Dave Pear's Blog

We just finally managed to download and convert a copy of the entire 637-page NFLPA 2009 LM-2 that was officially filed with the Dept. of Labor on May 28, 2010. It’s another big one!

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Some interesting notes on our first cursory review:

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NFLPA Lawyers Door

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.)

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Then you have Jeffrey Kessler who fought against the retired players in the Parrish GLA lawsuit by representing the NFLPA (who’s SUPPOSED to be representing the retired players’ interests – got that?!) and then turns around to represent the Union in the recent American Needle antitrust case in the Supreme Court. You also have CAA superagent Tom Condon who makes the big bucks representing many of the active players in their contracts with the League while also supposedly looking after retired players’ interests by serving for years as one of the 3 NFLPA representatives on the Disability Committee (most applicants get turned down for full benefits). And last but not least, you have NFLPA General Counsel, Richard Berthelsen, who’s been there as long as the wallpaper advising Upshaw over the years.

Gene Berthelsen

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Moran vs. NFLPA and NFL Players Inc.

Does the NFLPA think the same way about you?

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Valerie Thomas

Former NFLPA Director of Human Resources Mary Moran is at WAR against the NFLPA and she is taking no prisoners. In August 2009 Moran filed a $4 million lawsuit that claimed sex discrimination, retaliation and wrongful termination of her employment in violation of public policy because she participated in a DOL Office of Labor Fraud and Racketeering investigation of the NFLPA. Moran claimed that the actions of NFLPA management created serious and troubling ethical concerns for her. General Counsel Richard Berthelsen called Mary Moran “a necessary casualty.”

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In our last post – Valerie Thomas: Life Under Upshaw – former NFLPA Research Analyst and Paralegal Valerie Thomas discussed her years of abuse and violation of her employee’s rights under the heavy hand of departed Executive Director Gene Upshaw and his inner circle. Bob Grant had posted several questions to her in the comments section about the toll from her long battle with the NFLPA and how it has affected her and her family over the years. This is Part 2 of Valerie Thomas’ story.

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We hope your legal team is reading this blog, Mr. Smith. You owe Valerie Thomas big time!

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Bob’s Questions:

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Valerie Thomas

Dave,

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Thank you for your earlier comment and for allowing me to be an active participant on your blog.

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It’s hard to accept that a union whose efforts that you supported, including financially, would turn against you in your time of need: your  post-football career.

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I know first-hand what it feels like to be ignored and it is even more dehumanizing to have been ignored while looking in the faces of the perpetrators on a daily basis. For example, my basic needs and rights to have access to my job were denied. When I reported to work, I was locked out with no key to get in the front door and no key to access the elevator. Once on the elevator, I couldn’t get off on the floor where I worked. Instead, I could only get off on the floor below mine and had to walk up a public stairwell. During the mornings, when I had to do business on other floors I had to walk up and down the public stairwells. I could not use the elevator like everyone else, including interns and temporary employees. At lunchtime and upon my return from lunch, I had to go through the same routine with no access to my floor and walk up a public stairwell (two sets of 12 stairs = 24 steps each way). In the afternoons, if I had to do business on other floors, I had to walk up and down the public stairwells. NFLPA management and its legal representatives harassed, intimidated and retaliated against me; they dared me to protect my rights and when I did, they then cheated and stole my livelihood and my family’s legacy.

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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.

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As so many of you already know, Bernie Parrish was the original plaintiff in the NFLPA/Players Inc. lawsuit – always was and always will be. And we’ll continue to refer to that case as Parrish vs. Players Inc. I guess some people feel that if you keep trying to spin it another way often enough, people will forget – just like the NFL and the NFLPA. But we did notice that even as contentious as it got throughout the trial, both Jeffrey Kessler and Richard Berthelsen were generally professional and respectful enough to refer to the case as Parrish vs. NFLPA/Players Inc. in their filings. But things deteriorated rapidly between Bernie and his hired attorney, Ron Katz. As a result, you will notice the filings that came out of Katz’s office after a certain point were generally filed as Herbert Adderley vs. NFLPA/Players Inc. Some people have been fed a hook, line and sinker to diminish Bernie Parrish and his years of independent work for all retired players.

