Dave Pear's Blog

Over the past couple of weeks, we’ve received a huge volume of e-mails for all sorts of remarkable deals that range from new licensing deals to medical miracles to more golf outings (that’s in addition to all the get-rich-quick schemes and Nigerian scam deals!). Among the most common e-mails of late have been those “recruitment” sites that ask all retired players to sign up for a licensing deal immediately. Lots of talk and absolutely no substance on just exactly what they intend to do once they have your name on that licensing agreement. They don’t tell you exactly how they intend to represent you or what to expect in terms of payment. Just sign up to be included and we’ll take care of the details later. The worst part? They don’t disclose any information whatsoever on what their cut will be. Some of the retired players in our network have inquired about this new deal and we want to describe a real-life scenario and let you make your own minds up.

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Imagine someone coming up to your front door and telling you they have an unbelievable deal for you. Just sign up to join our group and some time later, you just might get a little something from someone. Never mind that you’re actually signing all your rights away to someone you’ve probably never met before in your life (and probably won’t ever again). And ignore the fact that not only do they not tell you what they’re going to give you but they’re not going to tell you what’s in it for them. They might even trot out a retired player or two to convince you they’re legit. It was bad enough that the NFLPA and its legal department created a legal document called a Group Licensing Agreement to convince retired players to sign up for a licensing deal that was actually sent out to thousands of you for years. It was then actually used to defraud the retired players out of millions in royalties. (We’re still wondering why there weren’t Federal charges filed for interstate fraud against the PA and all of the individuals involved? They used the US Postal Service across state lines to perpetuate a long-term fraud. The SEC uses that all the time as a key part of its arsenal in fraud cases).

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Our advice to anyone who gets an offer that sounds too good to be true: It probably IS too good to be true. Everyone always needs to be even more vigilant when it involves e-mail offers with no disclosure. That old warning Caveat Emptor (Buyer Beware) still holds true – especially when it comes to the Internet.

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EDITOR’S NOTE:

We just updated this page on Friday afternoon with two three additional documents that came in after we posted the original Class Counsels’ Proposal. We’ve added them below the first document:

Here’s a copy of the proposal just filed with the court by the attorneys on behalf of the retired players in the Players Inc. GLA lawsuit with two options to address the issue of the missing players. Both options suggest getting checks out to all the players who have already received their first checks so hopefully that will finally happen later this month. On the upside, the list of players that still can’t be located seems to be slowly shrinking, thanks in no small part to the efforts of the attorneys and the trustees over at Garden City Group. Of the 202 missing players, 76 more have been located and added to the active list, leaving just 126 still MIA. Some of the details on the methods available to search for people make for interesting reading (if not a little scary!). We’re trying to post a list of the missing 126 in hopes of passing it through the growing network of retired players who are now online.

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A very quiet news announcement hit the wires this past week that could have major repercussions for active players in upcoming contract negotiations. First, here’s the headline and a clip from the original release on Reuters:

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NFL in discussions about using chip-in-ball technology

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Tue Aug 3, 2010
By Patrick Johnston

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Wow! Is it just us or did January whiz right by and now we’re already heading into February and the Superbowl? Here’s a roundup of some items to close off the month.

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Next Congressional Hearing in Houston Feb. 1st

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The Parrish vs. Players Inc. lawsuit presented an interesting conundrum for the NFLPA under Gene Upshaw; here they were, being sued by their own membership for not paying them royalties due after years of revenues generated from video games and trading cards and other licensed items. Yet they couldn’t allow themselves to notify their retired members that they were part of a class action against… them?!! Keep in mind that this was Upshaw’s NFLPA. It didn’t take long for new Executive Director DeMaurice Smith to quickly void Berthelsen and Kessler’s tired old arguments for another appeal and move the process to the settlement that’s close to being distributed today.  Do we have to remind anyone that if Gene Upshaw was still around, retired players would still be looking at another 3 – 5 years of appeals with no end in sight? (Actually, it appears that Yes – We DO Have to Remind Some People.) And all this happened within the first few months of change in the front office.

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Let’s just say it one more time for the people at the back of the room: You know Gene Upshaw would have spent millions more of YOUR money fighting YOU over YOUR money for however long it took to beat you down.

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And yet some people are still trying to point out what Gene Upshaw’s NFLPA DIDN’T do… He’s gone! Elvis has left the building! Get over it.

