We now have a publicly available copy of the Settlement Agreement details and the subsequent Collective Bargaining Agreement (CBA) made when the CBA was ratified. The individual active players (Brady et al) agreed to drop their suits that were filed against the NFL when the Union decertified during the lockout. We’re posting this for weekend reading and look forward to your comments and observations. Note that it was Jeffrey Kessler who filed this without any seal. . We’ve uploaded the entire 201-page document to Scribd for easy viewing and to make it downloadable for printing. You can also click the Enlarge icon in the center of the menu at the bottom of the viewing screen to go Full Screen for easier reading (and just hit the ESC key to close): . Brady Settlement for 2011 NFL/NFLPA Collective Bargaining Agreement .
You would think that the NFLPA would have learned by now that any time they let attorney Jeffrey Kessler into a lawsuit, they may as well count on things taking longer and costing more. In case there are still some of you out there who aren’t familiar with Kessler, he represented the NFLPA in the Player’s Inc. lawsuit when retired players sued the union and their “Licensing Arm” for past video game royalties that the Union had intentionally defrauded from its players for years. Kessler and his firm were paid handsomely for losing the case that awarded $28 million+ in royalties and damages awarded to the players. And his brilliant answer to losing the case before then-newly-appointed Executive Director DeMaurice Smith (and white collar crime attorney) decided to settle the case? Appeal. .
So then Kessler gets into the middle of the NBA lockout to “represent” the players and that drags into basketball season. Here’s a recent article from ProFootball Talk that pretty much sums up what everyone thinks of Kessler: Click HERE. .
The question we have to ask is: What have they got to hide? Or more to the point: What does Kessler personally have to hide? In any problem, you’re either part of the solution or you’re part of the problem. We think Kessler and his group ARE the problem. .
So last week on Dec. 2nd after much posturing from both sides, Judge Susan Nelson allowed a Motion to seal all further filings and proceedings in the current class action suits filed against the NFLPA, Tom Brady, Mike Vrabel and DeMaurice Smith. . We’ve uploaded Judge Nelson’s order along with the pleadings from both sides to Scribd for easy viewing and to make it downloadable for printing.) Shawn Stuckey’s detailed arguments and the attached Exhibits make for some good reading. Great job, Shawn!) You can also click the Enlarge icon in the center of the menu at the bottom of the viewing screen to go Full Screen for easier reading (and just hit the ESC key to close): .continue reading »
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Over the past four and a half decades I have witnessed many, many, many, many acts of injustice, chicanery and dishonesty. Some of these acts occurred on the fields and arenas in sport (as a player, teammate and coach), some in the halls of justice, some in the media and press and others in the avenues of everyday life. But never in all my years of experience and knowledge as an athlete, coach, prosecutor, judge, attorney, teacher, professor, journalist, author and rights advocate, have I ever witnessed such open acts of deliberate manipulations of the truth, excessive greed, conscious indifference, breach of trust, conflicts of interest and cowardice as I have in observing the conduct of Gene Upshaw and DeMaurice Smith and their cronies. .
Mr. Smith’s conduct - which we will call at this time, “legal crimes” – are of a great intensity. That is because he appears to have consciously misrepresented his intentions and the facts to the public, the press and the media and deliberately pulled on the heart strings of those Pre-1993 retired NFL players by promising effort and commitment at a level he never intended to perform. .
Certainly the results of the 2011 version of the Collective Bargaining Agreement, as it pertains to the Pre-1993 retired NFL players, was not within light years of the satisfactory conclusion DeMaurice Smith led the retirees, press, media and public to believe. In fact, it was a smoke screen of a disingenuous effort to placate society and discard the heroes of the game like an old shoe who no longer had a sole/soul to stand on. Since that dismal day, very few press or media or others have sought to inquire with any in-depth scrutiny, the true determination of the so-called efforts that DeMaurice Smith made for Pre-1993 retired NFL players (while allegedly negotiating for benefits on their behalf). Some reporters, oblivious to the reality of the true finding, actually praised the pathetic result. .
