Shedding Some Much Needed Light

By Tony Davis
Updated: January 24, 2009

EDITOR’S NOTE: The following is a letter written by former football player Tony Davis to his fellow members of the NFLPA. Davis is serving as a guest columnist for BASN.

Footballs NEW YORK– As you know, a class action suit was filed against the NFLPA and a jury returned a verdict for the plaintiff class of retired NFL players who had signed a “Retired Player Group License Agreement”.

It should be noted that the acting Director of the NFLPA, Richard Berthelson was a key witness for the NFLPA, but despite his testimony, the jury found that the NFLPA had breached its fiduciary responsibility and their duty to market retired players and compensate them for the use of their images.

The verdict was for $7.1 million in compensatory damages and $21 million in punitive damages. After the trial, the lawyers for the NFLPA filed a motion to set aside the verdict. After careful consideration of all the facts, Judge Alsup denied all post-trial motions from the NFLPA’s lawyer, Jeffrey Kessler.

In Judge Alsup’s ruling, he made a few statements that summed up the reason he thinks the jury came to the decision they made. I have highlighted some of the more important conclusions he made.

He said “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.

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 “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?

Given the golden opportunity presented by the Madden vintage-team game, the jury could reasonably have concluded that the true motive was to deter or to head off any competing effort by any third-party promoter (or by the retired players themselves) to license them as a group and to lull the retired players into misbelieving that defendants were out on the hustings trying to generate revenue for them.

Instead, defendants gave complete priority in their group efforts to marketing active players. Defendants got to keep a large share of the active player group money (and very little of any retired player group money) so the incentives were skewed to favor marketing the active players to the exclusion of the retired players.”

The Judge also made these comments about the amount of money awarded: “The verdict is sufficiently low in relation to the vast sums negotiated for the active players and was sufficiently close to the ad hoc totals for retired players that by these benchmarks the verdict was reasonable.”

“The evidence as a whole supported the conclusion that had defendants tried to market the RPGLA class members rather than letting EA scramble their identifies, a group royalty in the general vicinity of the verdict would have been obtainable. When viewed against the massive amounts paid for active player group rights, the $7.1 million was reserved.”

After reading the Judge’s analysis and commentary, we would hope that the NFLPA Executive Committee and the Player Representatives would reconsider appealing the verdict.

We do not believe that the active players were fully aware of what was being done by the executive staff and the administrators of the NFLPA with regard to the marketing and compensation of retired players that signed GLA’s.

Although we do not hold you totally responsible for the actions that led to the filing of the class action lawsuit, we hope you will look closely at the administration of the NFLPA and realize that there are people still working there that put you in the position you are now in. Make no mistake about it. They work for you. You are their employer and you have every right to hold them accountable for the actions that led to this lawsuit, verdict and monetary award.

Remember this……the jury, after listening to hours of testimony and looking at all the evidence, came to the conclusion that not only should retired players be compensated for the use of their images, but that the NFLPA should be punished (punitive damages) for their treatment of retired players.

If a jury that had no prior knowledge of these issues could come to this conclusion, then it seems to us that it is time for some major housecleaning at the NFLPA. You have the power to make those changes. Change we can believe in! You know the lessons of teamwork… are only as strong as your weakest link. If that link to the past isn’t removed then eventually the chain will break.

Retired NFL players are a unique fraternity of men. A fraternity that all of you will someday be joining. For most players, that day will come sooner than they want it to, but while you are still an active player we want you to understand the issues that are important to us.

When Gene Upshaw and Doug Allen first put forth the idea of helping retired players through a marketing strategy that compensated all retired players, we were thrilled to say the least. The idea was an exact replica of what you and all active players enjoyed by signing a Group Licensing Agreement.

Just like active players, all retired players would share equally in the royalties whether we were a perennial bench warmer or the MVP of the Superbowl. As you now know, that never happened. When we complained, no one at the NFLPA would listen to our concerns and as a result we were forced to take legal action.

Now that the Judge and jury have spoken, we want to put the past behind us and begin healing the wounds that have divided active and retired players. The easiest way to do that is for the NFLPA Executive Committee and the Player Reps to instruct their attorney Jeffrey Kessler to end the legal battle that has pit us against each other and has cost the NFLPA millions of dollars in legal fees.

This is not the time for you to sit back and let others make the decisions for you.

“The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.” Martin Luther King, Jr.

Sincerely, Tony Davis