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On a quick side note for those of you who were on that final GLA Settlement list, we’re going to emphasize here once again: Watch your mail for the paperwork from Garden City Group over the next week. Some of the guys have already reported receiving their information already. If you don’t receive it by the end of December, be sure to call them at (866) 697-5552 and leave them a message. The folks at Garden City Group will get back to you quickly. It’s possible they might have an old or wrong address for you. Then be sure to send the completed form back to them as quickly as you can (it has to be postmarked no later than Feb. 9, 2009 to qualify). Then put it in an envelope and mail it to this address (by USPS Certified Mail with confirmation so you know they got it):

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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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For the first time, the NFL and the NFLPA extended an invitation to “The Independent Retired Players” to attend and participate in a meeting called to discuss the problems that continue to plague Retirees. Bob Grant, an Independent Activist and Advocate for our cause, was asked to attend on behalf of the Retired Players.

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While much was left unaddressed at the end of this first meeting, many issues were brought into the discussion that were not a part of the original limited agenda announced by Harold Henderson (NFL Attorney), who chaired the meeting.

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Grant told the Attendees at the Meeting that the days of the NFL and the NFLPA with their “Insiders” making decisions for Retired Players without our direct participation have to end.

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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.

In other words, even if a $14 million policy cost as much as $250,000 a year (which it wouldn’t), it would still have made prudent business sense rather than self-insuring such a large payout. At $250,000 a year, it still would have taken 56 years (!) to pay out $14 million in annual premiums so it would have been a no-brainer decision. You would think that with brilliant business advisors such as Richard Berthelsen and Mary Moran in the executive offices, someone would have stepped up and said, “Gee, we need to put an insurance policy on the Executive Director in case something happens to him.” Or “Gee – Gene wants a $14 million payout to his widow when he dies. Let’s get an insurance policy now!” So why didn’t that brilliant Human Resources Director Mary Moran – paid nearly $250,000 a year for her “smarts” – think of it instead of spending her time sneaking around the NFLPA offices pretending to be an important undercover snitch? And how likely is it that the master of legal obfuscation, Richard Berthelsen, didn’t have a hand in crafting the legal contract that handed $14 million to Gene Upshaw’s widow in one lump sum rather than having it covered by a simple insurance policy (that they likely couldn’t get)? As in all conspiracies, it always comes down to, “What did they know and when did they know it?”

We posted the 2008 LM-2 a while back (click HERE and HERE to read those posts) and discovered that the NFLPA had liability insurance that covered the $5 million+ cost of litigation in the Players Inc. trial. So most of Jeffrey Kessler’s legal fees were paid out of an insurance policy that was put in place just for that purpose. That’s why you have insurance.

This is all conjecture at this stage but a $14 million payout is simply that – a WHOLE lot of money. One thing that DOES come to mind is the possibility that Gene Upshaw either already KNEW he was ill (which would have automatically made him uninsurable) and didn’t disclose it to anyone outside of his inner circle. Which would also mean that several people would have been involved in covering up this deception to defraud the NFLPA membership out of $14 million. Or – worse yet – if the NFLPA basically self-insured Gene Upshaw without full and honest disclosure, would that make the payout fraudulent and reversible? And who should be held accountable? If it had been underwritten by any insurance company instead, I think we’d certainly see them conducting a very serious investigation before they paid Mrs. Upshaw one dime. And even though the retired players still have no vote in their own Union, ALL players should be demanding an open and transparent disclosure and review of  ANY agreement to pay out $14 million of YOUR money. With Executive Director DeMaurice Smith publicly instructing active players to start pinching pennies to prepare for a potential lockout next year, was paying out $14 million in cash a good example to set at a time like this?

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I would urge every retired football player to write Judge Alsup whether you are on the (thus far) confirmed Katz/Adderley Kessler/Berthelson list of 2062 or not; there is proof of over 3,000 but it’s up to Judge Alsup to demand it as part of perjured testimony.

Many of you know you signed GLA’s but are not included in Players Inc. records managed by Players Inc. employee, Kelly Skubick, who told interviewers she took care of licensing for “over 3,000” retired players in an article published on Oct 3, 2008. Katz refused to use this information which I supplied to him in time to be used in the trial. Kelly Skubick has very recently left her $50,000+ job at Players Inc., a job she told the interviewer that she loved. I now understand that her computer with the records of over 3,000 retired players who are covered by licensing agreements may have been damaged by the convenient fire in the NFLPA offices shortly after DeMaurice Smith took office replacing Upshaw. Katz has allowed Berthelson and Kessler to continue saying only 2,062 retired players had signed GLA’s when he knew that was not true and that the Players Inc. employee who handled servicing those GLA’s on a daily basis said there are over 3,000. That, Mr. Katz, is perjury on their part as I pointed out to you shortly after I gave you that information which certainly extends any time limit problems you claim to exist.