Without a doubt, Gene Upshaw was a disgrace as an advocate for pre-1993 retired NFL players. Anyone with half a brain and a conscience knows that. It is an inescapable truth. Jimmy Hoffa could have taken lessons from Upshaw (and his advisors) on how to legally divert millions of dollars into their own greedy hands to the detriment of those who put him in the trusted position as Executive Director. If you will recall, Dick Berthelsen (former interim Executive Director NFLPA and NFLPA General Counsel) said that “whatever Gene is getting paid, it’s not enough.” How much did you get paid to say that, Dick? Remember – at his death, Upshaw left his heirs an estate filled with millions of dollars in real property, luxury cars, extremely valuable personal property and, to our knowledge (at this time), legally diverted funds (from the union marketing company and the NFLPA) easily exceeding $15 million in deferred compensation (according to Washington Post reporter, Tom Jackman, the closer calculation is approximately $19.7 million!). Apparently, the person who was sitting as the Acting Executive Director at that time was… you guessed it: the infamous Dick Berthelsen. .
Although at this juncture, we could assume DeMaurice Smith has yet to legally divert the enormous wealth Upshaw accumulated so slickly, his conduct is – in the full scope of the events at hand – even more despicable and deplorable than Upshaw. However, let’s not forget: DeMaurice Smith has already made millions since starting his position as Executive Director of the NFLPA. Upshaw, despite his many times in promising to help them, made it clear to the pre-1993 retired players who he really worked for and who had the power to fire him (and it wasn’t retired players.). Many retired players believed that Gene Upshaw was an arrogant and untrustworthy individual. Why then is DeMaurice Smith’s conduct even more despicable and more deplorable than Upshaw (however, others may still say that is a debatable question)? .
Here’s why: DeMaurice Smith is a former United States Attorney. .
However, in a broader reality, DeMaurice Smith portrayed himself as much more than just an attorney. DeMaurice Smith emphasized that he was a former Assistant United States Attorney having served under the present Attorney General of the United States. Therefore, it can be assumed, Smith became the Executive Director due to his employment under Attorney General Holder and the sense of integrity and expected “shroud of trust” that position exudes. .
Therefore, let us unequivocally state, as it pertains to pre-1993 retired NFL players, DeMaurice Smith took the position as the Executive Director of the NFLPA under a cloak of hope and trust which we believe he has openly and secretively betrayed. .
That “shroud of trust” has been torn! .
There is nothing more despicable and deplorable than to betray a trust to those individuals whom you, Mr. Smith, are alleging you were empowered to protect. That betrayal becomes metastasized when it is inflicted upon many who are old and virtually defenseless. Do you get that, Mr. Smith? .
DeMaurice Smith’s alleged attempts at negotiating benefits on the behalf of pre-1993 retired NFL Players was more than a sad joke. It appears to have been a calculated deception to avoid turmoil during a time when an appearance of a unified front was a vital element of a plan to achieve the goals he was truly seeking. It appears that Smith’s agenda was to resolve the major issues regarding the active NFL players while simultaneously using the pre-1993 retired players’ concerns of inadequate pensions, inadequate health insurance and virtually unachievable disability benefits as sacrificial bargaining chips. America – in the legal profession, that is a crystal clear example of having the appearance of a conflict of interest. Ask Mr. Smith. .
If DeMaurice Smith had done as he preached – “ONE TEAM” – then all that has happened since he took office would be diametrically different. Presumably, Berthelsen would have been fired the first day Smith took office. Tom Condon’s (Upshaw’s attorney/agent) influence on all matters relating to the marketing company and the union would have been terminated. Furthermore, a new Disability Board would be established (minus the trained seals appointed by the union leadership) with qualified members (that had no ties to the members, their agents, the union leadership and/or the teams) being a prerequisite for service. .
Let us re-examine and re-visit the Tammany Hall-like mentality of Mr. Smith for new readers and the peanut gallery and refresh the memories of the press and media as well as current and retired NFL players: .
As previously reported: “Mr. Smith has swept under the rug a $28 million dollar judgment against his predecessor’s leadership for breaches of conduct and fiduciary duty, $21 million of which was punitive. Yet, Smith approved the settlement agreement on damages and has rewarded those duty-breachers instead of giving them pink slips.” .
A huge problem is the virtual sole-proprietorship manner that the NFLPA marketing company is operated. If you will further recall, the former Assistant Executive Director of the NFLPA, Doug Allen (Upshaw’s sidekick), who also assisted in directing the operation of the NFLPA marketing company, had his gross pay increased from $446,281 in 2006 to $1.9 million in 2007. Allen’s wife saw her pay double to $633,534. Allen’s boss Upshaw had his income increased to $6.7 million. Over the years, how much unjustified self-enriched compensation (due to legal manipulation) has been paid to union leadership and their cronies to the detriment of the union membership (especially those with inadequate pensions and/or physical disabilities)? .
