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Spencer Kopf: Making an Informed Decision for Yourself

Aug 19, 2013

“In a time of universal deceit telling the truth is a revolutionary act.”

– George Orwell

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DecisionsAt the request of pre-1993 former NFL players, I have decided to write an opinion regarding certain matters pertaining to the settlement offer proposed in the pending lawsuit dealing with NFL Films. Based on the information provided through Dave Pear’s Blog, I have drafted the following opinion.
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There has been a recent Settlement offer by the NFL in litigation regarding NFL Films. The terms of the offer are supposed to satisfy a class of retired players who have exerted their right to take legal action on the issue of the infringement of their names, likenesses and images. The six original named plaintiffs have rejected the settlement offer. The class of plaintiffs they represented, however, has yet to decide whether the terms of the agreement are understandable and justifiable and whether there are any hidden, unacceptable implications lurking in the language of the agreement.
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The terms of the Settlement offer do have certain implications and to see them is to read those terms in bold large print.
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The price is measly, not to mention, insulting. That is especially true when one considers by what means and how much of those funds will actually be distributed. A large portion of the funds apparently will go to legal fees almost immediately. The balance of the remaining funds is to be paid through charities over an approximate 8-year period. Should players who made the determination to opt out choose later to litigate their rights that original settlement offer figure could be further reduced by as much as approximately $13 million for the defense of the NFL in those cases.
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There will, of course, be some money remaining after all of that. (Not quite as much as Roger Goodell makes in a year by the way.) But where are those funds actually going? They go to a charity and not directly to the former players. The alleged terms of the agreement acknowledge that the former players can apply to gain a potential access to these funds by seeking them from one of the charities.
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And for that remote possibility, all the former players have to do is surrender their right to sue them on these issues ever again. Their faces. Their names. Their likenesses. Those will belong to the NFL to do with as they please forever.
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Now, there’s a sweet deal, no?
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This isn’t rocket science! How much income over the years do you suppose has already been derived from the association with NFL Films for projects that made commercial use of your names, images and likenesses? Millions upon millions would be a very modest guess.
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The fact that marketing companies are bidding to represent former players to market and/or license them is a lame justification for the settlement’s current terms and conditions. Does anyone honestly believe that the rest of the rank-and-file retired player list will all of a sudden start to gain significant economic benefit because of the hiring of one of these candidate marketing companies?
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Over the years, the public relations and marketing industry have acknowledged by their negligible participation that it is not economically feasible to represent the non-superstar athlete.
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Does anyone believe that losing one’s ability to participate in any past, present and future economic stream created by NFL Films is a good idea? By agreeing to the current settlement proposal does anyone not realize what the ramifications would be? And what I would like to know most of all is “What price is sufficient to sell your face, your name and your likeness – FOREVER?”
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Affected individuals need to ask themselves if the current proposed settlement agreement truly benefits the best interests of each pre-1993 retired NFL Player.
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My question to all of those others who are a party to the issues at hand is, “Do you have a conscience or are you consciously indifferent (like Gene Upshaw)?”
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Gentlemen, my thoughts are with you but the decision is yours.
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EDITOR’S NOTE:

YOU MUST OPT OUT NOW!

This is the reason it’s vital that each and every retired player who doesn’t want this do-nothing Settlement offer needs to send in your Opt Out paperwork IMMEDIATELY if you haven’t done so already. We’ve added a countdown clock to the upper right sidebar of our Blog page so you can see how little time you have left. To OPT OUT of the NFL Films Settlement Offer, please refer to the 12-page overview that was recently sent to members of the Class (click HERE to read the document and your options).
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We’ve also uploaded a copy of the Hall of Famers’ letter to Commissioner Roger Goodell to Scribd for easy viewing and to make it available for downloading and printing. You can also click the Enlarge icon in the lower right corner of the menu at the bottom of the viewing screen to go Full Screen for easier reading (just hit the ESC key to close):
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Spencer Kopf has been a licensed attorney in the state of Texas for 36 years, and offers expertise in the areas of corporate law, criminal law, sports and entertainment law, civil litigation, and contract negotiations.
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At the age of 16, Spencer attended the University of Pennsylvania as a superior high school student. He attended Oklahoma City University on an academic and debate scholarship where he earned a B.A. and his Juris Doctorate. In 1982, he was appointed to the bench as a Municipal Court Judge in Collin County, and three years later, elected by his judicial peers to serve as the president of the Texas Municipal Courts Association – the first Municipal Court Judge from North Texas to be so honored. At 35 years old, Spencer was the youngest judge to ever serve in that capacity. He was also nominated by the Supreme Court of Texas to serve on the Judicial Qualifications Review Commission. At one point, Spencer represented one third of the Dallas Cowboys roster as their attorney.
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Recently, Spencer co-authored the book entitled “The Unbroken Line” with former Dallas Cowboy Billy Joe DuPree. The book recounts the true story of the 1982 National Football League labor strike which he was instrumental in resolving.
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NFL Films Settlement Poll
Is the NFL Films Settlement Offer Good or Bad for me?

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6 Responses so far | Have Your Say!

