All Show Business was Not Created Equal
08.16.13
Fred Dryer wants to know why one former employer still pays him when they profit from showing his image, but another employer doesn’t have to pay. After retiring from the NFL in 1981, Dryer, along with Stepfanie Kramer went on to star in the TV cop show Hunter for 8 seasons. Since then, the show has been in syndication and Dryer receives residuals when the show is aired. On the other hand, Dryer receives no compensation from the NFL when 1970’s Rams footage is shown on television or used for marketing although he was a significant part of that “show.” Several troubling outcomes of what has become a legal battle for image rights for players who retired or were cut prior to 2011 against their former clubs have shed light on how NFL team owners might approach a settlement to the concussion litigation.
The original six plaintiffs – Fred Dryer, Elvin Bethea, Jim Marshall, Dan Pastorini, Joe Senser, and Ed White have all opposed the settlement offer, but somehow that doesn’t matter. The NFL proposed a settlement in the spring of 2013 to the Dryer, et al vs. NFL publicity rights lawsuit that would put $50 million, minus an estimated $8 million in legal fees, into a fund for retired players. Settlement money would be paid out over eight years and it would go to approved charities that support initiatives for retired players. It would also create a licensing agency for retired players that would, ideally, generate additional revenue for the fund. According to the settlement website, https://nflretireepublicitysettlement.com/, “on March 18, 2013, the parties entered into an agreement to settle the lawsuit.” Even though the original six plaintiffs opposed the settlement negotiated on their behalf, the presiding judge, Paul Magnuson still granted preliminary approval of the proposed settlement. Judge Magnuson added some additional unfortunate remarks:
“It bears repeating: the individuals who originally brought this lawsuit and who now oppose the settlement rode into court on the banner of saving their downtrodden brethren, those who had played in the N.F.L. yet today were penniless and, often, suffering from injuries or illnesses directly related to their playing days,” Magnuson wrote when approving the settlement in April. “It is the height of disingenuousness for these same plaintiffs to now complain, like children denied dessert, that the settlement does not benefit enough the individuals who brought the lawsuit.”
The plaintiffs disagree that they ever asked for money to be paid to themselves. According to the website, http://www.dryervnfl.com/, they just don’t like the math of the settlement. And that’s understandable. $42 million dollars of charitable contributions paid out to several different organizations over 8 years is a little more than $5 million dollars per year. It would then be up to each charity to figure out how to distribute some portion of that money to the intended recipients (likely after administrative costs). With more than 20,000 former NFL players (according to a recent NY Times article) if every eligible player applied to a charity for benefit that would amount to about $20 per month. Of course not every player’s going to seek to recoup their publicity rights money by applying for help from a charity, but regardless, with the number of beneficiaries involved the settlement amount spread over 8 years and first distributed to charities for them to somehow later distribute to players seems to be of little consequence to any particular retired player. The settlement offer is probably good for the few charities who would get an annual cash infusion, and likely a good payday the few attorneys involved, but negligible and for most, probably never-collected compensation for the 20,000 plus plaintiffs. And the 32 team owners? At $5 million per year for the entire NFL, each owner’s share would be an annual $150k tax-deductible contribution to charity. Not too big of an impact to each team’s $1 billion in operating income.
If this type of settlement negotiation is successful – the NFL announces a a large number, gets opposing counsel paid, spreads the amount over a number of years, then filters it through charities of their choosing, we could be getting a preview of how they’ll approach settling the concussion lawsuits. The owners should be very happy if the publicity rights settlement gets approved – they win again.
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