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Who Does the NFLPA Represent?

Posted February 24th, 2009 by RetiredPlayers

ESPN’s Outside the Lines recently ran a story about the Houston Texans violating the NFL’s collective bargaining agreement by conducting “contact” drills during the offseason.  The piece focuses on three Houston Texans offensive linemen who all suffered season ending injuries on May 9, 2008,while participating in a banned pass rush drill during offseason workouts.  The league’s labor agreement says players are prohibited from wearing pads during offseason drills.  The agreement also states that there will be no “contact work” such as pass rushing drills.

ARTICLE XXXVI Section 4. Contact: There will be no contact work (e.g., “live” blocking, tackling, pass rushing, bump-and-run)
or use of pads (helmets permitted) at minicamps.

ESPN reported that NFLPA player representative Kris Brown and NFLPA Executive Committee member Mark Bruener confronted Texans head coach Gary Kubiak to inform him that pass rushing drills are prohibited during the offseason.  According to Texans offensive lineman Dan Stevenson, Kubiak told the union reps that the coaches would run practice as they wanted and the drill continued to take place.  Bruener and Brown have declined interview requests regarding this matter.

Texans offensive lineman Dan Stevenson suffered what could be a career ending shoulder injury while participating in the prohibited full contact drill.  Stevenson filed a grievance against the Texans for the alleged violation of the CBA.

The NFL Management Council rejected the grievance because the “Texans deny [...] players were required to participate in drills which are explicitly prohibited.”

Stevenson brought a video camera into the Texans meeting room and made his own video of the prohibited drill.

“They can no longer deny the fact that this drill ever happened,” Stevenson told ESPN.

The Texans medical staff initially diagnosed Stevenson’s injury as a shoulder strain.  When Stevenson obtained the medical opinion of an independent physician he was diagnosed with multiple tears in his right shoulder. Even though Stevenson paid $10,000 in dues to the NFLPA in 2008 he felt the need to hire his own attorney outside of the union legal department to represent him in his claim against the Texans.

Five year NFL veteran, Jordan Black, also suffered a season ending injury that day.  One month after the injury ocurred the Texans released Black from their roster.  The Texans stated that Black did not suffer an injury during the workout and that the team would not pay for his shoulder surgery.  In September, the Texans agreed to reimburse Black for his medical expenses but also stated the reimbursement “does not constitute evidence nor any admission of the Club’s liability.”

The third player to suffer a season ending injury that day, Chukky Okobi, a seven year NFL veteran, was released by the Texans in June of 2008 and has not signed with another team.

ESPN’s Outside The Lines attempted to interview the Texans head coach, general manager, and general counsel but they refused to take part in the interviews.

Who does the NFLPA represent?  The union has made it clear that they do not represent retired players.  The fact that the NFLPA does not enforce the CBA for active players who pay $10,000 annually in dues is inexcusable.  Why even have a union if the rights of its members are not going to be defended?  Why have a collective bargaining agreement if its terms are not going to be enforced?

Article II Section 2 of the CBA states, “The NFLPA and the Management Council will use their best efforts to faithfully carry out the terms and conditions of this Agreement and to see that the terms and conditions of
this Agreement are carried out in full by players and Clubs.”

Teams have conducted these prohibited drills for years.  The prohibition of pass rushing in the offseason is meant to protect the players.  When players suffer injuries the medical expenses are paid out of the players’ share of NFL revenues.  This is money that could be used for player salaries or retiree benefits.  The owners are not held responsible for any of the medical expenses.

The average NFL career is a short 3.5 years.  How many players will be willing to endure a season long strike or lockout when it costs them nearly one-third of their earning capacity as a professional athlete?  The NFLPA should be doing all that it can to lengthen the average NFL career.

The union has not enforced the terms of the CBA for its active player membership.  It’s difficult to believe they will fight for the rights of retired players that are incorporated into the labor agreement.

The retirement and disability plan are incorporated into Article XLVII of the CBA, but players are left to hire their own attorneys when their claims for disability benefits are denied.

So, who does the NFLPA represent?

houston-texans-illegal-contact

Click on the photo to view the video segment which appeared on ESPN's Outside The Lines

NFLPA Files Notice of Appeal in Retired Players Group Licensing Lawsuit

Posted February 3rd, 2009 by RetiredPlayers

As expected, the NFLPA has filed a notice of appeal regarding the recent award of $28.1 million to retired players.  A jury awarded the money after they found that the union had breached its’ fiduciary duty to retired players who signed a group licensing agreement from February 14, 2004 to February 14,2007.