  1. Rick Eber
    August 19th, 2013 at 1:59 pm #

    Rick Eber

    Spence,

    Thanks for sharing your thoughts on the Dryer vs. NFL settlement. It was moving to read your incredible clarity on this – at least to me – complex settlement!

    You make it so clear. Trading our images FOREVER… and for what?

    Reading the article I couldn’t help but think of the old axiom “No deal is better than a bad deal.”

    The past few months, many retired players – including myself – have shared reasons why this deal stinks. One that sticks out to me is the fact our so-called group “settlement attorneys” threw in the towel before an assessment of potential damages was even conducted.

    This article keeps me thinking about it. It would be similar to an auto accident negotiation where neither attorney had a clue of the actual fender-bender damages. Was it a parking lot bump or a freeway head-on? In my opinion, this kind of agreement occurs when the attorneys are focused on each other’s interests and only ONE of the drivers. In this illustration, “ONE of the drivers” is NOT even a retired player!

    I can’t help but believe that until retired players gain the right to assess damages intrinsic to our cause of action, there is insufficient rational to know if this or any settlement is good or bad. Therefore, I am committed to “No deal is better than this deal.

    Those who opt-out will live to fight another day and maybe even discover what our images are really worth so we can settle based on what we deserve, instead of what our settlement attorneys have ignored, and will… FOREVER!

    Awesome. And thanks again.

    Rick Eber
    Falcons, Chargers
    1968 – 1972

  2. Spencer Kopf
    August 19th, 2013 at 8:56 pm #

    Spencer Kopf

    Rick,

    Thank you for your kind words and compliments. They are greatly appreciated.

    After reading your moving response to my post, I wish to add the following comments in support of your observations:

    Phaedrus once said: “Things are not always what they seem; the first appearance deceives many. The intelligence of a few perceives what has been carefully hidden.

    I wholeheartedly agree with your insight that the importance of retrieving financial information to aid one in determining the economic value of players’ images to the success of NFL Films is crucial. I believe that as a point of general information – in a great many legal cases – a justified and adequate economic settlement more often occurs just before the selection of the jury or when the case goes to the jury for deliberation to reach a verdict. Normally, a settlement is not reached until a considerable amount of discovery has taken place. The more leverage created through the disclosure of information or through the pressure of an imminent trial setting, the greater possibility that a better settlement will be achieved.

    Wendell Berry wrote: “The past is our definition. We may strive with good reason to escape it or to escape what is made in it. But we will escape it only by ADDING SOMETHING BETTER TO IT.” (emphasis mine).

    The question needs to be asked whether or not adequate information has been made available to – or even withheld from – the pre-1993 retired players so that they can make an intelligent analysis before ascertaining what avenues they will pursue to protect their interests and give up their rights FOREVER.

    If that information has been presented and verified as being true and correct and that ALL of the relevant data and documentation has been disclosed, then so be it. If however, that is not the case, then let the train leave the station and let’s get on with it.

    As Americans, we know that “The strength of a family, like the strength of an army is in its loyalty to each other.” (Mario Puzo)

    What will it take for the pre-1993 retired players of the NFL to rally round the flag and protect the last thing that belongs to them? What is the last thing that belongs to them?

    Is it their images, names and likenesses? No. It is their self respect.

    Do not give that up FOREVER too!

    Spencer Kopf
    NFL Player Advocate

  3. Tony Davis
    August 20th, 2013 at 12:39 am #

    Tony Davis

    Working with and for NFL Retired Players has afforded me the pleasure of meeting some very good people. I have trouble finding anyone who is any better as an advocate for NFL Retired Players than Spencer Kopf. The only thing more impressive than Spencer Kopf’s commitment to NFL Retired Players is his commitment to his friends.

    I call Spencer Kopf friend and brother…

    Thank you as always, Judge.

    Tony Davis
    Cincinnati Bengals & Tampa Bay Buccaneers
    1976 – 1982

  4. Richard Trapp, Esq.
    August 21st, 2013 at 10:12 am #

    Richard Trapp FSU

    I am a pre-93 player who got in only 3 credited years. Thus, I am not vested. I have searched and searched but cannot find any information as to whether this proposed settlement includes ALL former players or just vested players. Does someone know? Also, opting out of the settlement should require hiring of your own attorney if you want to continue pursuing a claim. Are there attorneys out there that will handle these claims on a contingency basis and will agree to take it to trial if necessary? Rick is correct in that how can anyone know how much is a fair settlement without expert opinions and knowledgeable data to determine that? I sure can’t.

    Furthermore, Spencer’s statement that millions of dollars can be used from this settlement to DEFEND anyone who opts out and later sues, is amazing to me. So the NFL can defend these claims for free? While those who opt out are supposedly taking millions away from their brothers who settled?

    Finally, I have not really seen anyone who has spoken in any detail about the chances of success at a trial. This issue should enter into any decision whether to opt out or not.

    I am still undecided but realize I need to make a decision ASAP.

