Years away from the field, former National Football League players including Jim Brown, Preston Pearson and Reggie Rucker are set to clash in court with retirees Mark Gastineau, Dan Pastorini, Dave Casper and others.
At stake is the $50 million settlement of a 2009 lawsuit against the NFL, which the players said made money from using their images in marketing without sharing it with them.
U.S. District Judge Paul A. Magnuson in April tentatively approved an agreement under which an agency would be created to handle ex-player image licensing and the league would pay $42 million into a “Common Good Fund,” administered by retirees for their peers, plus $8 million to defray legal expenses.
Magnuson will be asked to grant final approval to that deal over objections it also pays the retirees nothing, in a federal court hearing today in St. Paul, Minnesota.
Plaintiffs’ lead settlement counsel “has not explained one defined benefit that any individual class member will receive because there is no evidence that any class member will receive any benefit at all,” lawyers for ex-Houston Oilers quarterback Pastorini and others said court papers.
The rift among former players has divided Pastorini, former Minnesota Vikings players Jim Marshall and Joe Senser and other named plaintiffs in the litigation from those who support the pact, including ex-Dallas Cowboys running back Pearson and former Cleveland Browns players Rucker and Brown.
“This is a landmark day for retired NFL players,” plaintiffs’ attorney Dan Gustafson said in a March 18 statement announcing the agreement. “We look forward to the opportunities that lie ahead in having the retired players and the NFL more closely aligned.”
Defending the deal in an Oct. 4 court filing, the attorney said the most important factor is how the settlement benefits compare to the strength of the players’ claims.
“The settlement’s combination of the Common Good Fund and the Licensing Agency thoughtfully addresses the interests of all class members, not just those who may have more valuable claims, but also those whose claims — although less valuable — may have greater individual needs,” Gustafson said.
Absent an accord, the players risked losing the case outright at trial, he said, citing potential NFL defenses including consent and that the retirees had simply waited too long to assert their claims.
The NFL is standing by its accord, a spokesman for the league, Brian McCarthy, said yesterday in an e-mailed statement.
“The settlement will benefit the large class of retired players, particularly those in need of medical and financial assistance,” McCarthy said. “This settlement that was negotiated under the close supervision of the court is fair and reasonable.”
Former New York Jets defensive linemen Gastineau and Abdul Salaam, once members of the four-man unit nicknamed the New York Sack Exchange for its skill in going after quarterbacks, are together in opposing the accord.
Their lawyer, Timothy Pramas, has asked Magnuson for permission to argue at the hearing.
More than 25,000 settlement notices were mailed to retired players or their known and potential heirs, according to a court filing. Ads were placed in People magazine and Reader’s Digest and broadcast on radio and NFL Network television.
More than 2,100 requests for exclusion were filed by players including former Atlanta Falcon Steve Barkowski, one- time Baltimore Colts receiver Raymond Berry, New York Giants defensive back Beasley Reece and Kansas City Chiefs place kicker Jan Stenerud, according to that filing.
Among those joining former Oakland Raider Casper, Pastorini and the other objectors are ex-Jets and Giants place kicker Raul Allegre and Colts punter Rohn Stark.
The accord was collaterally attacked in two subsequent lawsuits, one filed by Pro Football Hall of Fame member Curly Culp, John Riggins and Casper, and another filed by the estate of one-time Raider Jack Tatum, which were ordered dismissed by Magnuson last month.
The judge said they violated his April 8 preliminary approval order, which prohibited the filing of new cases while final approval of the settlement was still pending.
The ex-players have filed papers stating their intention to appeal that ruling.
“It is time, finally, to let the opt-outs go their own way and litigate their cases,” lawyers for Culp and Riggins said in an Oct. 14 filing with Magnuson. “NFL’s proposed class action settlement has proven to be unpalatable to a wide swath of former NFL players.”
The case is Dryer v. National Football League, 09-cv-02182, U.S. District Court, District of Minnesota (St. Paul).
–Editors: Glenn Holdcraft, Andrew Dunn