SBJ/December 10-16, 2012/Labor and Agents

100th anniversary looms in NFL battle

As the NFL negotiates to end a more than three-year-old lawsuit brought by retirees seeking payment from NFL Films for use of their likenesses, a new concern is playing a part in the settlement talks: securing the players’ image rights in advance of the league’s 100th anniversary in 2019.

“The NFL Films case … has gained a bunch of steam and is becoming a critical one as the NFL starts to plan for its 100th anniversary coming up in a few years,” said a source involved with the negotiations.

A letter posted online prompted the NFL to ask a federal court to hold retiree Bob Lurtsema in contempt.
The NFL confirmed it has already started planning marketing and promotions for that anniversary, as well as the 50th Super Bowl in 2016, but league officials declined to comment further and specifically would not comment on the NFL Films case.

That case got heated last week, when the NFL asked the Minnesota federal court hearing the case to hold a retiree, Bob Lurtsema, in contempt for publishing details of what the league described as confidential settlement talks that occurred the week after Thanksgiving. Lurtsema attended those talks as a guest of a player lawyer, Bob Stein. The court in September placed a gag order on the parties to the case, though a faction of retirees contend the court rescinded the order a month later.

Lurtsema’s letter was posted on davepear.com, a popular retiree blog that is almost always critical of the NFL. In it, Lurtsema claimed the league offered $50 million to settle in exchange for the retirees’ image rights for future use. The source familiar with the talks confirmed that amount.

The prospects of a settlement, however, are unclear, as the retirees appear divided. Some are seemingly behind one lawyer, Michael Hausfeld, who allegedly supports the offer. Another group, including most of the named plaintiffs, who now work with attorney Stein, dismissed the $50 million offer as insufficient.

“Defendant NFL understandably would prefer perpetual stasis and unlimited debate on a Settlement proposal that was dead-on-arrival months ago,” the retirees wrote in a motion last week opposing the league’s contempt push and signed by Stein.

A spokesman for Hausfeld has declined all comment, doing so again last week, citing the gag order that his counterpart, Stein, now says in court papers does not exist. Hausfeld and Stein’s representation of the players has become another undercurrent in the lawsuit. In fact, Stein is representing Dan Pastorini in a lawsuit against Hausfeld over his legal services in the case.

Other plaintiffs besides Pastorini include former players Fred Dryer, James Marshall, Joe Senser and Elvin Bethea. The case, Dryer v. NFL, hinges on whether the collective-bargaining agreement in place when they played ceded their image rights in perpetuity or just during their playing days. The players are seeking certification of a class covering 20,000 retirees.

There is no debate that past CBAs granted the NFL the right to use the players’ images for promotion and other programs during the terms of those labor deals. But only the most recent CBA, signed in August 2011, specifically said that the granted rights extended beyond the end of the agreement.

It is not hard to grasp why the league would want to ensure it had unfettered access to retirees’ likenesses for a 100th anniversary celebration.

“[The league] definitely should do the 100-year team, top 100 NFL players of all time, top 100 plays of all times,” said Lou Imbriano, former New England Patriots chief marketing officer. The anniversary, he added, is great for memorabilia and merchandise opportunities, as well as for events and TV.

“Every team should have a 100-year patch and a special 100-year jersey,” he added. “Lots of opportunities.”

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