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On November 23, 2009, in San Francisco, California, Federal District Court Judge William Alsup rendered a blistering set of three orders approving the settlement agreement in Parrish & Adderley vs. NFLPA Players Inc. However, in rendering the orders, Judge Alsup said of the award of attorneys’ fees, “When combined with the expense reimbursement below, counsel is receiving approximately 25 percent of the value of the settlement. This figure adequately compensates counsel for the work performed in this action. A reasonable fee in light of the ultimate recovery obtained for the class, and is reasonable in light of the missed opportunity for an even higher recovery.”

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Judge Alsup criticized Manatt and McKool, both of which are now touting themselves as “sports attorneys,” for (1) Counsel’s “failure to lay the proper foundation for critical evidence”; and (2) “Counsel’s failure to present a plausible damages theory on plaintiff’s claim for breach of fiduciary duty.”

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In approving the class action, Judge Alsup received fifty-three letters from class members and non-class members. Only two of the letters praised the settlement reached by Manatt and McKool. The judge states that of the remaining letters, most did not make cogent arguments to the fairness of the settlement and “over half of these letters were ‘form letters’ drafted by a non-class member. Moreover, a majority of the objections were signed by non-class members, whose rights are unaffected by this action.”

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It's Official!

Well, it’s finally official!

AAA

Our sources tell us that Judge Alsup did indeed sign off on the final settlement agreement for the Parrish vs. NFLPA/Players Inc. lawsuit. Once the signed order makes its way into the system officially, we anticipate first checks should probably be going out in early December.

AAA

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Dr. NO!

Lead story for Friday morning: NFLPA Executive Director DeMaruice Smith calls for ouster of Dr. No. – Ira Casson. New York Times‘ Alan Schwarz writes:

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“Ouster of N.F.L.’s Voice on Concussions Sought

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We keep getting inquiries and comments on an almost daily basis asking about when the retired players will finally be receiving their Players Inc. settlement money. Since the settlement was first announced with great fanfare in early June at a well-covered press conference that included NFLPA Executive Director DeMaurice Smith, plaintiffs’ attorney Ron Katz and plaintiff Herb Adderley, few details have been available on how, what, when, where and why. We need a Jerry Maguire to remind the NFLPA/Players Inc. to Show Us the Money!

Here are some comments from a recent e-mail from Bernie Parrish, the original plaintiff in the lawsuit:

“I have yet to find any retired player in the class – or even outside the 2,062 member class – who was consulted about the settlement before Katz accepted the strange $26.25 million deal that Kessler says he “crafted” and that Katz ordered Adderley to accept, telling Adderley it came from Latham & Watkins, a special law firm who suddenly arrived on the scene to hand Kessler’s “crafted” settlement deal to Katz…

“Adderley told the press conference he had not discussed the settlement with any other retired players because he just found out about it on Wednesday [Editor's Comment: The day before the press conference] and then met D Smith the day of the settlement press conference. And there are lots more lawyerly shenanigans where this comes from. I’ll be emailing them to you shortly.”

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Our last post talked about Richard Berthelsen’s courtroom denial (read it HERE) with crafting the NFLPA’s Group Licensing Agreements (GLAs). Here’s another little piece of history for all of you that Dave just dug up from his files. Dave was still living in Bradenton, Florida back in 1993 when he forgot to mail in the renewal for his membership with the NFLPA. Back then, it was $50 a year and they sure made a heavy-handed pitch to make sure everyone renewed. And in 1993, guess who was General Counsel for the NFLPA under Gene Upshaw? Richard Berthelsen (unless he lied on his biographical material on the Sports Lawyers Association website). Wonder who wrote those nifty and lucrative GLAs back then?

And we quote: “We have a group licensing program which could result in licensing fees for our retired players. More that 1500 members have given us their group licensing rights to date.” Wowee! Everyone sure made a lot of money from that deal, didn’t they?

Check out this old letter and read it for yourself (click on the letter to enlarge it for easier reading).
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There’s going to be a lot of backpedaling as DeMaurice Smith begins to take control as the new Executive Director of the NFLPA. You’ll remember that when Gene Upshaw departed just a month before the NFLPA/Players Inc. trial was to start in September of 2008 so the judge postponed that start date until October 2008. In that time, Richard Berthelsen was appointed as acting Executive Director while their Board frantically started their search for a new Director.

With as much information available on virtually anyone and everything online these days, it’s getting harder to lie or hide things any more, big or small. A few days ago, it was pointed out to us that when Berthelsen was testifying on the stand during the Players Inc. trial, he was asked directly about who had written the Group Licensing Agreements that were at the heart of the entire case. On Friday, Oct. 31, 2008, under oath, in front the judge, jurors and onlookers in the packed courtroom, when asked about the Group Licensing Agreements, Berthelsen openly declared that he didn’t know who had drafted them. Bernie Parrish – one of the original plaintiffs in that successful NFLPA/Players Inc. trial – confirmed that he had notified plaintiff attorneys, Manatt Phelps, about Berthelsen’s witness stand fib. (We’re looking for a copy of the transcript to confirm this but have already heard from several other people who were in the courtroom when Berthelsen made his declaration under oath.) What do they call lying under oath in Court?