In 1982, that small band of brothers that compelled the ending of the labor strike did so because they had a unified purpose with an impenetrable sense of integrity and resolve. At that time, the union leadership didn’t even have a semblance of a believable strategy or an appearance of being reliable to those they were representing. In fact, they appeared arrogant, unfocused, incompetent and self-serving. Their true place in the end-game negotiations of that year of embattlement became a HUGE inside joke. They became a bigger joke 5 years later during and after the demise of the 1987 strike. .
As in the Dallas Morning News sports editorial dated July 11, 1982 titled “Garvey Garbling Player Issues” the writer specifically and most accurately fore-warned the following: “The union is supposed to protect the players from management; who will protect the players from the union?” .
Now the joke is on all of those individuals who allowed those decertified union leaders of the failed 1987 strike to re-establish themselves in the early 90’s. Since that time, they have finagled their way in to a flow of cash and perks that have virtually remained unbalanced and unchecked for nearly twenty years. .
Presently, a lawsuit is pending in the federal court of Minnesota seeking that unified purpose and a unified goal that existed for that cadre of players in the pivotal altercation of 1982. The same is possible today. However, one must learn from past successes and past blunders. .
In 1944, Allied Supreme Commander Dwight “Ike” Eisenhower had to forge an alliance among many factions and many different cultures and temperaments to achieve victory against the Nazis. It wasn’t easy! Too many people were concerned more with who got credit if they won than for achieving a joint victory. It took a strong leader to voice a firm unified front with little or no compromise. .
Today’s interested parties have an opportunity to pull together behind the efforts of their attorneys and fellow brethren to stop the flow of union monies away from their constituents while seeking and achieving adequate pensions and proper health and disability benefits for ALL. .
Unfortunately, as in 1944, Pre-1993 retired players are immersed in a similar situation. There are too many people concerned on who is going to get us to the goal line rather than getting OVER the goal line. Now is the time to truly unite. Set aside your ego and cease the childish statements of whose lawyers have done this and how many players are backing our group which is more than your group. Enough already!!! .
As of the date of this editorial, I have not met any of the attorneys who are working on behalf of the retired players. However, I have met John V. Hogan several times. He is a brilliant attorney with a sense of integrity and compassion that has no equal. So I would ask him what he believes should be the most effective avenue of pursuit. At this time, I believe that if Michael Hausfeld has matters in place to achieve an aggressive stance of attack, then it is time for the formation of ONE TEAM. But that attack MUST achieve distancing pre-1993 retired players from any control or influence of the NFLPA. Remember: The verdict from the Adderley Lawsuit clearly established that the NFLPA leadership cannot be trusted. .
Additionally, I also believe that this matter is a battle that requires a passionate communicator in the Court of Public Opinion and NOT just in the Court of Law. Based on all of the above and more, that is an issue that must be addressed NOW! .
It is the belief of many that the reason DeMaurice Smith has been dodging questions and laying low, since the apparent resolution of the CBA, is because he knows what he has done, or shall I say, has NOT DONE and he knows that he does not have the guile or knowledge to bear close scrutiny in a public forum. Check him out, he yells when he wishes to show concern for those he has no concern for and leaves, without directly answering a question, when he has no evidence to support his position. At the Santa Clara Law Symposium, when it came to the latter, that is exactly what he did. .
When questioned by Mike Francesa (of The FAN in NYC), Smith made statements that were clearly misleading and flat out inaccurate. But Mike, at no fault of his own, trusted that Smith wouldn’t possibly state something on the air that was blatantly misleading. .
Smith knows that he could not get away with that garbage with someone who could regurgitate the facts and law every time he uttered unsubstantiated remarks. If Smith were to appear in a debate on the issues (where he could not walk away without people knowing he was hiding something) with all the misstatements he has made, it would be like shooting fish in a barrel with a twenty-gauge shotgun with unlimited shells. .
It is time to get behind each other as “ONE TEAM” and leave no soldier (player) behind, no matter what. Show DeMaurice Smith what the term “ONE TEAM” was meant to mean. Only a man who has fought the good fight while standing shoulder-to-shoulder with them could sense that camaraderie. .
I did. .
Only a man with a clear conscience would know that feeling. I guess that leaves DeMaurice Smith out. .
I rest my case. .
