Skip navigation
Sign up to follow your favorites on all your devices.
Sign up

Retired players’ suit against NFL permitted to proceed

Last year, a group of six retired NFL players filed a class action against the league regarding claims that the league improperly is profiting from the names and likenesses of former players without ongoing compensation. On Friday, a Court in Minnesota allowed the action to proceed.

The lawsuit, filed by Hall of Fame defensive end Elvin Bethea, former Oilers and Raiders quarterback Dan Pastorini, former Vikings defensive end Jim Marshall, former Vikings tight end Joe Senser, former Vikings and Chargers guard Ed White, and former Rams defensive end Fred Dryer, focuses on the products of NFL Films, which rely on footage from football games of the past to maintain and generate interest in the sport in the present and future.

Michael Abbott of Zimmerman Reed, the firm representing the former players, has advised us of Friday’s denial of the league’s “motion for judgment on the pleadings.” In other words, the NFL tried to get the case thrown out, based on the contention that, even if the factual allegations are 100 percent accurate, no legal rights were violated.

“There is no dispute that these videos promote the NFL,” said Bob Stein, a former NFL player and attorney representing the players, in a press release provided to us by Abbott. “This suit is on behalf of thousands of players who want nothing more than to obtain their fair share of the revenues the NFL has earned, and the brand it has built due to their contributions. This is especially current with the growth of distribution channels such as the NFL network and worldwide Internet marketing. . . . This is an opportunity for the NFL to do the right thing by its retired players, on whose back the league was built.”

In denying the motion, the Court recognized that, as Stein’s last comment proves, the suit is the manifestation of the disconnect between the current financial condition of players who earned far less money and a professional sports league that, through the efforts of those players, now generates multiple billions of dollars per year in revenue.

“Plaintiffs’ filings mention frequently the dire straits of many former football players, who suffer from serious football-related injuries and who did not earn the high salaries that are prevalent today,” the opinion states in the concluding remarks. “The Court does not minimize the situation; it is, however, not relevant to the merits of the current Motion or even to the ultimate resolution of the legal issues in this lawsuit. On the other hand, the Court urges the parties to consider the plight of former players in any informal resolution of the claims at issue here.

“The NFL earns a substantial amount of money from its NFL Films division. That profit would not be possible without the players who played in the games that are showcased in these films. Whether or not the NFL infringes on the players’ rights of publicity, the NFL might consider determining a fair share of the profit it receives for the films at issue and making a corresponding payment to the pension fund for retired players. By the same token, the Plaintiffs, who profess great concern about their less-fortunate brethren who suffer long-term health consequences of playing in the League, might be willing to forego individual payment for the good of all former players. At this juncture, of course, the Court may not order such relief. However, the Court encourages the parties to consider whether the costs of litigation are justified in light of what appears to be a simple way to resolve the parties’ differences.”

For those of you interested in the legal mumbo jumbo regarding the claims made by the players and the defenses advanced by the NFL, we’ve put them after the break, since we hate to put 90 percent of the audience back to sleep on this fine Saturday morning.

The players’ claims arise under three general categories. They contend that the use of their names and images constitutes false endorsement under section 43(a) of the Lanham Act, 15 U.S.C. § 1125. The players also invoke the “right of publicity” under the common law and/or statutes of Minnesota, California, Texas, Arizona, and the other 50 states. Finally, the players contend that the NFL has been unjustly enriched by its use of Plaintiffs’ names and images to promote the league.

In the motion, the NFL claimed initially that the contents of the NFL Films productions are protected by the First Amendment. The Court, however, found that the programming constitutes “commercial speech,” which enjoys a lower degree of Constitutional protection. Whether the commercial speech rights outweigh the players’ rights to their names and images will be determined via further litigation.

Also, the NFL claimed that the federal Copyright Act prevents the lawsuit. The Court acknowledged that, indeed, the NFL holds a valid copyright for the properties at issue. But the Court concluded that the players’ right to their identities overcomes the copyright protections applicable to the video footage. “The right of publicity thus protects very different rights than does copyright,” the Court wrote in the order denying the motion.

The claim under the Lanham Act arises from the basic notion that the presence of the names and likenesses of the former players essentially amounts to false advertising, since the use of the players to market the NFL product can be construed by the viewer as an endorsement of the NFL product by the players. On this point, the Court found that it will be necessary to develop a full factual record in order to reach a resolution.

Finally, the league claimed that the contents of the player contracts overcome the contention that the NFL was “unjustly enriched” by the ongoing use of the likenesses. The Court found that, notwithstanding the language of the contracts -- which likely included waivers permitting the images and names to be used in NFL Films productions -- it’s possible that the league could have been unjustly enriched.