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The New York Times
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November 12, 2008

Court Verdict for N.F.L. Retirees Starts New Era


When a jury in San Francisco on Monday found in favor of more than 2,000 retired N.F.L. players in their class-action lawsuit against the Players Association, it did more than award the retirees $28.1 million in damages. The verdict may help to delineate a new relationship between active and former players — positively or otherwise.

The two sides have clashed in the news media and before Congressional committees over the past two years, usually regarding pension and disability payments that many retirees have criticized as unfairly low. Monday’s ruling — in which the jury awarded the players $7.1 million in compensatory damages and $21 million in punitive damages — involved only the union’s handling of licensing revenue, but it will almost certainly affect future negotiations between the two groups.

One retired player, the former Minnesota Vikings lineman Brent Boyd, said on Tuesday that he hoped a new era of cooperation could be forged, particularly in the wake of the death of the longtime union chief Gene Upshaw in August. Upshaw, whose replacement has not been selected, had been a lightning rod for criticism by retirees.

“I think definitely it will have ripple effects,” Boyd said of the verdict. “I’m hoping it will cause some fresh thinking and cooperation with retired players instead of all-out war, which is what we’ve been getting.”

The lead lawyer for the players’ union, Jeffrey L. Kessler, warned that the verdict would hurt the relationship between active and retired players.

“If you’re an active player, you have to look at this and say, ‘We try to help and this is what happens to us?’ ” Kessler said. He added that he would file motions for the verdict to be set aside and, if that fails, to appeal the case.

Ending the three-week trial in United States District Court, the jury on Monday found that the union’s licensing subsidiary, Players Inc., had used the identities of thousands of retired players without compensating them. A key example was the union’s agreement with EA Sports, which generates at least $25 million a year for the use of player identities in the popular Madden video game series.

The majority of sports licensing revenue derives from the use of active players. The Madden game features more than 100 past teams, like the 1966 Green Bay Packers, and players on those teams argued that although their names and pictures had not been included, many of their individual characteristics — talent level, experience, height and so on — were. The players argued that the group licensing agreement they had signed with Players Inc. required that revenue from such deals be shared with them.

Herb Adderley, who played cornerback on the 1966 Packers, was the name plaintiff for the class that filed suit.

“They betrayed us,” Adderley said of the union in a telephone interview. “We put our trust and faith in them, and they betrayed us.”

Messages left at the union offices for the spokesman Carl Francis and the union’s acting executive director, Richard Berthelsen, were not returned.

Boyd, one of the most vocal retirees on disability issues, said that the licensing case acted as a public referendum on Upshaw’s often-contentious handling of retired players.

Upshaw and his supporters contended that no sports union had ever done more to benefit its retirees, citing substantial pension and disability coverage increases. As more retirees began going public with criticism, he often fought back, at one point threatening to break the neck of one fellow Hall of Famer.

Speaking to The New York Times the day after Adderley filed the class-action suit in February 2007, Upshaw said that retired players, in general, were not marketable and did not deserve any licensing money.

“We could have the greatest dog food in the world,” he said, “but if the dogs don’t like it, we can’t sell it. Put that at the top of the story.”

The lead lawyer for the players, Ronald S. Katz, referred to Upshaw’s dog food remark five times in his closing argument, and later said he believed the remark played a significant role in the jury’s award.

“Gene was very rarely held accountable for how he treated retired players, and this jury held him accountable,” Katz said.

Active players have yet to vote on Upshaw’s successor, who will not only deal with retirees but also bargain with the N.F.L. on pension and disability issues. Regarding those active players, Boyd said: “If they had half a second to read about this trial, they should say, ‘This leadership team just cost us a fortune.’ They should realize they’ve been bamboozled all this time.”

Should the $28.1 million award stand, each retired player in the lawsuit would receive about $10,000 after lawyers’ fees. The total would represent a cost of about $20,000 apiece to the roughly 1,500 current active players.

Kessler, in his closing argument, suggested that the union would be substantially harmed from such a verdict — particularly as it prepares to withstand a possible owners’ lockout before the 2011 season. Kessler said in an interview Tuesday that the verdict could be only a short-term fix for retirees.

“Retired players have a lot more that they get in collective bargaining than $10,000 in a one-time check,” Kessler said. “Current players contribute more than $80,000 per player per year toward retired player benefits like pension, health and disability. I would think that’s what the retired players would be most interested in preserving here.”