Commentary

Serious setback for NFL retirees

Rebuff for ex-players, secrets in MLB's beer suit, and slow going for the 'rocket docket'

Originally Published: December 16, 2010
By Lester Munson | ESPN.com

Malpractice. Breach of contract. Constitutional violations. Don't you just love sports? What's not to like when you have an unobstructed view from our Courtside Seat? From here, you can see into the NFL's past, into MLB's future and … well, maybe even all the way into the Supreme Court building for a landmark case that could define a presidency. Today, we start with …

The Ragin' Retirees

The end came swiftly for a group of disgruntled, old NFL players in a San Francisco courtroom. And rightly so. After all, they were suing their own lawyers, the same lawyers who won a stunning $28.1 million victory for them in a difficult case against the NFL Players Association.

How swift was it? It was like losing a football game at the coin toss. Less than five months after the old boys filed their lawsuit (no time at all under the clock that governs complex litigation), the same federal judge who presided over their courtroom triumph told them this week that they had no case against their lawyers and threw them out of court.

In his 13-page ruling, U.S. District Judge William Alsup showed his scorn for the players' action against their attorneys. Instead of the usual courthouse invitation to rewrite their lawsuit, he told them they should not bother with any further attempts to state a case, asserting that its shortcomings "could not be cured by amendment."

[+] EnlargeChuck Bednarik
AP Photo/Rick SmithEx-Eagles great Chuck Bednarik rarely minces words about today's NFL and the way retired players are treated.

It is a setback for older players who have been battling for licensing money for years, demanding action from the U.S. Congress, ripping their union, confronting the league's commissioner, and describing their plight in press conferences marked by self-pity and tears.

Instead of gratitude for the remarkable work of their lawyers who won a nearly impossible case against formidable opposition, the old players including NFL immortals John Brodie, Chuck Bednarik, Paul Hornung, Herb Adderley and Raymond Berry, among others -- wanted more, much more. The only targets left for them, apparently, were their own attorneys.

It might be time for the players to take a step back and reconsider a rage that has known no bounds. They view themselves as the victims of an historic injustice; but the fact is that they failed to do anything for themselves and their union while they were playing, and now they're trying to blame the late Gene Upshaw -- the NFLPA leader who achieved free agency, big bonuses and high salaries for players while also establishing new heights in disability and pension benefits.

For example, Bernie Parrish, a 74-year-old former Cleveland Browns defensive back who was the leader of the effort that led to the successful lawsuit against the NFLPA, has redefined the word "outspoken" in his demands for what he views as justice for older players and his criticism of Upshaw.

In his written decision this week, Judge Alsup reprised some of the nasty and embarrassing actions of the old players in a less-than-subtle suggestion that they might have gone too far when they decided to sue their own lawyers. He suggested that Parrish's attacks on Upshaw amounted to a "racist vendetta."

Here is an exchange between Parrish and an NFLPA attorney in a deposition before the trial, with Parrish testifying under oath:

Q: Sir, it is your view that Mr. Upshaw should be compared to people like Caesar, Napoleon, Idi Amin, Hitler, Stalin, Milosevic, and Saddam, correct, that's your view?

[+] EnlargeBernie Parrish
Bill Pugliano/Getty ImagesFormer Cleveland Brown Bernie Parish was singled out by the judge for his out-of-bounds outspokenness.

A: In my opinion, yes. Absolutely, yes.

On an Internet blog cited by Judge Alsup, Parrish, who is white, raged incoherently about Upshaw, who is black, this way:

Upshaw has signed a deal to sell Super bowl tickets in a partnership with Black Entertainment Network. It is part of the Upshaw campaign to marry the NFLPA to the gangster rap and hip hop industry, a marriage that sets up an unprecedented opportunity for money laundering from Washington, D.C./Baltimore drug rings through gangster rap, hip hop industry contacts through the NFLPA and NFL players who are expected to throw around lots of cash.

That's just a sample of Parrish's invective. To erase any doubts about his motivation, Parrish, in a submission to the U.S. Department of Justice during one of his campaigns (also cited by Judge Alsup), tried to describe his idea of Upshaw's approach to player issues:

The retired player retirement benefits issue is tainted with vindictive Upshaw motives to get back at the white pioneer era players for how the white NFL management and owners treated blacks in the earlier days of the NFL.

Parrish was unable to account for money that he raised from other retired players when he formed the Retired Professional Football Players for Justice a few years ago. Responding to questions before the trial in San Francisco, neither Parrish nor the organization's treasurer could explain where the money was spent.

Reviewing the details of Parrish's leadership of older players, Judge Alsup's opinion this week included a public reminder that he had disqualified Parrish from collecting anything from the $28.1 million verdict.

In his ruling, the judge told the players that if they wanted to complain about the lawyers efforts on their behalf, the players should have objected during the process that led to the distribution of the funds collected in the litigation.

[+] EnlargeGene Upshaw
AP Photo/Morry GashTo hear some of the retired players tell it, the late Gene Upshaw was involved in a sinister conspiracy.

The players, Alsup asserted, "were afforded numerous opportunities to raise objections to them over an extended period of time -- at the three-week trial itself, during the eight-month period while [an] appeal was pending before the settlement approval process began, or during the four-month approval process."

Since they didn't raise the issue of the lawyers' performance during those procedures, the judge said, they cannot now claim that the lawyers were guilty of malpractice. Alsup was relying on an ancient legal concept known as "waiver and estoppel." It means that if you didn't talk about it then, you are barred (estopped) from talking about it now.

