The BIG Payback (Part One)

By Michael-Louis Ingram
Updated: January 20, 2009

Item: In San Francisco on January 13, Judge William Alsup upholds a $28.1 million dollar award approved last November in a class action suit by over 2000 retired NFL players against their union, NFL Players Association and their marketing arm, Players, Inc.

Cue James Brown, please…

National Football League Players Association PHILADELPHIA — Like the syncopated, guitar clippings of Jimmy Nolen (who played guitar like Paul Warfield ran pass patterns), the retired players who built the National Football League are beginning to get into a groove as they successfully repel a second wave of NFLPA legal muscle.

This “second down” of sorts in what some would call malicious legal wrangling seems to merely echo the sentiments of the original ruling handed down in San Francisco.

For Tony Davis, a six-year veteran who played for the Cincinnati Bengals and Tampa Bay Buccaneers, the denial of the appeal brought a lilt of temporary joy, which gave way to the reality of another victim of an ever shrinking economy.

“‘The violation of fiduciary responsibility’ cited by the court in the first ruling was a long-winded way of saying, ‘they’re guilty of stealing from us,’” said Davis on an interview with the radio show The Football Reporters Online. “And this deliberate resistance to pay out the pittance they’re on the hook for is tantamount to being buried alive.”

Every Dawg Has Its Day

(“We could have the greatest dog food in the world, but if the dogs don’t like it, we can’t sell it. Put that at the top of the story” – deceased former NFLPA Director Gene Upshaw in a New York Times interview referring to the worth of the retired players’ images)

Davis went on to explain in the interview the frustration that came in attempting to gain knowledge about his post – football career. “In 1977, Marvin Cobb and I wondered aloud about our futures in the storm of free agency to come.

“For all the noise that was made about free agency, only a handful of players make any real money from it – the superstars; with the average career span being 3.5 years, we were more concerned about pensions than free agency.

“If we attempted to get this information through a player representative, it was further muddied because of the term limits imposed by the union on player reps — player reps serve two years and then they’re out. So by the time you get to begin to negotiate your way through the mess, your ‘access’ is denied.”

More indication that something other than music was funky came out when Davis spoke of another union – related event in the 1970s.

“I wanted to speak at a meeting regarding what can we do for our pensions – but I was told that if the matter were brought up we (myself and Cobb) would’ve been shown the door and escorted from the meeting.

“Later when Upshaw was in front of the microphones, when the subject of pensions came up, he said since no one brought it up at the meeting, there was no objection as to how affairs (for the retired players) were being handled.”

And handled they were…but not to the tune of reverence for gladiators of old, complete with narration and orchestration; rather to the disharmonious chords of deceit and disrespect as the futures of disposable commodities get played like air guitars…

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 — (Excerpted from Judge William Alsup’s statement of denial on all post – trial motions).

Without the $21 million in punitive damages, the retired players would’ve been hung out to dry in continual litigation which would eventually cost more than the amount awarded.

Third Down

But NFLPA spokesman Carl Francis begs to differ. “We have always looked out for the player’s interests,” insists Francis, “and have developed several programs specific to their needs.”

After forwarding said information to BASN, Francis was asked about the “88 Plan,” named for Baltimore Colts Hall of Fame tight end John Mackey, which provides treatment for players suffering from concussions and their long term effects, among which include early – onset dementia. “This (program) is one of the best the union offers.”

Davis, however, would tell you different. “That plan as it exists right now,” muttered Davis, “applies to only 89 out of 9000 players.”

Bernie Parrish, who served as point man on the original lawsuit, elaborated further as an on – air guest in a previous edition of The Football Reporters Online. “The strategy of their (NFLPA) legal counsel is to “delay, deny, and hope we die,” said Parrish.

“But with this ’88 Plan,’ the financial foundation it was built on was shaky to begin with.

“The plan brags about how a million dollars was put into it to get it going; but the lawyers for NFLPA have spent twice as much in litigation to fight us getting our due.

“Eric Holder, who is president – elect Barack Obama’s choice for attorney general, is a partner at the law firm of Covington & Burling, which spent $1.65 million to fight us in court; in addition to another lobbying effort on behalf of the league to the tune of $400,000.

“If Holder is confirmed, I fear he will continue to operate in the best interests of everyone – except us.”

Material about the NFL benefits plans were also sent to BASN by a league representative – and the information turned out to be the exact same info on the “88 Plan” we received via e – mail from NFLPA.

While my corporate role model, Mr. Nino Brown, is quick to say, “Money talks – and bullshit runs the marathon,” Mr. Davis sees perhaps another option. “If spending twice as much to keep us from a benefit you present in the guise of ‘assistance’ is your idea of helping — then don’t do me any damn favors.”

“When asked if the possibility of thousands of other retired players who were not part of this class action suit would consider taking a similar course of action, Davis paused before saying – “absolutely.”

Next Time: Drop that joystick! Boycotts, government audits, and a gathering of friends “for benefits” in: The BIG Payback, Part II: “I Don’t Know Karate…But I Knows Ka – Razor!”

(Yes we do!)