.
The Honorable William Alsup denied the NFLPA’s post-trial motions to attempt to overturn the $28.1 million award returned unanimously by a ten person jury. The post-trial motions relate to the verdict from the class action lawsuit filed on behalf of over 2,000 retired NFL players alleging that the NFLPA failed to properly market their likenesses.
In their post-trial motions the NFLPA argued that the award of $21 million in punitive damages was too high, but the Court stated that the instructions to the jury regarding punitive damages were exactly as requested by the defense.
The case may be summarized best by the following two paragraphs from the judge’s order:
“A monumental fact was never adequately explained by defendants — how could it have been that defendants lobbied thousands of retired players for fourteen years to sign up for defendants’ RPGLA(Retired Players Group Licensing Agreement) “program,” yet never paid one cent to any retired player under the program? Put differently, if retired players’ images and identities were really the undesirable “dog food” contended by the defense, then why did they try so hard to sign up the RPGLA class members for so long — only to never pay a penny?”
“The jury could reasonably have accepted the view of the evidence that defendants undertook a fiduciary duty to promote and to market all retired players who had signed RPGLAs — yet made no effort to do so — and that defendants’ true commercial motive was to create an illusion of representation so that no one else would seek to sign up the RPGLA class and to market them. While defendants offered vague verbal testimony of passing attempts to market the RPGLA group as a whole, the jury could have easily rejected those snippets as self-serving “double talk.” Not a single offer to market the entire group was ever in writing; nor was there ever any documentary corroboration of any such verbal group offer. To the contrary, the only writings showed the opposite of marketing — for example, that defendants told Electronic Arts to “scramble” the identities of retired players in the lucrative Madden vintage-team game. This game would have been a golden opportunity for defendants to have offered to license the entire group of RPGLA members but, significantly, no such offer was made — or so the jury could reasonably have found. Instead, defendants told EA to “scramble” the names and identities of retired players and the class received zero from this potential bonanza. What is more, the Hall of Fame evidence showed that defendants were willing to “sell out” the RPGLA class members in order to curry favor with EA (by keeping a competitor of EA out of the market) — or so the jury could have reasonably concluded. And, the “escrow account” referenced in the RPGLA (supposedly to be set up to hold revenues for class members) was never even established by defendants, from which it could reasonably have been inferred that the escrow account was never intended to be anything more than an illusion.”
The NFLPA has stated that they will file an appeal with the Ninth Circuit Court of Appeals.
Jeffrey Kessler of Dewey & LeBoeuf, the outside legal firm representing the NFLPA in the case, stated earlier: “This verdict is a complete miscarriage of justice. It will not stand on appeal. The union did nothing but try to help the retired players and there was no basis in the evidence for this jury to reach the verdict that they rendered.”
A copy of the entire order may be viewed by clicking HERE.