This issue is important since it reduces the damage award in this case by 33% whatever the true amount of the award should be. That is an increase of $9.3 million raising the incorrect $28.1 million to $37.4 million while 133% of $106.9 million raises the Rowley-calculated damages to over $140 million. Since the NFLPA’s Executive Committee calls $28.1 million “Chump Change,” they need a stronger message – like $140 million from Judge Alsup’s court.

PERHAPS THE BEST OPTION IS TO PRINT THIS OUT, SIGN IT AND MAIL IT TO JUDGE ALSUP. LET HIM KNOW WE ALL CARE, WE ARE MAD AS HELL AND WE AREN’T GOING TO TAKE IT ANY MORE! continue reading »

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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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4/17/2009
Subject: Madden not paying retired players while collecting over $100 million in royalties off the retired players’ backs – Did Madden scramble your identity to keep from paying you?

The retired NFL players who were used in Madden EA video games will be suing Madden and EA for using us in those games without compensating us. Madden’s agent Sandy Montag boasts he and Madden collected over $100,000,000 in royalties while paying the retired NFL players used in those games absolutely nothing. Madden knows that the ugly truthful litigation is coming and is probably factoring that into his retirement. I doubt he wants to answer all those fans who will be asking, “Why, John Madden? Why did you screw all those retired players over, you seemed like such a friendly, good-natured buffoon?”

We probably won’t use Manatt Phelps and Phillips and McKool Smith, the attorneys who obtained a $28.1 million verdict for us against the NFLPA for “scrambling retired players identities” in those video games. The jury found it a “grossly fraudulent” action taken so they wouldn’t have to pay the retired players. That case Parrish v NFLPA Case No. 07 0943 WHA carries $21 million in punitive damages and is being appealed to the 9th Circuit Court of Appeals, which doesn’t mean the decision has been overturned nor does it lessen the verdict found by the jury. In my opinion, Madden should have been included in our licensing suit against the NFLPA and so should Electronic Arts.

Irregularities in the trial may even bring about a retrial that will allow the award to be in the $100+ million range where it should have been instead of only $28.1 million. The case is already being retried in the media by Richard Berthelsen and Jeffery Kessler. Regardless of their propaganda, the case has nothing to do with the issue of the number of high profile players not signing what the Judge William Alsup calls a “masterpiece of obfuscating.” That “masterpiece of obfuscation” is the Group Licensing Agreements (GLA) drafted by the NFLPA’s Richard Berthelsen and Jeffery Kessler. The “grossly fraudulent obfuscation” – that GLA – is the issue that lost the NFLPA the $28.1 million. Our side of the trial was warned by Judge Alsup that if we talked to the press about the case he would hold us in contempt. On the other hand, Berthelsen and Kessler seem to be exempt from spinning their previously defeated arguments to try to win them in media articles before the 9th Circuit Court hears the case. Worse yet, they’re now using publications where they have spent over $281,000 over the last several years for NFLPA advertising. So they’re not only retrying the case in the media, they’re actually paying the media to retry the case as an advertisement in the court of public opinion to try to influence the 9th Circuit Court. Are those actions contemptuous? It seems to me that most of what they do is contemptuous. Rigging a union election is contemptuous and it is also illegal.

2,062 retired NFL players participated in our lawsuit with only 12 retired players opting out, 10 of whom work for the defendant – the NFLPA. That’s an amazing vote of endorsement by the retired NFL players.

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Our good friend and player advocate, disability attorney John Hogan, was able to attend that Symposium held at the Baltimore School of Law on Thursday. Here are his notes from that day:

Notes from

The University of Baltimore School of Law’s
First Annual Sports Law Symposium
From Rookie to Retirement:
The NFL Universe in the New Economy

I was very impressed with the overall program. Law School Dean Phillip J. Closius should be commended for the effort.

It was announced that with the support of the Ravens and Orioles, the Law School will be starting a Sports Law Institute, under the direction of Associate Professor Dionne Koller. So, hopefully it may become a forum to discuss and educate on the issues facing retired NFL players.

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