Eyes Wide Open

By Cy Smith
Updated: April 13, 2009

football NEW YORK — Last month, NFL players meeting in Hawaii took a historic step by electing only the third executive director in the history of their union, Washington lawyer and ex-prosecutor DeMaurice Smith.

Now, the question looms as to whether the NFL’s union is ready to make a historic admission that it has, at best, ignored — and at worst, ripped off — its retired players.

Just as we, as fans, often quickly lose interest in once-favorite players who no longer suit up for Sunday games, the NFL Players Association focuses almost exclusively on salaries and benefits for current players. The result has been increasing legal and legislative focus on the treatment of past players.

Last year, a federal jury in California awarded a group of retired players more than $28 million, including punitive damages, after finding that the NFLPA and its licensing arm, Players Inc., had cheated retirees out of revenue from video games and memorabilia.

The best evidence at trial was a series of e-mails between union officials and video-game producers outlining the scheme. Lawsuits against the NFL’s pension plan (half the plan’s board is appointed by the union) have revealed the shockingly small number of hobbled retirees who receive disability pensions.

Hearings before the U.S. House and Senate have cast a harsh light on the whole range of retiree benefits and the union’s unwillingness to level the playing field for retired players.

The jury’s verdict, along with judgments, settlements and congressional investigations, were not just bad luck. The union’s decisions were made at the top, by its longtime executive director.

Although he was a giant, both on and off the field, and left a rich legacy to the NFLPA, Gene Upshaw left no doubt about where the union’s loyalties lay. In 2007, after losing a multimillion-dollar pension case to the estate of ex-Steelers great Mike Webster, Upshaw announced that given the opportunity, the pension plan would make the same decision again.

In 2006, Upshaw responded to criticism of the plan’s handling of disability claims by saying, “The bottom line is I don’t work for [former players]. They don’t hire me and they can’t fire me … They can complain about me all day long. But the active players have the vote. That’s who pays my salary.”

As a legal matter, Upshaw was correct that the union represents current players only, not retirees. But the average career in the NFL is less than four years, which means that as a practical matter, every NFL player is just one hit, one tackle, one concussion away from retirement.

Unlike virtually every other unionized industry (including other professional sports), the NFL cannot be divided neatly into new hires, those in mid-career, and those on the verge of retirement. The next play could be the last play, because of injury, slowing skills or salary cap concerns.

In a different work force, where a fifth or a quarter of employees know they will retire in the next five to 10 years, there is a natural constituency for treating retirees fairly — today’s employee knows he will be retired when he reaches 60 or 65.

In pro football, by contrast, players join the league at age 22 or 23, assume they are invincible, and then leave the game, usually involuntarily, in only a few years.

While coverage of the new executive director has focused on the next round of negotiations with owners, the issue that should be front and center for the NFLPA is its commitment to retired NFL players, who number 13,000 and dwarf the approximately 1,700 current players.

The ranks of these ex-players, and their needs for pension, health, disability benefits, will only continue to grow. Beyond the need to change specific policies, the union needs a new mind-set, a new willingness to engage retired players on their own terms and to treat them as stakeholders.

And as with any organization, change begins at the top.

It’s not easy to follow a legend. But with DeMaurice Smith’s new beginning, he has the chance to turn the page for the union and to provide new respect to the retired players who built the league.

NOTE: This article originated on Street & Smith’s Sports Business Journal on Monday, April 13th.