Ex-Players Oppose NFL Properties’ Image Rights SettlementAndrew Harris and Beth Hawkins
Years away from the field, former National Football League players including Jim Brown, Preston Pearson and Reggie Rucker clashed in court with retirees Mark Gastineau, Dan Pastorini, Dave Casper and others.
At stake is the $50 million settlement of a 2009 lawsuit against the NFL, which the players said made money from using their images in marketing without sharing it with them.
U.S. District Judge Paul A. Magnuson in April tentatively approved an agreement under which an agency would be created to handle ex-player image licensing and the league would pay $42 million into a “Common Good Fund,” administered by retirees for their peers, plus $8 million to defray legal expenses.
Magnuson was asked today to grant final approval to that deal, over objections it doesn’t put money directly into players’ hands, in a federal court hearing in St. Paul, Minnesota.
Plaintiffs’ lead settlement counsel “has not explained one defined benefit that any individual class member will receive because there is no evidence that any class member will receive any benefit at all,” lawyers for ex-Houston Oilers quarterback Pastorini and others said court papers.
The rift among former players has divided Pastorini, former Minnesota Vikings players Jim Marshall and Joe Senser and other named plaintiffs in the litigation from those who support the accord, including ex-Dallas Cowboys running back Pearson and former Cleveland Browns players Rucker and Brown.
Nobody has valued the rights players are being asked to surrender, settlement opponent lawyer Michael Ciresi told Magnuson today.
“They are giving up their rights and at the end of the day most of them will get nothing,” he said. “People are giving up a property right. Now, either you get something for that or you don’t.”
Dan Gustafson, lead lawyer for the deal proponents, disagreed.
“It’s just factually wrong to say that this money is not going to benefit the retired players,” Gustafson told the judge. “Everybody who ever played in the NFL may some day need a hand up from the Common Good Fund. And every single player who ever played in the NFL may be used in advertisements.”
That there’s dissension over the accord should not be surprising, he said. “There were very strong feelings about it.”
Defending the deal in an Oct. 4 court filing, the attorney said the most important factor is how the settlement benefits compare to the strength of the players’ claims.
“The settlement’s combination of the Common Good Fund and the Licensing Agency thoughtfully addresses the interests of all class members, not just those who may have more valuable claims, but also those whose claims -- although less valuable -- may have greater individual needs,” Gustafson said.
Absent an accord, the players risked losing the case outright at trial, he said, citing potential NFL defenses including consent and that the retirees had simply waited too long to assert their claims.
The NFL is standing by its accord, a spokesman for the league, Brian McCarthy, said yesterday in an e-mailed statement.
“The settlement will benefit the large class of retired players, particularly those in need of medical and financial assistance,” McCarthy said. “This settlement that was negotiated under the close supervision of the court is fair and reasonable.”
While Magnuson heard about 90 minutes of argument, he didn’t issue a ruling today. He expressed concern about players whose careers began in high school or college and who are unprepared for life after football.
“They have horrendous problems and they need an assist,” Magnuson said. “What I’ve not heard today is anything about those unfortunate souls.”
Former New York Jets defensive linemen Gastineau and Abdul Salaam, once members of the four-man unit nicknamed the New York Sack Exchange for its skill in going after quarterbacks, are together in opposing the accord. At the hearing, attorney Eric Lechtzin spoke on their behalf.
“The NFL has used its film of their careers numerous times,” he said. “The NFL has never disclosed the value of that film.”
More than 25,000 settlement notices were mailed to retired players or their known and potential heirs, according to a court filing. Ads were placed in People magazine and Reader’s Digest and broadcast on radio and NFL Network television.
More than 2,100 requests for exclusion were filed by players including former Atlanta Falcons quarterback Steve Bartkowski, one-time Baltimore Colts receiver Raymond Berry, New York Giants defensive back Beasley Reece and Kansas City Chiefs place kicker Jan Stenerud, according to that filing.
Among those joining former Oakland Raider Casper, Pastorini and the other objectors are ex-Jets and Giants place kicker Raul Allegre and Colts punter Rohn Stark.
The accord was collaterally attacked in two subsequent lawsuits, one filed by Pro Football Hall of Fame members Curley Culp, John Riggins and Casper, and another filed by the estate of one-time Raider Jack Tatum. Both were dismissed by Magnuson last month.
The judge said they violated his April 8 preliminary approval order, which prohibited the filing of new cases while final approval of the settlement was still pending.
The ex-players have filed papers stating their intention to appeal that ruling.
“It is time, finally, to let the opt-outs go their own way and litigate their cases,” lawyers for Culp and Riggins said in an Oct. 14 filing with Magnuson. “NFL’s proposed class action settlement has proven to be unpalatable to a wide swath of former NFL players.”
John King, an attorney for Culp told Magnuson today, “there is an almost punitive aspect here.”
The case is Dryer v. National Football League, 09-cv-02182, U.S. District Court, District of Minnesota (St. Paul).