In the class action brought by retired players against the NFL Players Association based on allegations that the union breached a fiduciary duty to market the likenesses and names of retired players, the trial judge denied the NFLPA’s motion for a new trial.
That outcome was expected.
Not expected was that the decision would be issued in a clear, well-written, seven-page order that provides a concise snapshot of what the case was about.
And, frankly, the facts are troubling.
The theory of liability advanced by the plaintiffs, and accepted by the jury, was that the union persuaded the retired players to assign the right to market their likenesses and names to the NFLPA — and that the NFLPA then did nothing at all to market the players’ likenesses and names.
Moreover, and even more troubling, is the notion that the NFLPA did this merely to prevent some other organization (or the players themselves) from gathering the marketing rights to the likenesses and names on a mass basis, and actually marketing the likenesses and names.  In competition with the likenesses and names of the active players.
“A monumental fact was never adequately explained by the defendants,” Judge Alsup wrote, “how could it have been that defendants lobbied thousands of retired players for fourteen years to sign up for defendants [Retired Players Group Licensing Agreement] ‘program,’ yet never paid one cent to any player under the program?  Put differently, if retired players’ images and identities were really the undesirable ‘dog food’ contended by the defense, they why did they try so hard to sign up the RPGLA class members for so long — only to never pay a penny?”
Basically, Judge Alsup found that the plaintiffs introduced sufficient evidence to support a finding by the jury that the NFLPA acquired a “fiduciary” duty to take steps to market the likenesses and names, and that the NFLPA (for whatever reason) failed to do it.
Most importantly (and most troubling), the evidence supported in Judge Alsup’s view a finding that the NFLPA gobbled up the retired players’ marketing rights so that the NFLPA wouldn’t have to compete with the retired players’ likenesses and names while trying to get top dollar for the active players.
In other words, the jury found that the NFLPA acquired the rights of these potential competitors to likenesses and names of the active players, only to bury the rights to the likenesses and names of the retired players in the back yard.
If true (and the jury found that it is), it’s shameful, and despicable.  The jury essentially found that, under the guise of helping retired players, the NFLPA screwed them, making no effort to market the rights to their likenesses and names in order to preserve the millions and millions that were being generated by the marketing of the rights to the likenesses and names of active players.

That said, the case isn’t over.  Most vulnerable on appeal is the award of $7.1 million in damages, since the plaintiffs introduced no testimony from an expert witness (such as a marketing agent) calculating the money that would have been earned if the NFLPA had properly marketed the rights to the likenesses and names of the retired players.
Judge Alsup found that, because so much money flows from the rights of the active players, the jury was entitled to estimate that the retired players would have made $7.1 million, if the NFLPA had done its job.  But with no basis for determining with reasonable certainty the money that would have been made, any jury award of compensatory damages is inherently speculative.  And, quite possibly, vulnerable to being thrown out by an appeals court.
Here’s how it all might have gone in the jury room:
Juror No. 1:  “Well, what do you think?”
Juror No. 2:  “I think the union screwed those retired players.”
Juror No. 1:  “Does everyone agree?”
(All heads nod.)
Juror No. 3:  “Do you think they’ll give us pizza for lunch?”
Juror No. 1:  “OK, so if the union screwed those retired players, how much money should we give them?”
Juror No. 4:  “Well, the active players made a bunch of money off of that Madden video game.  Millions.  So let’s give the retired players $10 million.”
Juror No. 1:  “That’s a little high.  How about $5 million?”
Juror No. 3:  “Of course, we had pizza yesterday.  Hot dogs would be good today.”
Juror No. 5:  “Can we move this along?  I need to pick up my kids at the sitter.”
Juror No. 2:  “Let’s split the difference and make it $7.5 million.”
Juror No. 1:  “OK.  But that’s too round of a number.  Let’s do something like $7.1 million.  It’ll look like we actually did some type of a calculation.”
Juror No. 5:  “That sounds good to me.  Does everyone agree?”
(More nodding.)
Juror No. 3:  “So does that mean we’re not getting lunch?”
So the union might ultimately persuade an appeals court to set aside the damages award, which would result in a USFL v. NFL-style verdict in which the plaintiff won the case, but as a practical matter won nothing.
Regardless, none of this will be resolved before the union picks a new Executive Director, and the active players who inevitably will be become retired players should consider what their current leadership has done in this case, and demand accountability.


