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Back in 2009, six former NFL players; Dan Pastorini, Fred Dryer, Elvin Bethea, Jim Mashall, Joe Senser and Ed White filed a class action lawsuit saying that they objected to the NFL using their likenesses unless they were compensated. The players said that NFL Films “has used the names, images, likenesses, and identities of former NFL players in its various videos to generate revenue and promote the NFL.”
There’s no question that those films have helped the NFL earn a substantial amount of money and have improved their brand name considerably.
In 2013, the class action settlement was approved by Judge Magnuson. The centerpiece of the agreement was the establishment of a Licensing agency operated by former NFL Players and a non-profit organization called the Common Good Entity. The NFL has agreed to pay $42 million, over eight years into a Common Good Fund. That would require each team to contribute a whopping $164,062 for each year of the agreement.
The NFL also agreed to set up a licensing agency, and pay $100,000 worth of media value (not money) to that licensing agency every year until 2021. The new licensing agency is supposed to be a “one-stop shop” for anyone who wants “to purchase the publicity rights of former NFL players.” The problem with that statement is that there are a lot of other "shops" out there that can give marketable players a much better deal then the one this Settlement is proposing.
The original six players objected to the settlement because it didn’t include any direct financial payments for the players - among other things. You can read why they opposed the Settlement at this link: Why we oppose the Settlement: Fred Dryer and the Original Plaintiffs.
I supported those players then - and I still do today. Over 2,000 former players opted out of the Settlement because they knew there was nothing in it for them today, tomorrow or any time in the distant future. The Culp v. NFL Films lawsuit, for players who opted out of the Dryer settlement, continues. It was transferred to the Minnesota Federal District Court, along with the individual opt out cases originally filed in Pittsburgh.
On November 22, 2013 Bob Stein, the lawyer for the original six, joined forces with the law firms of Robins, Kaplan, Miller & Ciresi and Ward & Ward and filed an appeal of the Fred Dryer vs. National Football League Settlement.
The following statement in the appeal says it best: "Nearly all of the putative class members played long before the days of multimillion-dollar contracts. The NFL earns record revenues by continuing to use their identities in media presentations and promotions. This class-action suit sought to right a fundamental wrong: the NFL uses its retired players' identities to bolster its profits without providing the players fair compensation."
Unfortunately, we recently learned that our appeal to the 8th Circuit U.S. Court of Appeals was denied. They upheld the decision by a lower federal court, which approved the class action settlement.
In one of his reasons for denying the appeal, Judge Bye said “If the players’ publicity rights are as valuable as appellants claim, the players should be able to realize the value of their publicity rights through the licensing agency.”
The problem with the Judge’s statement is that it doesn’t recognize the fact that we are not as marketable today as we were back when we first retired from the NFL. The Settlement doesn't pay us anything for all the years that NFL Films and the NFL profited from using our images and it doesn't give us the right to use or share in the profits from future sales.
The only players that "might" benefit from the new Licensing agency are the Hall of Fame players and some of the high profile players that are just retiring from the NFL. But keep in mind, some of those players already have the NFL, the NFLPA and the Pro Football Hall of Fame paying many of them for the right to use their images and other promotional activities.
According to the Settlement, the players that get paid via a licensing agreement will be required to contribute 25% of the money back to the new Licensing agency which will then give the money to organizations – via the “Common Good” entity - which will give money to charitable type organizations. Former player who are deemed "in need" will then have to apply to those organizations to receive money. This is just duplication....we already have several funds like the NFL Players Association P.A.T. (Player Assistance Trust) and the NFL Player Foundation grants, and the Gridiron Greats Fund that help players in need. The P.A.T. doesn't even have enough players applying for grants, so they started giving some of the money to former players that run football camps and other organizations and activities.
Bottom line: If you're doing okay financially, don't bother applying to the Common Good fund.
Judge Magnuson tried to make this case look like it was being litigated for the sole purpose of helping our less fortunate alumni brothers, and although that is a worthy cause, it was not what we were trying to accomplish in this case. The class action lawsuit was intended to compensate all of us for the NFL’s 50 years of using player images. It would have benefited everyone - from the HOF player - all the way down to the average Joe.
We all contributed to the NFL’s success. Jim Brown didn’t run down the field all by himself. He had blockers in front of him and you can see them in all the films and DVD's and highlights that are broadcast morning, noon and night by the NFL Network and by the TV and Cable companies during the season. Football is a team sport – and this lawsuit was initiated to recognize the fact that we all contributed to the success of the League - and therefore we should all be compensated. The lawyers that negotiated this Settlement could have easily devised a method for determining how much money a specific player would receive based on the number of years they played in the NFL. If someone played 10 years, they would get more than someone who played 2 years.
That’s my stump speech….. and I wish I could yell that from the top of my lungs to all the Appellate Judges that will probably put our Petition for Rehearing in the round filing cabinet. They want to clear their summer calendars and enjoy a peaceful time watching the NFL pre-season without all of us pesky former players distracting them from the comfort of their luxury suites at the stadiums.
Last week, 3 of the original 6 NFL Publicity Rights plaintiffs (Jim Marshall, Dan Pastorini, Joe Senser) filed a Petition for Rehearing. Jed Weaver, who had objected to, then appealed the original Dryer settlement, also joined in the Petition. It requests the entire 8th Circuit Court to reconsider the ruling of the 3 judge panel which heard the initial Appeal of the Dryer case settlement.
The other 3 original plaintiffs, Fred Dryer, Elvin Bethea and Ed White, have appealed the Summary Judgment ruling against them in their individual cases to the 8th Circuit, but have not yet received a ruling or date for oral argument.
The original 6 Dryer v. NFL plaintiffs continue to do everything they can to fight for all players' rights.
The fat lady hasn't sung yet!
