Tumultuous Times for the NFL Players Association

A federal jury awarded over 2000 NFL retirees more than $28 million in damages last week after a three week trial in San Francisco in a class action lawsuit against the NFL Players Association (NFLPA). The lawsuit, filed by hall of fame cornerback Herb Adderley, claimed that the NFLPA actively excluded retired players from lucrative marketing deals in an attempt to increase the royalties for current players.

A particular point of contention on the part of the retirees was the use of their likenesses in EA Sports’ Madden NFL video games. The plaintiffs pointed to a letter from the NFLPA to EA Sports demanding that EA scramble the images of the retired players on the vintage teams included in the game so that the NFLPA could avoid paying them any royalties. While the Madden vintage teams used rosters with no-name players and likenesses, the retirees contended that the players were easily recognizable based on their characteristics. The jury agreed, awarding $7.1 million in actual damages and another $21 million in punitive damages to the retirees.

The jury award comes at a time when not only tensions between the union’s representation of current players and former players are high (not only over marketing, but over the highly publicized disputes concerning retirement and disability benefits as well), but the NFLPA also faces the challenge of replacing longtime executive director Gene Upshaw with a new commissioner who appears to rule with an iron fist, and the possibility of labor strife as the current collective bargaining agreement is due to expire after the 2010 season.

The choice of a new executive director for the union promises to be an important one. Gene Upshaw was highly respected during his tenure, but his leadership was also the source of substantial criticism. While some supporters suggest that the current labor peace and the substantial success of the NFL as a whole were reasons to maintain the status quo, detractors contend that Upshaw’s relationship with the league owners was much too congenial. Bryant Gumbel once suggested that Upshaw was “docile” and that Paul Tagliabue made him his “personal pet.” These critics point to the fact that most NFL salaries are not guaranteed and that the hard salary cap severely limits players’ earning potential. Comparisons to baseball and the strength of its players’ union are inevitable.

The new executive director, expected to be elected at the NFLPA’s annual meeting in March, will be immediately confronted not only with the issue of the tensions arising out of the recent lawsuit, but also of the expiring CBA. The current deal, which could have carried through the 2012 season, was opted out of by the owners this year. Assuming a new deal is not struck beforehand, the 2010 season will be played without a salary cap. This decision on the part of the owners should signal to the NFLPA that the owners are not necessarily content with the status quo and will be looking to tighten the purse strings once again.

The new NFLPA executive director will have an immediate impact on how the union will be perceived by the owners entering negotiations for a new CBA and on the perceived strength of the bargaining unit. Players and their agents alike should be lobbying for strong advocacy. A cozy relationship with the front office should not be the number one priority, but instead more guaranteed money in player contracts and some unification between the union’s representation of current and former players should dominate the initial agenda. The NFLPA faces a potentially difficult and tumultuous road ahead and strong leadership will be essential to the future of the players, their representatives and the NFL’s retirees.

Guest contribution by Michael C. Frilling, Esq.; General Counsel; www.fksportsmanagement.com