What we found interesting – and many of you probably also didn’t know this either – is that Berthelsen is a member and Director of the Sports Lawyers Association (SLA). And on his official background bio, he claims bragging rights to… Yep, you guessed it – Negotiating and drafting player group licensing agreements and special events contracts.

Here’s the clip straight from the SLA’s own website (you can go to their site as well by clicking HERE but don’t be too surprised if they change the listing soon!) (Click on image to enlarge.) continue reading »

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More than a few of us took offense to departed Gene Upshaw’s dog food comment used in reference to the NFLPA’s marketing efforts for retired players. Even Judge Alsup managed to include them in his final ruling earlier this month (click HERE to read about it).

I ran across this very insightful piece by Mike Florio over at ProFootballTalk that discusses some of the incorrect opinions that are already starting to show up in the mainstream media. Here’s a clip for PFT:

“The problem is that the story creates the erroneous impression that the case is over and that the union has no chance of reversing any portion of the verdict. (As we’ve noted, the award of so-called “compensatory damages” might be in jeopardy because the retired players introduced no evidence of specific lost opportunities arising from the union’s failure to properly market the rights.)

Frankly, it’s hard not to think that someone intentionally fed Bloomberg incomplete or embellished info, given that the current NFLPA leadership is scheduled to conduct a press conference in Tampa later today, at which time there might be a few questions asked about the verdict.”

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This just in from Associated Press. And that hissing sound you hear is more air going out of the NFLPA. The entire 7-page order is below the AP clip.

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Last month In early December, the good folks from HBO Sports spent a day with Dave talking about a wide range of topics from the GLA trial verdict to how retired players were being treated as a whole. The interview was conducted by award-winning veteran Frank Deford as a small part of a one-hour special. Look for interviews with Dave, Herb Adderley, Joe Delamielleure, Bruce Laird and legal perspective from both law firms involved in the long overdue trial that was won last year. The show’s scheduled to air on Tuesday, Jan. 20th (Obama’s Inauguration BTW) at 10:00 p.m. EST. (Mark your calendars and set your TiVo.)

And while we’re on the subject of the trial, this Thursay (Jan. 8th) Judge William Alsup is expected to release some of his initial rulings regarding the appeals and arguments filed after the trial ended in November. We can only hope that the appeals won’t drag on ad nauseam as seems to be the standard operating procedure for the NFLPA. Perhaps some of the people with enough clout could start demanding to see the legal fees wasted so far just so everyone can get some perspective on how much more Kessler and Berthelsen intend to waste of the NFLPA’s money (yes, it’s YOUR money!). I have to confess to some respect for the British court system’s approach to litigation: Loser pays! Perhaps if Kessler and his rich law firm (and Berthelsen as well) had their own money in the game, they might think twice about wasting any more of everyone else’s money. (P.S. – The judge’s final opinion likely won’t be available for another week or so after the January 8th hearing.)

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With everything Gene Upshaw and the NFLPA touched over the past 25 years, you can always expect it to be like peeling an onion: There’s one new surprise after another as you peel away the layers and it’ll bring tears to your eyes with each layer.

When Judge Allsup’s decision was announced in November, most of the retired players were elated to hear about a hard-fought victory that was years in the making. (Click HERE to read that earlier post.) But it didn’t take long for more and more retired players to realize that they weren’t on the final GLA (Group Licensing Assignment) list that was released at the end of the trial. At first, we thought that perhaps a few of the players had simply not signed and/or returned their GLA’s. And the more players who wrote in, the more we realized that many of them had never even received GLA’s at all over the years.

So Dave couldn’t stop wondering about the difference between the number of retired players that the NFLPA claimed to have signed to GLA’s and the actual number that they provided to the courts. Dave, of course, has been a dues-paying, card-carrying member of the NFLPA all these years. (Even as Gene Upshaw announced that they didn’t represent the retired players.) And Dave seldom throws anything away. He managed to dig up the last 3 copies of the NFLPA Retired Members Directory, spanning from 2002 – 2009.

Here are the pages from the 2002 – 2004, 2004 – 2006 and 2007 – 2009 Directories that actually states the number of GLA’s the NFLPA claimed to have on file (click on each image to enlarge it for easier reading):

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