A $100 Million Gridiron Battle

By BASN Wire Services
Updated: October 6, 2008

National Football League PITTSBURGH — Nearly 2,100 former pro players, including two dozen ex-Steelers, say they’ve been unfairly roughed up by the National Football League Players Association and want a jury to award them $100 million in damages, according to the Pittsburgh Tribune-Review.

The lawsuit claims the players’ union and its marketing wing, Players Inc, botched multimillion-dollar deals with 96 vendors that use the likenesses of athletes in ads, collector cards and video games. The trial is scheduled to begin Oct. 20 in San Francisco.

The union’s lawyer, Jeffrey Kesler of New York, predicted the jury will toss it.

Former players, however, want jurors to hear their case, especially key allegations that union leaders conspired to fool video game titan Electronic Arts into “scrambling” the images of former stars on the block-bluster “Madden NFL” series of games, stripping the retirees of lucrative royalties.

Electronic Arts annually pays the union between $25 million and $30 million to license the faces and features of active and retired players. Neither the company nor the NFL is a defendant in the lawsuit.

The lawsuit claims union officials began advising Electronic Arts designers as early as 2001 to erase some retired players’ jersey numbers and likenesses in the “all time” or “historic” game rosters, while retaining other identifying characteristics such as age, weight and athletic ability.

The Madden 07 installment “scrambled” images of 612 prominent NFL retirees on 143 different “vintage” teams named in court documents. That kept those ex-athletes from getting reimbursed by the union, according to the lawsuit that’s spearheaded by Hall of Fame cornerback Herb Adderley.

Allegedly rooked stars include local legends Robin Cole, Jack Ham, the late Ernie Holmes, Donnie Shell, L.C. Greenwood, Kevin Greene and Dermontti Dawson and 22 other black and gold standouts on Super Bowl teams in the 1970s and 1995.

“My kids played it. I remember they had it,” said Cole, a former Pro Bowler.

U.S. Department of Labor forms show that Cole didn’t receive a penny from the union or its Players Inc. subsidiary in 2005 or 2006, despite the popularity of the vintage Steelers’ Super Bowl teams.

“What would a fair person do here? This isn’t a hard question. We know who the 1970s Steelers are. Doesn’t that team deserve to get paid when their likenesses are used to make money for other people?” said attorney Ron Katz of Palo Alto, Calif., who represents the retired players.

Kesler says past pros fail to understand how diligently the union toiled on their behalf.

“This is the perfect example of the adage, ‘No good deed goes unpunished.’ The NFLPA is the only sports union that went out of its way and tried to find opportunities for retired athletes,” said Kesler.

Side Deals

The union had sought to create a pool of retired talent attractive to corporations seeking former stars to hawk their products. In 2003, the union started gaining permission from retired pros to use their images.

The union promised to pay each retired pro an equal cut of the proceeds, the lawsuit states.

That didn’t seem unusual to the ex-athletes because that’s how active players are paid for their images — a fee is deducted by the union, and the rest is divided equally with each athlete, whether he’s a star or sits on the bench.

To the union’s Kesler, the reason the program didn’t pay for most retirees was because younger fans dominate the market for gridiron gear and games and many of them don’t know older stars. He said the union made a good-faith effort to find dollars for ex-pros, eventually brokering more than $30 million in other deals for them over the past several years, but the program flopped overall.

“The (union) hoped and expected that they could find the same kinds of big deals for retired players that they do for active players. Unfortunately, that never materialized. The marketplace determined that companies were only interested in small groups of some players,” said Kesler.

A Tribune-Review analysis of Department of Labor filings charting union disbursements to retired players between 2005 and 2006 found career rushing champ Emmitt Smith topped the list with nearly $757,000 in compensation. But only one out of every 20 retired players made money through union-brokered side deals.

Most money went to a select squad of ex-players, mostly well-known quarterbacks or pros who became broadcasters.

Citing orders signed by Players Inc’s Davis and recently deceased union executive director Gene Upshaw, retirees in their lawsuit claim the union kept 69 cents of every dollar the former pros earned as fees.

“I had my day in the sun. I can deal with that. But I can’t accept the way the union and the NFL have treated us. They call us ‘family’, and we’re ‘family’ until they want to divide up the money,” said Dave Pear, 54. a plaintiff in the lawsuit and a former Pro Bowl nose tackle for the Oakland Raiders.

The union’s Kesler told the Trib that about 98 percent of what ex-players made in the union’s program was returned to the former pros. He said active pros subsidized the initiative by funding Players Inc and the rest of the union’s marketing apparatus.

Scrambled Steelers

Katz and the retired pros claim the union set them up to fail. They point to a recently discovered document as one example.

In the May 31, 2001, email, union assistant vice president of multimedia LaShun Lawson advises Electronic Arts executives to “scramble” the identities of former pros that the video game company didn’t want to pay. The letter also went to Players Inc President Doug Allen.

No longer with the union, Lawson didn’t respond to Trib questions. Electronic Arts and union officials, citing the pending trial, also remained mum.

Union attorney Kesler said Lawson’s message was a commonsensical reminder that Electronic Arts designers couldn’t use players’ likenesses if they didn’t pay for them.

Some retirees don’t buy it.

“The lawsuit isn’t just about the money. It will peel back all the secrecy,” said Hall of Fame lineman John “Hog” Hannah.