Commentary

Retired NFL players remain unhappy

Today's docket: Suing winning lawyers, an ethics investigation and latest on Vick judge

Updated: August 12, 2010, 8:38 PM ET
By Lester Munson | ESPN.com

They went to the U.S. Congress and demanded action. They ripped their own union. They confronted their league's commissioner. They were personal in their attacks. They described their plights in news conferences marked by self-pity and tears. And, now, they are suing the only people who ever accomplished anything for them -- the law firm that won a stunning $28.1 million for them in a jury verdict in a challenging case.

[+] EnlargeJohn Brodie
AP Photo/Paul SakumaJohn Brodie, left, and other former NFL players still feel they have been shortchanged over the years.

They are retired NFL players whose rage knows no bounds. Accusing their own lawyers of malpractice after the lawyers triumphed in a quixotic case against formidable opposition is a new measure of their frustration and their fury. The players who are leading the effort include Hall of Famers Herb Adderley, Paul Hornung and Chuck Bednarik, and 49ers great John Brodie.

Are they victims of historic injustice? Or are they old cranks who failed to achieve anything with their union as active players and who have made bad personal choices ever since? It's a mixture of both, and it's made worse by age and the damage done in a career of collisions and concussions.

With all of their claims and complaints, the only real success the old players have enjoyed came in the trial last November in San Francisco of their class action lawsuit against the NFL Players Association. Led by Ronald Katz and Peter Parcher of the law firm of Manatt, Phelps & Phillips, the 2,062 players managed to convince a jury that the late Gene Upshaw and their union had cheated the old boys out of royalties from videos games and other products.

Their victory was a surprise. Anyone who looked at the facts and the applicable law would easily conclude that it was a difficult case. Many lawyers would have refused the case as a sure loser. It was a complicated mess that seemed to defy analysis. And it was filed against a union with a rich history of triumphs in litigation.

But, in a litigation tour de force, the Manatt lawyers came up with an incredible outcome, a jury verdict that produced $12,600 for each of the players. What was the reaction of some of the plaintiffs? Joy? Satisfaction? Gratitude? No. They reacted in rage.

"We were screwed," observed Joe DeLamielleure, a Hall of Fame lineman who has been vociferous in his attacks on Upshaw and the union. "It's absurd. It's nowhere near enough, and they can't even produce the checks on time." The players have received one check for $6,300, and a second check has been delayed twice.

As unhappy as he is, DeLamielleure has not joined the attack on the players' lawyers. "I'm thinking about it," he said.

He is not the only one holding off on joining the malpractice claim. A spokesman for Gridiron Greats, an organization that offers assistance to older players in dire need, told ESPN.com that "as an organization, we have nothing to comment on regarding this [the lawsuit against the lawyers] as it has nothing to do with Gridiron Greats and is between the players and other parties."

Whether they're worried about the aura of sour grapes, the whining or the embarrassing lack of grace after a victory, DeLamielleure and the folks at Gridiron Greats are wise to steer clear of the attack on the victorious lawyers.

Close looks at the players' situation and the trial show that the lawyers managed to produce a total success in the face of factual difficulties, legal uncertainties and vigorous opposition led by the estimable Jeffrey Kessler and his team at the firm of Dewey & LeBoeuf.

The old players had signed licensing documents over the years allowing the union to use their images in games, videos and other products. The documents were, however, ambiguous at best. But, digging through piles of union records and documents from companies like EA, the producer of the popular "Madden" NFL games, the Manatt firm was able to show that the union was working only for active players and seemed to be making deals that deliberately avoided use of identifiable retired players.

In one telling sequence shown to the jury, an EA official asks a union official in an e-mail about using images and statistics from retired players as part of a "vintage teams" element in the "Madden" game. Instead of responding in an e-mail, the union official, LaShun Lawson, suggests that any further discussion about use of the old players occur only by telephone.

The resulting suspicion was that Lawson was covering her tracks and wanted to exclude retired players without any evidence that she was doing it. It appeared to be an admission from the union that it was stiffing the retired players and focusing its efforts on maximum royalties for active players.

[+] EnlargeGene Upshaw
Jason Parkhurst/US PresswireFormer players felt Gene Upshaw and the NFLPA did not represent their interests.

More powerful evidence for the older players came from a statement Upshaw made to a New York Times reporter after the retired players filed their lawsuit against the Upshaw-led union. The man whose heroic leadership of the union through decertification and a series of antitrust lawsuits that produced the greatest gains for the players in NFL history was uncharacteristically belligerent when it came to the older players. In response to a reporter's question, he suggested that there was little market for the older players and then added, "We could have the greatest dog food in the world, but if the dogs don't like it, we can't sell it."

A major difficulty faced by the players' attorneys was to estimate what the older players would have been paid if the union had worked on their behalf. There was no precise formula for the older players' losses. But, even with stiff resistance from Kessler and the union, the Manatt lawyers managed to produce expert testimony to show that a 50-50 split between retired players and active players would have produced $29 million for the old guys.

The union's deal with EA, for example, produces $25 million each year for the union. The current arrangement is that the players take 37 percent of the EA income with 40 percent going to the union and another 23 percent to Players Inc., the union's licensing company. Other deals produce another $56 million annually for the union and the active players.

The problem was that there was no legal agreement that allowed the retired players to take half of the union's licensing income. It was a gamble for the Manatt lawyers to try to persuade the jury that the older players should have so great a share of the royalties, and they were partially successful. The jury awarded $7.1 million of the $29 million claimed.

But then two things happened that demonstrate the nature and the extent of the triumph engineered by the Manatt lawyers.

