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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Happy Holidays, Football and Sports Concussion Establishment: 2012 Is the Year of the Tobacco-Style Lawsuit

Posted with the express consent of Irv Muchnick from his blog Concussion Inc.:

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We’re sorry but we just couldn’t help it. Comparing recent news involving two big-name coaches like John Madden and Joe Paterno Last week, John Madden came forward like the great leader he is and declared that they would now be taking players out of the game when they get concussed. In the Electronic Arts video game that bears his name. Nice. Is that much different than the Wall of Silence that we’ve seen from coach Joe Paterno surrounding the juggernaut of charges still mounting against his BFF Jerry Sandusky that include child sex abuse and rape? Even in the face of overwhelming evidence, both of them continue to believe in the sanctity of football to protect those at the top from any accountability. It’s this arrogant air that finds the rest of us scratching our heads wondering what planet these people are living on.
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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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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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By John V. Hogan, Esq.

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The new CBA contains a provision that on its face appears to be of benefit to some retired NFL players receiving Total and Permanent disability benefits under the Bert Bell/Pete Rozelle NFL Player Retirement Plan. Article 61, Section 2 (a) (i) provides that a player will be permitted to receive up to $30,000 per year of earned (i.e. “work”) income without affecting his disability benefits. Presumably this was enacted to allow guys to be paid some appearance fees or earnings from card signings and other events without jeopardizing their “total disability” eligibility.
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EDITOR’S NOTE: On Friday afternoon, NFLPA Disability Board Representative Sam McCullum wrote back to disability attorney John Hogan as part of our heated discussion on retired players’ Disability Benefits and their rights under ERISA law. (Click HERE to go back to that earlier post and be sure to read all the comments that are still coming in on that post.) We’re posting both of their letters here to continue an open review of how disability decisions are currently being made for retired players and how ERISA guidelines are not being applied. This is a must-read for any of you who have applied or plan on applying for your earned Disability Benefits.
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And before a few of you go off on us again for bringing the ghost of Gene Upshaw back into this fray, this is a direct reference to his original quote from an interview with The Washington Post’s Micheal Leahy in 2008. All too many retired players (even the late Johnny Unitas) lost their benefits because of this long-standing misinterpretation of the law. And that, my friends, is NOT bitterness – it’s reciting History. Those who do not follow or understand History are bound to make the same mistakes over and over again.
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From Page 26: The Washington Post Magazine February 3, 2008) – Super Bowl Sunday

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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!
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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!
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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.
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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.
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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!).
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Dennis Smith posted a comment late Saturday afternoon that his second GLA settlement check had just arrived. So I knew my check wouldn’t be too far behind, seeing as Dennis lives down in L.A.! And sure enough, when I went to my PO Box today, there it was!

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Aaron Hewitt: Dave at Home

Dear Dr. Benjamin,

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Whew! It looks like the end is finally in sight. This past Tuesday, Oct. 12th, Judge Alsup signed the official order to release the remaining proceeds from the GLA Players Inc. lawsuit, along with an amended order allowing McKool Smith to be reimbursed for their inadvertent partial payment of a Garden City Group invoice. Here’s a little shocker from the final order: 76 of the 200+ missing players were actually located using Social Security information and forms were sent to them to fill out and return in the court-ordered 4-week window. But only 32 of those players managed to return their paperwork before the deadline while three other “missing” players contacted the class attorneys on their own in the meantime. So they’ll also be included in the final disbursement. And two widows of players who passed away while all of this was going on will also be included in the final payout.

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