  1. It’s obvious that the jury didn’t properly consider the earning potential of Hall of Fame (and just the run of the mill fan faves). Let’s face it, throwbacks are cooler than the current player jerseys, and cost more to the consumer.
    Take all that money and then add in the time value of money, and 7.1 million dollars is lot closer to 10% of what should have been awarded.

  2. Any chance you have any contact with the plaintiff’s representation that would at least shed the smallest light on why they ultimately settled on the $7.1 million. Just picking a random number like that without consulting any kind of marketing resource seems like a pretty gross oversight if that’s true.

  3. interesting. i also remember robert smith debating kyle turley and trying to defend gene upshaw.
    f–k smith and upshaw. human excrement is what they are, and i might be wrong about the first part.

  4. Why would the union do this to retired players, many of whom busted their asses off for to make sure that the players of today have the money and other benefits that they do. Some of the old timers had to work in the off season just to make ends meet, they put their faith in the Union to do the right thing (medical care, marketing merchandise), and what do they get in return – SCREWED!
    Who in the NFLPA was responsible for this – Upshaw? Some legal eagle or bean counter? It’s wrong, plain and simple…the old timers gave to the game, and to be treated this way by the union…UFB!

  5. I’m thinking along the same lines as jd67. Before appealing that $7.1M judgement, they better make darn sure the calculations don’t come up with an even higher number.

  6. It does not surprise me that the NFLPA buried the rights of the retired players for the benefit of the active players. A prime example of an opportunity to promote retired players that was foregone is the classic teams in the Madden Football video games (Madden). Electronic Arts (EA) included classic teams from NFL history but did not (or could not) use the retired players. In fact, while the skills of the players were recognizable, in the later games, the numbers did not match up. I believe that, in the first few versions of Madden, the classic players actually had their correct jersey numbers. Presumably this lead to an argument from the retired players that they should be compensated. My guess is that either EA was unwilling to increase their licensing fee to include retired players or the NFLPA tried to charge too much. Either way, including the retired players would have reduced the pool of compensation available to the active players. Who would not have wanted the retired players in the game? It certainly would have made the game more fun but likely would not have increased or driven additional sales. It was something that frustrated me when I was a little kid trying to play with the ’66 Packers.

  7. I didnt even read the article, but that has got to be the longest title ive ever seen in my life

  8. Uniforms that would break the bank:
    Unitas – Colts
    Brown – Browns
    Taylor – Giants
    Stabler – Raiders
    Simpson – Bills 🙂
    Greene – Steelers
    Bradshaw – Steelers
    Montana – 49ers
    Staubach – Cowboys
    Hard to believe the NFLPA couldn’t make $1 selling any of those. Bottom line is that they didn’t want any competition. That is why they screwed the retired players. The motive is clear. Like in any other case involving money, NFLPA was selfish.

  9. This all goes back to Gene Upshaw. His line of reasoning that the union ‘only represents current players.’ Until there is a complete change in the line of thinking that the NFLPA represents all NFL players – past and present – these type of conflicts regarding compensation and benefits will continue.

  10. The players need to overhaul this frenemy that is the PA. Everyone knows that the league, and the PA who follows it, treats players like disposable parts. No other pro sport even comes close. Just look at Ricky Williams and how rapid his descent from superstardom was. Or how quickly Randy Moss was considered a discard. Soon it’ll be Favre and LT. The only league where you can go from legend to nobody in less than 18 months. It’s these guys whose health is often sacrificed to the alter of someone else’s profit. The least they can expect is that their union can get their shit together enough to not ignore this. The irony is that this is the ultimate team game.

