Dave Pear's Blog

Yesterday, a story made its way across the sports networks about an 11-page letter from attorney and player/agent advisor David Cornwell criticizing NFLPA Executive Director’s performance in general and his handling of the 2011 Collective Bargaining Agreement (CBA) in particular. Interestingly, one of the first posts about this memo actually came from the NFL.
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Some of you may recall that when Gene Upshaw passed away suddenly just before the beginning of the Players Inc. trial and the NFLPA subsequently went through a long search process for a new Executive Director. Among some of the leading candidates were retired player Troy Vincent and attorney David Cornwell. DeMaurice Smith emerged as the winner much to the surprise of many people. Cornwell takes issue with Smith’s version of his successes in running the PA and the CBA negotiations, as well as how he’s kow-towed to the League on player discipline issues. Most retired players could add at least another 11 pages to your letter, Mr. Cornwell!
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Cornwell takes issue with NFLPA leader Smith in 11-page letter

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On January 13, 2012, I called the NFLPA office to inquire about the Legacy benefit. I was instructed to call Cynthia Timpson at the Bert Bell/Pete Rozelle office to discuss the matter. My late husband was a pre-93 player, and from my understanding the 2012 CBA agreement states, “All players who vested under the Bert Bell/Pete Rozell NFL Retirement Plan prior to 1993 would get an increase.” I anticipated her return call and was unprepared for her disrespectful remarks. I have never been so disappointed in the treatment I received that day; however, it should not have surprised me since that seemed to be the status quo whenever I have called seeking information from any of the NFL-related offices.
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Larry Kaminski has been keeping us updated on his battle against the Denver Broncos filed in California under their Workers Compensation laws. The Broncos current ownership is trying to have their case heard and dismissed in Federal Court based on their claim that when they bought the team, they only acquired the assets and not the liabilities (yes, just when you don’t think it can get any dumber). Read the earlier post – click HERE.
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Here’s a short update from Larry for those of you also going through Workers Compensation cases or considering that as an option:
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Fellow Independent Retired Players:
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EDITOR’S NOTE: Dave has been talking with Bette Schwager over the past few weeks about her treatment (or mistreatment) at the hands of the NFLPA and the Players Assistance Trust (PAT). We asked her to write the story in her own words so that our readers can understand just a little of the senseless treatment she and her family have been put through by the NFLPA and their so-called assistance programs this past year. Bette’s husband, Bruce, had played football at the Merchant Marine Academy before being drafted by the Chicago Cardinals in 1955. The Cardinals refused to take him off their reserve list even as he went in to service with the Navy from 1956 – 1958. So Bruce became another one of the pre-’93 players (pre-’72!) who was actually on the roster and vested with enough years but never granted vesting. You can read the full story from Alan Schwarz in his June 2011 New York Times article – click HERE. We’ve also posted a copy of the 2-page Release Letter that the NFLPA tried to get Bette to sign after Bruce passed away before he was to be evicted from his dementia care facility because the NFLPA stopped paying his bill. After you read Bette’s story and the Release Letter, you’ll understand why we’ve been cautioning everyone to be extremely careful of signing anything from these people without close scrutiny and advice. continue reading »

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.
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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.
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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.
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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.
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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):
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Here we are coming up to the end of November and as you can see from a lot of the comments on earlier posts, everyone would like to know where those big, fat pension increases have gone. This morning, I received another local NFLPA communiqué from Sam McCullum and once again, it’s a lot of nothing in a long string of paragraphs. The only good advice he passes along is, “Don’t go spending it until you get it!”
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A WORD OF CAUTION: This recent e-mail talks about signing a “Declaration” before you can get your money. All of our lawyers have cautioned us NOT to sign ANY declarations or agreements until it’s been carefully reviewed. (Remember those nasty GLA agreements that they had us sign so we could get paid “our share of the video game licensing revenues?” Yeah, right!) We expect to be posting a legal advisory on this declaration as soon as it’s available - you don’t want to be signing away any of your rights to sue the NFL OR the NFLPA through another typical weasel-worded ‘Declaration.’ If anyone gets an advance copy, please feel free to share it with us.
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Over the past couple of weeks, absolutely nothing of any serious significance or substance out of the NFLPA regarding retired players pensions especially that new Legacy Fund, other than a lot of the same chest-thumping and empty rhetoric that everyone has been hearing since the lockout ended late this summer. It would certainly seem like the lawyers have taken over once again and put out that Say Nothing Memo.
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There was a meeting of the Seattle Chapter (probably much like other chapter meetings across the country) where the usual 8 members – out of approximately 48 NFLPA members listed in the Seattle area – showed up and voted on a few things that we’re sure will make a huge difference to all retirees: The meeting introduced some Business Opportunities (Hair Products!), the Touchdowns for Homes Programs, as well as some discussion on the School of Legends program. We also finally have some backhanded acknowledgment from the NFLPA HQ about loss of hearing from football (a shiny new discount hearing aid program!).
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NFLPA 2012 Florida Convention

