NFLPA “SCRAMBLES’ RETIRED PLAYERS AND HALL OF FAMERS

Dear Retired Players:

Through the “Discovery Phase” of the Class Action suit, the lawyers at Manatt, Phelps & Phillips, LLP have been able to gather information that is no longer confidential and is now available to the public.

The documents that I have attached for your review make it is crystal clear that the NFLPA conspired with EA to “scramble” the images of retired players in their Madden NFL Video Games.

Scramble: 1) To move rapidly, especially on the hands and knees
2) To struggle or contend eagerly or urgently
3) To mix confusedly; jumble
4) To cook while mixing and stirring
5) To process a signal so that it cannot be used or understood

The NFLPA perfectly fits each of the above definitions of scramble as follows:

1) The NFLPA is now the one that is scrambling on their hands and knees trying to defend their actions to the court, the public, and on October 20, 2008…….A JURY !

2) The NFLPA has been struggling and contending with retired players for decades and now the time has come to expose them for what they have done. Based on discovery documents, they appear to have conspired with their most lucrative licensee, Electronic Arts (EA) to undermine the license rights of the retired players they claim to represent.

3) The NFLPA has been confusedly mixing and jumbling their statements about how they represent and act on behalf of retired players while at the same time they make the argument that although the NFLPA promised the retired players that it would share in the proceeds with “all eligible NFLPA members,” the NFLPA then set up secret criteria for eligibility that required a member to have signed a GLA and to be on a roster of an NFL team. In short, the NFLPA decided to share royalties only with the active players.

4) The NFLPA has been “cooking” and mixing and stirring the books for quite some time now. The EA license agreement for the period covered by the Class Action Suit (2003-2007) generated approximately $125 Million in guaranteed revenues. The fact that the NFLPA chose to give almost all of that money to the administration of the NFLPA and a portion to the active players is the biggest kick in the ass they have ever given retired players.

5) The NFLPA has not only sent out signals that cannot be used or understood, but they’ve done it knowingly and with the intent of denying retired players their fair share of royalties. It is undisputed that the retired players who signed GLA’s and were used in scrambled fashion (Madden vintage team games) received NOTHING !!

The Class Action lawyers have more than a smoking gun to prove this; they have the person shooting the gun in the form of a letter fired off by former Players Inc. Vice President of Multimedia LaShun Lawson, to Madden NFL Game producer Jeremy Strauser that was cc’d to Doug Allen, then President of Players Inc. In the letter LaShun says:

“For all retired players that are not listed in either Attachment A or B, their identity must be altered so that it cannot be recognized. Regarding paragraph 2 of the License Agreement between Electronic Arts and Players Inc, a player’s identity is defined as his name, likeness (including without limitation, number), picture, photograph, voice, facsimile signature and/or biographical information. Hence, any and all players not listed in Attachment A or B cannot be represented in Madden 2002 with the number that player actually wore, and must be scrambled."

In the 2007 version of Madden NFL alone, more than 600 retired players who signed GLA’s had their images scrambled. They are not identified in the game by their names and numbers, but the game lists their exact weight, height, years in the league, and position they played.

The NFLPA and Players Inc. convinced over 2000 retired players to execute GLA’s with the promise of sharing royalties. Here is the exact wording from the GLA:

“The moneys generated by such licensing will be divided between the player and an escrow account for all eligible NFLPA members who have signed a group licensing authorization form”

What is absolutely shocking to me is that Doug Allen, the President of Players Inc. knew that he had signed GLA’s from retired players but instead of informing EA that they could use the very rights that they had solicited from retired players, he hid that information and instead suggested that retired player identities be stripped!

So what did the NFLPA (Players Inc.) do with the hundreds of millions of dollars that were generated by this licensing agreement with EA and other license agreements?

You’re gonna love this…….For every $1 dollar of revenue the NFLPA and Players Inc. took in, approximately 64 to 69 cents went to the administration and operation of the NFLPA! Can you imagine what the NFLPA would do if a player agent tried to get almost 70 % of a player’s contract! At least, now we know why there are so many high paid positions in the NFLPA and Players Inc.

Instead of working to help retired players, they have gorged themselves on the blood of our sacrifices to the NFL. Both active and retired players need to make sure that this does not continue. Players Inc. must put active and retired players at the top of their priority list. They can’t do that by taking almost 70% of the revenue and giving it to their own bloated bureaucracy. They are profiting off the reputations and rights of the men who believed that their union and its appointed representative, Players Inc., would protect their rights.

“Change” is the political word of the season, but that is exactly what needs to happen at Players Inc. The first thing that the acting NFLPA Executive Director, Richard Berthelsen needs to do is change the way that Players Inc. is structured. Gene Upshaw was not only the Executive Director of the NFLPA but he was also the Chairman of Players Inc. That is way too much power in the hands of one person. Mr. Berthelsen would be wise to step down from this position he inherited and have a search committee select a chairman that can produce real reform at Players Inc. Someone that knows and understands the proud history of the NFL and the sacrifices that were made by former players to make it what it is today.

Let’s face it, the most popular retired players in professional football are, without a doubt, our Hall of Fame (HOF) inductees. So how did the NFLPA represent them in their marketing efforts?

Discovery information shows that the NFLPA sold them out! This is a statement from the Plaintiff’s (retired players) opposition to defendant’s (NFLPA) motion for summary judgment that says it better than I can.

When a substantial competitor to EA began to emerge for use of retired players, EA and Defendants rushed to enter into a contract locking up the most valuable retired players’ rights in exchange for payments that were admittedly below market. PI’s Senior Vice-President, Clay Walker, admitted as much in the following email:

“Take Two [the EA competitor] went after retired players to create an “NFL” style video game after we gave the exclusive to EA. I was able to forge this deal with [the Pro Football Hall of Fame] that provides them with $400K per year (which is significantly below market rate) in exchange for the HOF player rights. EA owes me a huge favor because that threat was enough to persuade Take Two to back off its plans, leaving EA as the only professional football videogame manufacturer out there.”

This crass betrayal of retirees demonstrates both a breach of contract and a breach of fiduciary duty of the retired player class. The evidence shows that Defendants, rather than working to promote and maximize the returns to the retired players they purported to represent, were in fact working with their licensees to protect the interests of the licensees (and of themselves) at the expense of the retired players.

The hidden attempt by Defendants to undermine payments to retired players was neither isolated nor accidental. Defendants’ treatment of group licensing revenue confirms their callous disregard of the interests of retired players.
That last paragraph says it all!

Discovery information also shows that the NFLPA and Players Inc. unilaterally made a decision to take $8 Million dollars of the gross licensing revenue that should have been shared with retired players and reallocate it to the administration of the NFLPA and Players Inc. Even though the NFLPA and Players Inc. said they would subsequently conduct an independent third-party appraisal to assess the appropriateness of their decision, they have conceded that no such appraisal ever occurred.

The NFLPA and Players Inc. know that the memories of great games and great players from the past and present are what feeds the public appetite for professional football and in turn produces hundreds of millions of dollars through license agreements, the sale of merchandise and the sale of “images”, but it is sad and heartbreaking to know that they are “using” retired players to promote the game, while at the same time denying us any of the rewards.

It is equally discouraging and demoralizing to know that some of the money generated from the sale of retired player images went into the pockets of active players who have already benefited enormously from the sacrifices that have been made by the players that came before them.

The NFLPA and Players Inc. have tarnished the “image” of all retired players by their actions in this case and they need to know that we will not go quietly into the night.

Sincerely,

Jeff Nixon
Buffalo Bills
1979-1984