The NFLPA states that issues to be raised on appeal are:

Whether the jury’s fiduciary duty damages award was based on sufficient and proper evidence; whether the district court committed reversible instructional and evidentiary errors; whether the district court erred in certifying — and denying Defendants’ motion to decertify — the GLA Class; whether there was sufficient evidence to support the jury’s $21 million punitive damages award; whether there was sufficient evidence that Defendants owed a fiduciary duty to the GLA Class.  

The notice of appeal comes just days after the NFLPA’s outside counsel, Jeffrey Kessler, told The New York Times that active and retired players should unite. 

“I’d like to see retired players and active players come together,” Kessler said. “I’m sure that’s going to be on the table with the new executive director, whoever that new executive director is.”

Perhaps those words will ring true with the NFLPA’s next Executive Director.  A jury of ten saw things differently than the current union administration.  It took less than three weeks of testimony for the jury to reach their unanimous verdict.

You can view a copy of the notice of appeal by clicking HERE.

Video of Annual NFLPA Super Bowl Week Press Conference

Posted February 2nd, 2009 by RetiredPlayers
Click to View Video

Click to View Video

The NFLPA held their annual press conference on January 30, 2009, in conjunction with the Super Bowl festivities in Tampa.  Director of Communications Carl Francis, Interim Executive Director Richard Berthelsen, and NFLPA President Kevin Mawae all took the podium.  Berthelsen began the conference speaking about the need to maintain labor peace.  Mawae discussed the highly scrutinized search process for a new Executive Director.  Even with the criticism of the search process and the pressing need to address the potential of an uncapped season in 2010, Mawae stated that the union would not meet with the complete Board of Player Representatives until March.  He also stated that the Executive Committee and Search Committee are communicating with the Board of Player Representatives through the mail.

Berthelsen returned to the podium to reveal that the NFLPA had commissioned the Chicago Partners firm to examine the current economic state of NFL teams.  The NFLPA believes the analysis shows that team values continue to rise and that there was no need for owners to opt out of its’ current agreement with the union.

Next the Interim Executive Director addressed the friction with retired players and, specifically, the retired players victory in the class action lawsuit over licensing.

Berthelsen stated from the podium, “We think there were many mistakes made legally in that trial.  We don’t think the class should have been certified to begin with and we surely think the jury’s verdict was not supported by any credible evidence in the case and therefore we’re appealing it.”

He had little else to say about the pending litigation but added attorneys Jeff Kessler of Dewey & LeBeouf and Jim Quinn of Weil, Gotshal & Manges were present to field questions about the lawsuit.

Berthelsen continued, “The truth is Gene Upshaw and the NFLPA have done as much, if not more, than any union in this country to address the issues of its’ retirees.”

He said any pension increases would have to come at the bargaining table.

Berthelsen closed the press conference by saying that if NFL owners had complete revenue sharing between teams that each team would be better able to meet their financal obligations.   With complete revenue sharing they would not have needed to opt out of the CBA.

Congresswoman Linda Sanchez Shares Her Thoughts on NFL Retired Players

Posted January 30th, 2009 by RetiredPlayers

huffington-postCongresswoman 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.

Former NFL Greats Gather in Tampa to Shed Light on Benefit Problems

Posted January 29th, 2009 by RetiredPlayers

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.

A Look at the NFLPA’s Search for New Executive Director

Posted January 28th, 2009 by RetiredPlayers

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.

HBO Real Sports Takes a Look at Retired Players Group Licensing Lawsuit

Posted January 26th, 2009 by RetiredPlayers

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.

Paul Domowitch Reports on NFL Layoffs

Posted January 25th, 2009 by RetiredPlayers

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.

NFLPA’s Post-Trial Motions Denied

Posted January 13th, 2009 by RetiredPlayers

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?”

and

“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.

NY Times: Baseball Has Lessons for N.F.L. Players Union

Posted November 21st, 2008 by RetiredPlayers

New York Times writer William Rhoden has written an article about the NFLPA’s search for a new executive director.  Earlier this week Rhoden interviewed Marvin Miller, the man who built the Major League Baseball Players Association into what is considered one of the strongest labor unions in the United States.  Miller was able to convince baseball players that “they were the game and that their power was in their unshakable unity.”

Miller says baseball players “were used to taking orders; they thought that management was God. I had to explain to them that all of these people — the commissioner, the owners, the general managers, the manager — they were all on the other side.”

The author of the article urges the NFLPA Executive Committee members to speak with Miller and his MLBPA successor, Donald Fehr, before selecting a new NFLPA executive director.

To read the full text of the article click HERE.

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