Spencer Kopf
Joe DeLamielleure-HOF
Elvin Bethea-HOF
Leroy Kelly-HOF
Lem Barney-HOF
Reggie McKenzie
Billy Joe DuPree
Fred Dean
Art Still
Isaac Curtis
Jim Breech
Jeff Yeates
Chuck Ramsey
Dermontti Dawson
Dave Pear
John V. Hogan . Spencer Kopfhas been a licensed attorney in the state of Texas for 34 years and offers expertise in the areas of corporate law, criminal law, sports and entertainment law, civil litigation, and contract negotiations. . 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 unanimously nominated by the Supreme Court of Texas to serve on the Judicial Qualifications Review Commission. .
He has represented more than 100 professional athletes and at one time, represented one-third of the Dallas Cowboys roster as their attorney. He has also served as a guest legal sports analyst for the Dallas Morning News. . .
Judge Susan Nelson’s court in Minneapolis MN just ordered parties to the earlier enjoined lawsuits to a case management conference on Aug. 10, 2011. What’s interesting to note is that Judge Nelson anticipates ordering all parties to bring participants who have settlement authority to a mediation hearing before Judge Boylan in Federal Court on Aug. 15, 2011. .
Since all the active players’ issues are presumably now settled, it would seem that the only remaining issues to be discussed, negotiated and settled are retired players’ claims. . We’ve uploaded a copy of both letters to Scribd for easy viewing and to also make them downloadable. You can also click the Enlarge icon in the center of the menu at the bottom of the viewing screen to enlarge it for easier navigation (just hit the ESC key to close): . Order Setting Case Management Conference and Mediation .
Over the past several days I have been asked by many, many retired NFL players to express to the CURRENT Players, the RETIRED Players, the PRESS, the MEDIA, the FANS and the GOVERNMENT, on why the time will eventually come to rid the great game of professional football, the arguably legally corrupt entity of the NFLPA and its affiliated entities and leadership team. However, NOW IS THE TIME that they should be removed from having any interest or influence over any of the monies and marketing opportunities of retired NFL Players prior to 1993. At the very, very least! . Based upon the most recent shenanigans employed by the Union leadership and its proven disingenuous and unreliable conduct, it is now evident and crystal clear that their legally manipulative and legally corruptible influence over a trusting group of oblivious and naïve constituents MUST COME TO AN ABRUPT AND DECISIVE END! . continue reading »
EDITOR’S NOTE:9:30 PM PST – Judy Battista’s story just posted on the New York Times – Click HERE to read this breaking story. .
On Friday afternoon, a small group of us were informed about the details a conference call that NFL Commissioner Roger Goodell had with the attorneys and a small team of retired players from the Eller class action lawsuit. All of us were shocked to hear the news that there was an additional $500 million offered to the retirees that had gone undisclosed to them. From what we understand so far, the money would supposedly be earmarked for “charities, medical research, etc.” and then “managed” under the auspices of the PA. We’ll continue confirm and report more details as the story breaks over the next few days. . In the meantime, we want to talk a little about how the Internet and social networks have changed the world of communications for better and for worse. We’ve watched an entire revolution take place in Egypt with the fall of the Mubarek regime that started with social network Twitter. And that revolution continues to spread across the Middle East. But social networks like Twitter can also be used to spread gossip and misinformation. And that also seems to happen more often than people may imagine. Fortunately, there’s also a good side to that as well. Leaving a trail of crumbs behind you is not exactly a smart strategy. Take the phony story that started to circulate last week not long after several groups started to promote the Retired Football Players Declaration of Independence (and if you haven’t signed that yet, shame on you!Click HERE to add you signature to the growing list!). . continue reading »
Over the long weekend, attorneys for the Retired Players Class Action lawsuit against the NFL, its owners, the former NFLPA and active players filed another amended 64-page complaint with the US District Court in Minnesota. . We’ve uploaded a copy of the complaint to Scribd for easy viewing and to make it downloadable. You can also click the Fullscreen button in the menu at the bottom of the viewing screen to enlarge it for easier navigation (just hit the ESC key to close): . Filed Second Amended Retired Football Players Complaint .
The amended complaint has already had some coverage in the national media: .
Retired players’ complaint takes aim at Drew Brees
OK – many of you readers have had some time to look over that LM-2 we posted on Monday (click HERE to go to that post). We’ve already been receiving some e-mails on different tidbits that some of our readers have discovered:
It seems that the NFLPA was under the rule of lawyers for decades when departed Executive Director Gene Upshaw ran the place. We’ve covered many of the lawyers inside over the past couple of years. And current Executive Director DeMaurice Smith recently alluded to the conflict of interest posed by the Groom Law Group with regard to the players’ pension plans; they wrote the plan and they represented BOTH the NFLPA AND the NFL when it came to defending the plan. (Click HERE to see the Super Bowl announcement.)