The NFLPA just announced their 2012 convention to be held once again at the Marco Island Marriott in Florida next March. Retired players are also invited to actually mingle with active players for $250 a night! Lots of golf, fine dining and everything else… except talking about the real issues that retired players actually need to have addressed.
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So with all the lawyers that work over at the NFLPA, it seems that the only thing that gets their attention is another good lawsuit. Today, the attorneys in the earlier Eller suit – Hausfeld LLP, Zelle Hofmann, Arthur N. Bailey & Associates, Coburn & Greenbaum – filed another class action suit on behalf of retired players against the NFLPA, DeMaurice Smith, Tom Brady and Mike Vrabel. The new suit includes a new list of players – Dave is included as one of the named plaintiffs – along with an additional list of key issues that the PA will need to address.
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We’ve uploaded a copy of the new 44-page Lawsuit 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):
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Gault McElhenney Brown Et Al v NFLPA
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In our last post - click HERE if you’d like to read it again – we posted an exchange of e-mails from Bob Kuechenberg with questions on the current CBA, the Legacy Fund and benefits in general for retired players (particularly the pre-93ers). For weeks, those within the NFLPA have been stonewalling retirees with vague answers as well as pointing the finger at others to lay blame for lack of any clarity on what and how retired players will be receiving “new” benefits. One thing the PA has shown consistency with has always been, “We know what’s best for retired players and you’ll get what’s left AFTER we’ve already carved up the pie for the active players. And by the way – no one can talk about this stuff at local chapter meetings because it’s too negative and divisive!”
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What’s worse: The NFLPA was invited to the table for a real opportunity to sit down with the Commissioner and representatives of the retired players in September because “they were being sued by the retired players” so they couldn’t show up. Never mind that Nolan Harrison III and Jim McFarland were invited – AND attended – the first meeting and subsequent conference calls with the largest unified collective of retired players representatives to have ever assembled for one goal: To take charge of their own pension and disability benefits. And never mind that the non-Union (decertified) individuals and the League were also subsequently sued by retired players at that time. (EDITOR’S NOTE: To Jim McFarland’s credit, he’s been the only man on the inside who’s been speaking up on the real issues relevant to retired players but of course, no one seems to be listening to him and he has absolutely NO vote.)
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EDITOR’S NOTE: Another exchange that Bob Kuechenberg recently had with your NFLPA representatives who are still asking what’s important to retired players. (?!!) The only three things that matter to retired football players have always been – and will always continue to be – real access to THEIR EARNED:
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• Disability Benefits
• Pension Benefits
• Medical after football
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Some of you may also recall several chapter presidents resigned in recent years in protest after being told what they could and could not talk about at chapter meetings
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It seems that the PA is still managing to put out as much as they can without saying anything while still blaming everyone else for holding the process up. Oh wait – they’re in Washington DC! That’s what EVERYONE does up there! We forgot!
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So over the past week, we’ve received a few more ‘communiques’ from our local NFLPA chapter via Sam McCullum and it always seems that the guy in the room with no vote or real voice on any matters has the clearest take on everything. Jim McFarland – retired players’ representative – has provided some of the clearest analysis on what’s proposed in the final CBA for the Legacy Fund and how it will affect pre-93 players. Here are the e-mails and comments starting with the latest first. We also included a copy of that meeting proposal document referenced in the most recent e-mail and have loaded it up to Scribd for easier reading and printing.
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One more thing: And the NFLPA and Sam McCullum says none of you should be reading any of the blogs to get your information. Of course, they didn’t attend what may have been one of the most important meetings of the year regarding retirees because they didn’t want to hear what everyone else wanted them to hear so they can’t tell you about it. (?!!)
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EDITOR’S NOTE: This first e-mail was just added on Saturday afternoon:
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Some reading material for your weekend. We have a recent newsletter from Hausfeld LLP and Zelle Hofmann that provides an update on much of what’s been happening with the retired players’ lawsuit as well as recent information and links of interest to football players and fans alike regarding concussions. They also provide some straight-forward analysis of the new CBA and how it will affect retirees’ benefits that you probably won’t be hearing from the NFLPA any time soon.
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And Sports Life Magazine’s Rick Kelsheimer spoke with us last month about Dave’s long battle with the NFL and the NFLPA and was gracious enough to provide us with an advance copy of his story that will appear in the October 2011 edition.
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We uploaded full copies of the newsletter and the Sports Life article 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 (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.
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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.
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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.
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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.
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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)?
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Here’s why: DeMaurice Smith is a former United States Attorney.
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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.
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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.
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That “shroud of trust” has been torn!
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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?
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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.
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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.
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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:
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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.”
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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)?
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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.
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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?”
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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.
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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.
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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.
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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.
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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!!!
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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.
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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!
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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.
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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.
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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.
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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.
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I did.
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Only a man with a clear conscience would know that feeling. I guess that leaves DeMaurice Smith out.
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I rest my case.
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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
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Spencer Kopf has 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.
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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 unanimously nominated by the Supreme Court of Texas to serve on the Judicial Qualifications Review Commission.
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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.
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