    Richard Trapp
    Buffalo Bills, San Diego Chargers
    1968 – 1969

  5. Dave Pear
    August 21st, 2013 at 1:41 pm #

    Dave Pear

    First of all, let’s thank Spencer for his clarity in making the point that more than everything else – our images, our names, our likeness – it comes down to our self-respect. The NFL and their co-conspirators at the NFLPA have always tried their best to take away our dignity and self-respect with each step of denying us our earned disability and pension benefits. Now that it’s heating up and they realize they have a lot to pay back from everything they’ve already stolen from us, all retired players need to finally stand up and get back everything that belongs to us.

    In answer to your question, Richard, you do qualify to be part of this lawsuit regardless of the NFL and the NFLPA’s stupid arbitrary rules that are intended to disqualify as many of us as possible from our benefits. If you played on a team and were included in the footage of their games, the NFL continues to make money from selling copies of those games whether it’s online, in a video game, on a VHS tape, a DVD or in any of their promotional material. Think about this: If we win this case and those “vesting” rules don’t apply here, what do you think it’s going to do to their pension and disability scam rules? Which is also why the concussion lawsuits are directly related: If you played in the NFL at all and got concussed during play, you qualify to sue them. Period. No three year, no four year or five year vesting periods to qualify just to apply (and then get turned down anyway!). BTW – what makes anyone believe that even if a little of this wonderful “Greater Goodie Fund” is made available to retired players in need, there won’t be more of the same arbitrary rules put in place after the fact just to make sure you don’t qualify for anything? Ya think there’s a reason none of the details have been written or worked out before the Settlement was offered? The NFL MO has not changed in decades.

    When retired players ask me which lawyer I’ve hired, I recommend they call my concussion attorney, Jason Luckasevic at Goldberg Persky White at 1(800) 471-3980. A thousand other players agree with me and have already retained Jason and his partners for their concussion litigation already. We know and trust him as the original attorney who started the concussion lawsuits against the League and Riddell – he’s the NFL’s worst nightmare and doesn’t quit or sell out his clients! Jason has recently been teaming up with attorney Tom Girardi in filing your NFL Films Opt Out paperwork with the court directly on behalf of retired players so you know it’s done properly and won’t get tossed in the garbage. But you have to contact Jason before the deadline at the end of August or it will be too late!

    Dave Pear

  6. Rick Eber
    August 21st, 2013 at 11:34 pm #

    Rick Eber

    Hi Richard,

    It’s been a while, my friend. I hope all is well with you and family. We need to talk as I would love to catch up!

    I have been over-blogging lately as this issue has gotten under my skin but I want to make one more and then move on. Sorry, guys! ;-)

    First, there is a lot of guidance in Dave’s posts and comments.

    Secondly – and in more depth – the concern in your comment, “while those that opt-out are supposedly taking millions away from their brother who settled” is really important and I think revealing about this settlement.

    I know numbers are out there but again to quickly center my response:

    The deal is $50M minus $7M for attorney fees. From that remaining $43M the NFL will withhold $13M in years 6-8 of the 8 year deal to cover NFL legal fees if retired players who opt out file a second lawsuit. If that happens the $43M becomes $30M that can go to charities minus another 35% – 40% for the average operating costs of any charity before services are delivered. Call it $20M that has a chance of reaching players in most likely non-cash services. The only people guaranteed real cash are the board members who replaced the original plaintiffs thanks to our settlement attorneys. OK – I will stop that rant now.

    Impressing the world with $20M just isn’t as sexy as $50M, spin on…

    Key reason your concern is important: The $13M will be in play as a new lawsuit for opt out players has already been filed by Bob Stein and Steve Berman who is leading the Keller vs. NCAA lawsuit. New legal strategies are emerging!

    To your concern, the NFL bundled the $13M legal fees into the settlement to do several things:
    1. Extort players into not opting out.
    2. Inflate impact for the many banal comments Goodell and owners will tell the media, like: “But we already gave $50M to retired players.”
    3. Divide us against each other.
    4. Impress with a psychologically powerful number of $50 MILLION.
    5. Confuse with fog. Unclear, complicated, contingency deals make room for the unaware to make a mistake; a gift to our designers who know the sum of the parts!

    My opinion on point 5 above; purposefully creating a foggy settlement and selling it with more fog knowing many in the class have challenges we all are aware of is almost criminal!

    A Simple question is what difference does it make to the NFL if they bundle or unbundle the $13M it costs them the same? It makes no difference in dollars. It’s just a negative and distributive tactic.

    Bottom line: This settlement and the bundled $13M tactic is designed to extort, inflate, divide, impress, and confuse retired players into buying it or confusing them into no action which is the same as the unfair structure of the game has draws going to the NFL!

    Very importantly, I think the $13M contingency signals the NFL doesn’t think this is a good deal either and they want insurance in case our settlement attorneys can’t sell it as promised!

    Not to mention the intimidation factor; it signals to the next group of law firms that take our case and there will be several good ones …which is another topic entirely. Think about it, NFL attorneys will look across the table and say “We have $13M to spend of retired player money before the NFL spends a dime – and your resources are?”

    This is a bad deal and the NFL knows it!

    Richard, it would be great to catch up.

    Thanks for listening and take care,
    Rick Eber
    Falcons, Chargers
    1968 – 1972

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