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.