First, in addition to the money that had been withheld from the retired players, the lawyers claimed punitive damages. They accused Upshaw and the union of deliberate and malicious scheming to deprive their clients of their entitled royalties.

In his final argument to the jury on punitive damages, Katz explained to the jurors that they must send a message to the union that its treatment of the old players was unacceptable. The union's net worth, Katz said, was $219 million, including a large lockout fund. If the jurors awarded 10 percent of the net worth to the old players, the union would get the message.

And, incredibly, the jury awarded $21 million, exactly what Katz had suggested. He may wonder many times why he did not ask for more, but it was a career-defining verdict for Katz and Manatt. Juries rarely award the amount suggested by trial lawyers. When a jury does award what the lawyer demands, it vaults the lawyer into an elite category. Thanks to this level of success in this case, Katz and co-counsel Parcher will be featured speakers at litigators' conferences for the next few years.

The second measure of the triumph is that instead of pursuing an appeal, the union and attorney Kessler agreed to pay the players $26 million of the $28.1 million verdict. That's a whopping 93 percent of the verdict, a remarkably high percentage. In return for an end to expensive and uncertain appeals, winning attorneys frequently settle for significantly lesser percentages of jury awards.

It is likely that political and public relations factors entered into the union's decision to pay the players and to end the dispute, but none of the lawyers involved is willing to discuss the situation because they are likely to be witnesses in the trial of the players' malpractice case against the Manatt firm.

In addition to the players' continuing rage over their plight, a highly unusual ruling from U.S. District Judge William Alsup, who presided over the trial, may have provided an impetus for the players' attack on their lawyers.

In any successful class action, the winning attorneys for the class ask the judge to approve the fees that they will be charging their clients. The Manatt lawyers suggested that their fees should be 30 percent of the settlement or $7.4 million. It was a reasonable request, typical of awards of fees in similar class action cases across the U.S.

Alsup, however, was enraged by Manatt's request and accused the firm of "overreaching." He was so upset that he attacked the firm and its work in a 12-page opinion that has become the road map for the angry players in their malpractice case against the Manatt lawyers. The allegations of malpractice are taken directly from Alsup's opinion.

With little factual support and scant legal precedent, Alsup issued a bill of particulars that criticized the firm for everything from the number of lawyers the firm used in the investigation and the trial to a line-by-line attack on the questioning of a witness. He was even unhappy that the Manatt firm had brought Parcher, one of its top trial attorneys, from his base in New York to the trial in San Francisco. Parcher is a formidable litigator who has done impressive work in trials involving Howard Stern, Woody Allen, the Rolling Stones, R. Kelly and Bruce Springsteen. The firm was dong its player-clients a favor when it added Parcher to the trial lineup.

Alsup's gratuitous attack on the winning lawyers is not just unusual. I have not seen anything like it in more than 40 years of daily contact with lawyers and judges.

It will be interesting to see Alsup explain his bizarre ruling as a witness in the trial of the players' malpractice case under interrogation from the attorneys who will represent Manatt.

It will also be interesting to see how many of the old players decide to join in the attack on their lawyers. Many may decide that the old boys have taken their rage a step too far. If they are interested in accomplishing something for themselves instead of indulging their continuing rage, they should find something other than this malpractice lawsuit.

Relevant Ramblings

[+] EnlargeMaxine Waters
AP Photo/Charles DharapakRep. Maxine Waters faces an ethics investigation.

Former NFL linebacker Sid Williams finds himself in the middle of an ethics dispute in the U.S. House of Representatives. Williams played for four teams, including a championship season with the Browns in 1964, a team that featured Jim Brown, Lou Groza and Paul Warfield.

The 68-year-old Williams, whom President Bill Clinton appointed as ambassador to the Bahamas, paid approximately $350,000 a few years ago for stock in OneUnited Bank, a bank that was heavily invested in disastrous Freddie Mac and Fannie Mae mortgages.

The value of Williams' stock plummeted to $175,000 during the financial collapse of 2008. His stock might have become worthless had OneUnited not received $12 million from the federal government's Troubled Asset Relief Program (TARP). Williams' wife, U.S. Rep. Maxine Waters, D-Calif., has been accused of violations by the House Ethics Committee for the role she may have played in securing bailout money for OneUnited.

Waters denies all misconduct, and, to the delight of the Republicans, is insisting on a public trial in the fall.


A judge whose name is familiar to sports fans is likely to make the first major decision in the legal attacks on Obamacare. U.S. District Judge Henry Hudson of Richmond, Va., the jurist who presided over the Michael Vick dogfighting prosecution, is now hearing arguments in a suit filed by the state of Virginia in March.

Hudson dispenses justice that is swift and sure. He is one of the perpetrators of the jurisprudential phenomenon known as the "rocket docket." Hudson and the other judges in the Richmond courthouse pride themselves on their rapid-fire decisions. The timing, it seems, may be more important than the substance of the decision.

From his performance in the Vick case, it appears that Obamacare is in for a rough ride. Hudson is a smart and insightful conservative who is not afraid to make a tough decision. He ruled earlier this month against a federal petition to have the suit dismissed and he noted serious constitutional questions in that ruling.

Hudson signaled his doubts that the commerce clause of the U.S. Constitution can be stretched to accept the health insurance requirement. Instead of dismissing a case that many thought would be dismissed early, he has forced the Obama administration to defend its reform in hearings and a possible trial. I expect his decision on the reform's requirement that everyone must have insurance is likely to reject the idea and will send the Obama administration scurrying to the higher courts.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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