The group of old players must now decide what's next.

Maxwell Blecher of Los Angeles, the attorney who represents the players in the malpractice suit against their lawyers, told ESPN.com, "We've only now begun to decide what to do. An appeal is possible. Another lawsuit is possible."

Despite the speed and decisiveness of Judge Alsup's decision on the malpractice suit -- or maybe because of it -- the players might have some grounds for an appeal if they decide to do it. Their lawyers will attack the judge's reasoning on the waiver and estoppel theory. In fact, Judge Alsup's rationale is dubious at best. Even if the players had raised the issue at the times the judge says they should have, it would have been impossible for him to do much about it after a jury had heard and seen the evidence and made a unanimous decision.

It would have been difficult, if not impossible, for any player to diagnose an error by his lawyer during the trial and then raise the issue with Judge Alsup after the trial. Alsup frequently praised the players' lead attorneys, Peter Parcher and Ronald Katz, and likely would have been reluctant to criticize or to change the jury's verdict.

The judge's stern words about the players' malpractice lawsuit included an assertion that the players' attorneys had "cribbed" their legal theory from an Alsup opinion issued shortly after the trial. In this context, the word "cribbed" carries considerable stigma. It describes a form of plagiarism, a bizarre assertion from Judge Alsup. From their first moments in law school, lawyers are taught to study judges' opinions, to take ideas from them, and to use them in their arguments.

The retired players can use the holiday season to contemplate their next step. A decision on an appeal must be made by Jan. 12. Despite whatever legal openings Judge Alsup's decision might have given them, let's hope the peace and joy of the coming weeks somehow push the old boys toward gratitude for what their lawyers achieved and a decision to leave them alone now.

Baseball and beer pong

The business benefits were big for Budweiser and baseball. For more than 30 years, they thrived together, beer and baseball, a uniquely American partnership. But now their only communication is the angry bombast of the courthouse.

Responding to Anheuser-Busch's lawsuit seeking to enforce a supposed sponsorship contract -- Courtside Seat chronicled it a couple of weeks ago here -- Major League Baseball and its attorneys accuse the brewer of no less than "fraud, deceit, concealment, misrepresentations, and unclean hands."

Budweiser Clydesdales
AP Photo/Kyle EricsonIf Budweiser is no longer the official beer of baseball, how will the Clydesdales spend their summers?

There is little doubt about MLB's anger in this case. Not only did baseball's attorneys make those accusations, they filed their own counterclaim against Anheuser-Busch (A-B).

The brewer claims in its lawsuit that it has an enforceable contract with MLB to make Budweiser the league's official beer. MLB replies in papers filed recently that there is no deal and that Anheuser-Busch "reneged" when it made another deal "of unprecedented size and scope" with the NFL to become its official beer.

But the Lords of Baseball are not merely angry about A-B's new arrangement with the NFL. Their feelings are hurt, too. They say those nasty people at Anheuser-Busch "fraudulently induced" MLB to renew the sponsorship contract in a "letter of intent." But as they worked on the renewal, Anheuser Busch "withheld" the fact that it was also bargaining with the NFL.

The Anheuser-Busch agreement with the NFL "makes it impossible" for MLB to be "A-B's top, number one sports property in the United States."

Either they are numero uno with A-B, or they will take their baseball and go home, according to MLB's court papers.

Neither A-B nor MLB has filed in court the seven-page letter of intent, signed by both sides, that is the key to the dispute. Nor would either side produce it for ESPN.com despite requests by telephone and by e-mail. In most lawsuits, the contract in question is filed in court at the time the lawsuit is filed.

Are they hiding something? Is there material in the letter of intent that is even more embarrassing than the dispute itself? Are both sides trying to keep from disclosing some of the terms of the deal?

As bitter as the dispute appears to be, it is likely that they will soon agree to ask for a court order that will impound everything and shield the letter of intent and other documents and e-mails from public view. They will argue that they must protect confidential business materials. In all likelihood, though, they will be trying to hide embarrassing materials.

The health care dogfight

It was no surprise to Courtside Seat that U.S. District Judge Henry E. Hudson concluded recently that the Obamacare requirement that compels all Americans to buy health insurance is unconstitutional. (Courtside Seat broached this subject, too, at the bottom of the column back in August.)

Hudson's quick demeanor and conservative outlook became apparent as he presided over the Michael Vick dogfighting prosecution, issuing tough and swift orders and sentencing Vick to more time in the penitentiary than the prosecutors requested. (Here's a detailed look at Hudson's career at the time of the Vick case.)

The only real surprise is that Hudson waited to be the third federal judge to rule on the health care issue. Both Hudson and the other jurists in the Richmond courthouse pride themselves on their "rocket docket." Their efficiency is known nationwide among lawyers and judges.

The rapid-fire justice in Richmond frequently seemed to baffle Vick and his out-of-town attorneys in the weeks leading to Vick's plea of guilty and subsequent incarceration. They were often surprised and slow to react to developments, including the guilty pleas from Vick's colleagues in the kennel operation.

But even Hudson slowed down a bit has he pondered Obamacare. He issued a 42-page opinion that is a model of constitutional interpretation and may become the basis for a decision in a year or two in the U.S. Supreme Court.

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.

MORE COMMENTARY >>

ALSO SEE