Oral arguments have just closed in the American Needle vs. NFL case. Lawyers from both sides spoke to reporters and answered questions about their presentation and the case in a news conference on the courthouse steps outside the Supreme Court in Washington DC.
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. And we just uploaded the transcript of the oral arguments to DocStoc for those of you who want to read the details as presented by the two sides.(Click on the FULL SCREEN button to enlarge it for easier navigation – hit the ESC key to close. You can also click the DOWNLOAD button to save a PDF copy for printing and reading. There’s also a Menu button in the upper left corner with even more options.)
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Over the past 24 hours, we’ve certainly had a lot of discussions around the old adage “Not seeing the forest for the trees.” In the old way of controlling their spin on all stories about football, the NFL managed to keep all of the television networks and most of the major print media on very short leashes because of their broadcast rights and access to players and managers for interviews. And then the Internet came along. Despite claims of a few who proudly proclaim they invented the Internet and Facebook, this new medium has not only moved the retired football players battle to a new and level playing field; it’s in a different league altogether. Just as the past two weeks have completely caught Tiger Woods and his team of old-school PR flacks like deer in the headlights, the NFLPA and the NFL and their old media machines have been hard-pressed to catch up with a new medium that they can no longer control. The Internet doesn’t belong to anyone and it belongs to everyone.
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.
This is the 4-page final settlement agreement that was signed by Judge William Alsup in San Francisco on Nov. 23, 2009.
(The crew over at DocStoc have added some great new features: Click on the FULL SCREEN button to enlarge it for easier navigation – hit the ESC key to close. You can also click the DOWNLOAD button to save a PDF copy for printing and reading. There’s also a Menu button in the upper left corner with even more options.) .
… And here’s the 12-page Summary from Judge Alsup covering Attorneys’ Fees, costs and compensation for the class representative. Everything Bernie Parrish has pointed out is covered in this document …and more. (Ouch!)
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.”
It just finally really sank in that Gene Upshaw’s widow was apparently paid a $14 million lump sum directly out of the NFLPA’s bank account when he passed on to a new life (!). As a businessman, I started wondering why that money was paid directly out of the NFLPA’s coffers and not by an insurance policy that they should have had in place for a key employee like most normal businesses usually have? With any of the businesses I’ve started over the years, my investors typically sleep better knowing that there’s an insurance policy on my life to allow the Company to replace me as CEO in case something happens to me. And I also typically negotiate a separate policy that will provide for my family as part of the package. This happens in businesses across the country every day, regardless of whether they’re privately held or public companies. This is common business practice and I doubt if even Jack Welch, former CEO of GE, would argue with that. continue reading »
You would think that the NFLPA would have learned by now that any time they let attorney Jeffrey Kessler 
Judge Susan Nelson’s court in Minneapolis MN just ordered parties to the earlier enjoined lawsuits to a case management conference on Aug. 10, 2011. What’s interesting to note is that Judge Nelson anticipates ordering all parties to bring participants who have settlement authority to a mediation hearing before Judge Boylan in Federal Court on Aug. 15, 2011.
Over the past several days I have been asked by many, many retired NFL players to express to the CURRENT Players, the RETIRED Players, the PRESS, the MEDIA, the FANS and the GOVERNMENT, on why the time will eventually come to rid the great game of professional football, the arguably legally corrupt entity of the NFLPA and its affiliated entities and leadership team. However, NOW IS THE TIME that they should be removed from having any interest or influence over any of the monies and marketing opportunities of retired NFL Players prior to 1993. At the very, very least!
OK – many of you readers have had some time to look over that LM-2 we posted on Monday 
Over the past 24 hours, we’ve certainly had a lot of discussions around the old adage “Not seeing the forest for the trees.” In the old way of controlling their spin on all stories about football, the NFL managed to keep all of the television networks and most of the major print media on very short leashes because of their broadcast rights and access to players and managers for interviews. And then the Internet came along. Despite claims of a few who proudly proclaim they invented the Internet and Facebook, this new medium has not only moved the retired football players battle to a new and level playing field; it’s in a different league altogether. Just as the past two weeks have completely caught Tiger Woods and his team of old-school PR flacks like deer in the headlights, the NFLPA and the NFL and their old media machines have been hard-pressed to catch up with a new medium that they can no longer control. The Internet doesn’t belong to anyone and it belongs to everyone.