  11. and mr. florio, you’d seemed such a realist up to this point. the average player is certainly not paying attention to the marketing rights case, and wouldn’t see the importance of this situation unless explained by the team rep.
    said rep. may or may “get it,” it being the future implication for themself and their peers. even if they understand they may not wish to open a can of worms about what the union has been up to.
    most players care about their salaries, an ever expanding salary cap, and the labor agreement. although the average career is 3 years or less, retirement and its income prospects does not loom on today’s players as it did the plaintiffs in this case.
    you’ve really got a fantastic website here though. saw you in a draft preview of NFL Network last spring and have been almost every day since. KUDOS good sir! i wonder if in your day job you’ve ever had the chance to holler at a client, “WHO TOLD YOU TO PUT THE BALM ON?”

  12. in addition to vandizzle’s “Madden Theory,” it is a FACT that publisher 2K Games / 2K Sports offered the NFLPA TWICE what EA offered them for the rights to use the names and likenesses of certain retired players (2K could not use active players because once NFL 2K5 came out and was proven to be a vastly superior game than the current year’s “Madden” title, EA purchased the exclusive rights to the NFL) for use in 2007’s “All-Pro Football 2K8.” For no reason other than apparent stubborn loyalty, the NFLPA screwed the retired players out of making twice the money that they could have on that deal, all because EA was afraid of competition. Competition drives the market. Hell, we’re talking about a video game based on a COMPETITIVE sport. Completely disgusting behavior.

  13. It’s pretty messed up that you gave your bodies to the NFL and now in their old age they can’t market their OWN likenesses.

  14. I would gladly pay the same going rate paid for current players jerseys for a any number of late sixties L.A. Rams jerseys. Provided they were in fact cut from the same pattern and as best as possible replicated with in the same fabrics of the time.
    My wife knowing my specific wish to own a throw back for Roman Gabriel bought one from an alleged credible company but when arrived it was nothing more than a Peyton Manning jersey with Roman Gabriel’s last name sewn on the name place.
    In others words…
    If I had the option to purchase an authentically replicated Jersey I would then gladly proceed to put some cash into the pockets of some retired player and having said so, I’m also quite sure I don’t represent some statistically infinitesimal minority of NFL fans.

  15. great post, thank you… the best part for me, though, is the back and forth between the jurors. or maybe i just needed the comic relief in the face of what also makes me terribly sad…

  16. That scumbag Upshaw really threw his fellow ex players under the bus..I hate to rip a dead guy but it is the truth.The way the guys that made that game great are being treated is disgraceful.Especially by a former player..

  17. I’m not surprised at all.
    Time for more than just a new Executive Director. It’s time to clean house or start ‘breaking necks.’

  18. It was extraordinarily cynical and short sighted for the NFLPA to assume the market size was fixed and that marketing retired players would hurt active players.
    If the NFLPA was smart, they’d quickly pay the $7.1M and move on. Given all the stories over the last few years about how poorly they treat their retired players, fighting them on this would just make them look even worse. Pay it and move on to finding ways to maximize the value of the asset they are sitting on.

  19. Pastabelly’s right – there probably would be a killer market for throwback stuff for those of us that remember those players…or for some of the kids that think that “old” stuff would look neat at school or wearing it for a pick-up game…hard to believe that the NFLPA would do this crap…here’s the kicker, a throwback Upshaw jersey would probably sell (and the money used to help his fellow vet players, as well as throw some extra jack into his wallet).
    I hope that the current players see what happened – it could happen to them too, real quick

  20. Florio, does the NFLPA get to keep the rights or does the judgment madate the return or sale?

  21. Juries often pick numbers that have little relation to the numbers “blackboarded” by the Plaintiffs. Quite often, it’s just a “seems about right” calculation. Unless the appeals court fidns a basis for deeming the award grossly unfair, which doesn’t happen often, it will likely stand. Florio rightly notes that judges rarely issue opinions this detailed (and well written) in response to motions for new trial. His explanation of the facts makes it much less likely that the verdict will be reversed on appeal. Alsup also doesn;t get overturned very often. He’s a very respected judge in that Circuit.
    Sorry to go all lawyer on you guys. GO STILLERS

  22. Would be poetic justice if the only old timer’s jersey’s and likenesses that are not allowed to be used are those of Upshaw, Robert Smith and all the members on the board.

  23. If I were a retired player, I’d lobby the current players to decertify this union and get another one, perhaps one that has some background in labor relations.

  24. Hey, if the NFLPA doesn’t think there’s any $$$ in the retired players, perhaps they ought get in contact with a certain apparel company here in the home of our (hopefully) future NFC Champions. Mitchell & Ness here in Philly makes authentic jerseys from former teams/players and sells said jerseys for upwards of $350-500. If Jay-Z or some other “star” wears one on MTV or some gossip show, sales go through the roof. Mitchell & Ness makes a LOT of coin doing this because we yearn for the days of our youth and some will pony up the ducketts. Perhaps now there’s some underprivlieged youngster who really wants an authentic Eli, LT, Lewis jersey, but it just aint in the budget. At some point in the future, said kid might grow up and become, say, a successful attorney in, say West Virginia, and indulge his past wants by dropping a couple Benjamins on a jersey. That’s called looking to the future, but I suppose these days, that type of thinking is considered “short-sighted”.

  25. The NFLPA is supposed to protect the “best interests” of players from any unfair treatment from the NFL……I guess the players need a new organization to protect them from their own union. What a sham!

  26. While there may not have been expert damage testimony, I have a hard time believing that the retired players’ attorneys didn’t submit some damage-related testimony to form the basis for their claim. They could have introduced evidence of the NFLPA-comparable revenue or even used the adverse testimony of the NFLPA accountants/financial employees. Often damage evidence is introduced by lay witnesses or the plaintiffs themselves. If so, and there’s a reasonable factual basis for the jury award based on this testimony and evidence, the NFLPA appeal will fail.
    Besides, you have to wonder if the new director, once appointed, won’t immediately attempt to settle this case to avoid all the bad PR. With the upcoming collective bargaining negotiations, you’d think they would want to turn the PR machine in their favor — this is not a good start.

  27. “(2K could not use active players because once NFL 2K5 came out and was proven to be a vastly superior game than the current year’s “Madden” title, EA purchased the exclusive rights to the NFL) for use in 2007’s “All-Pro Football 2K8.” For no reason other than apparent stubborn loyalty, the NFLPA screwed the retired players out of making twice the money that they could have on that deal, all because EA was afraid of competition. Competition drives the market. Hell, we’re talking about a video game based on a COMPETITIVE sport. Completely disgusting behavior.”
    That old tired line? The FACT is that the exclusive rights were open to ALL bidders. 2K Sports submitted thier bid just like EA Sports did. 2K Sports tried to stifle competition just like EA did. It’s no different than how they secured the MLB rights and snuffed out a game (MVP Baseball) that was vastly superior to the crappy MLB 2K games that have been coming out since. I agree that NFL2K5 was the better game. I also agree that competition is a good thing. But 2K is every bit as guilty as EA in this regard. Just because they didn’t win the NFL bid doesn’t absolve them of guilt. And while NFL2K5 was the better game, APF2K8 was crap. Just a bare bones port of a 5 year old game engine. 2K5 was great for its time, now its antiquated.

  28. And this is what happens when you put a dumb Offensive lineman in charge of business matters. If I were the players I’d be trying to bankrupt Upshaw’s family, the way that selfish bastard collected millions of dollars while treating the former players like shit. How he ever kept his job is more of mystery than how Matt Millen was around as long as he was.

  29. Not that I disagree with Mastro on the subject of Upshaw’s potential lack of intellect, but I need to defend my O-line buddies. Offensive Lineman tend to be among the smartest players on the field.

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