LAW OFFICES OF RON MIX Ronald J. Mix, Esq. Legal Counsel San Juan Capistrano Office: (PLEASE REPLY TO THIS OFFICE) Ron Mix Richard Taylor, Jr., Esq. 409 Camino del Rio South, Suite 101 Richard F. Taylor, Jr. Jeffrey Rhoads, Esq. Joshua Goldsmith 29122 Rancho Viejo Rd., Suite 102 San Diego, CA 92108 Jeffrey Rhoads San Juan Capistrano, CA 92602 (619) 688-9630 | fax (619) 688-9604 Hearing Representative [email protected] Darci L. Mix, J.D.

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THE SETTLEMENT OF THE IMAGE RIGHTS LITIGATION REPRESENTS AN HISTORIC OPPORTUNITY FOR A MUTUALLY BENEFICIAL RELATIONSHIP BETWEEN THE NFL AND RETIRED PLAYERS

By Ron Mix

What is the litigation about?

The “Image Rights” litigation, known as Dryer, et al, v. National Football League (which I will refer to as “the Action”), concluded with a settlement agreement that provides for the NFL to pay Fifty Million Dollars that will be used to establish two entities controlled by the retired players: (1) a Common Good Fund that will receive a little more than Five Million Dollars each year to be used to support health and welfare programs for retired players, and (2) a Licensing Agency that will permit retired players to license their group images with the assistance of the NFL. The monies derived from the licensing will be distributed on the basis of 75% to the players whose images are used and 25% to the Common Good Fund with the goal of being able to provide money for the Common Good Fund in perpetuity.

The Action arose out of retired players asserting that the NFL wrongfully used their identities after their retirement by continuing to show their images in NFL Films and other venues, thus violating their rights of publicity. The NFL, in turn, asserted that the players consented to the NFL’s use as shown, in part, by the NFL’s consistent use of NFL Game Footage for more than fifty years with the full knowledge of retired players, and that the public has a right to be informed about the history of events that were widely publicized when they happened.

The Settlement will not please everyone

I anticipate that the settlement will be greeted with both cheers and jeers by retired players. That is an easy guess because I have participated in discussions between players on both sides of the issue and discussions between legal counsel on both sides of the issue. The basic sentiment against this settlement is that Fifty Million Dollars is not enough when compared to the benefit that the NFL has received from the use of NFL Films over the past fifty years. Unfortunately for the players, should the 1

Action proceed to trial, the legal measure of damages is not the benefit to the NFL---it is the economic loss to the players.

What the heck do I know?

Before I go any further, allow me to give the readers some personal background information so that the readers may gauge whether or not this writer’s opinion is worth considering. I played 12 years in the NFL, ten years with the San Diego Chargers and two with the Oakland Raiders. I earned a law degree by attending law school at night while playing and became a licensed attorney prior to concluding my football career. My legal experience included litigation work with a firm that did sophisticated business litigation including class action litigation. The sole area of my current practice is representing retired professional athletes in claims for workers’ compensation benefits. This puts me in a constant battle with teams and the NFL. But that is another matter. I would like to think that my significant adverse relationship with the teams and the NFL and the fact that I have nothing to personally gain from the settlement of the Action allows me to be objective in analyzing the pros and cons of the settlement.

Before I address why the risks of litigation justified a settlement, I want to point out what the settlement means to retired players.

The Settlement represents a great opportunity

For the first time in history, retired players will be part of a legally recognized independent association. The word “independent” is a defining word because there must be financial independence in order for an organization to have any degree of power. The Common Good Fund and the Licensing Agency will be controlled by a Board of Directors that, in time, will be selected by retired players. We will work with the NFL to make both organizations successful.

The Licensing Agency presents the NFL and retired players with a vehicle that is designed to produce a continuing stream of income for the Common Good Fund and also a continuing stream of income for those players whose images are used. This will represent the first time in history that a concerted effort has been made to assist retired players, as a group, to earn money from their celebrity. This also represents an opportunity for the NFL to develop new income streams for itself because markets do exist for retired players, particularly in regional marketing. Most players may be forgotten entities outside of their home team areas, but they are not forgotten by the thousands of fans who rooted for their hometown favorites.

The NFL and Retired Players as partners - Nothing better than that

We, as retired players, cannot underestimate the value of having the NFL as an interested partner instead of an adverse opponent. I will share a couple of personal experiences. In order to assist Hall of Fame members who were not doing well financially, I was the founder of the Hall of Fame Players Association. Thanks to the 2

hard work of our Board of Directors, in conjunction with the NFL and the Hall, we jointly developed products and events that has resulted in no Hall Member or wife of a deceased Member having to live at a mere subsistence level. The League went far beyond our expectations in supporting the partnership goals. The Hall of Fame Foundation and the Common Good Fund are need-based. I hope to never qualify for either; in other words, I can expect no economic gain from my work with the NFL for either entity.

When the Legacy Fund materialized, I contacted Roger Goodell and asked him to support meaningful pension increases for the approximately 375 players who had made the Social Security Election (a pension provision that allowed players to receive a modest pension increase at age 45 in return to agreeing that their pensions would be lowered to $50.00 a month at age 62). Commissioner Goodell was the only person who voiced to me that there was moral and legal merit to my arguments for an increase. He took the position that the focus should not be on why the players got to this bad position, the focus should be on helping them. The point is that my experience with the League has been that when they commit to a partnership with retired players, they follow through and I expect that same conduct will take place with the Licensing Agency.

Risk of litigation far greater than you ever dreamed

The risk of continued litigation is too substantial to be ignored. First, it would be difficult to obtain certification of the class. To be certified as a class, two things must co- exist: (1) a wrongful act that is common to all members of the class; and (2) all members of the class suffer the same type of approximate damage. A classic example would be if a bank charged the exact same type of overcharge for each returned check, regardless of the individual circumstances of the check or the check-writer. In the present situation, Jim Brown and I are both in the Hall of Fame. Jim has a valuable image for which he receives compensation. He would have a valuable claim if his image were wrongfully appropriated. By supporting the settlement, Jim is giving up what could be a valuable personal claim. I have been in the Hall since 1979 and have received only the most modest earnings from the use of my image. In fairness to my self-esteem, there has never been anything like the proposed Licensing Agency, supported by the NFL, that attempted to market my image.

Another important consideration is damages. In order to certify a class, the retired players would have to convince the judge that it would be manageable to determine every single unauthorized use during the Class Period, which players in the use are entitled to recover, and in what amount. This means hundreds or thousands of appearances in every half-hour NFL Films program would have to be scrutinized to determine whether every player on the field has a claim, including whether the player can be identified, how long they are on the field, and whether they were a focus of the particular scene or a bit player. Furthermore, in this case, the retired players can only recover damages for the NFL’s unauthorized use of their images for a time period of 6 years prior to the lawsuit through the present. So the number of times any individual 3

player appeared in an unauthorized use would be limited to that period. In other words, we do not get to recover for the past fifty years the NFL has been using our identities in NFL Films.

In the case of Seymour Block v. Major League Baseball, a similar image royalties litigation, the court did not certify the class, saying that some of the proposed class were Hall of Fame players, others were virtually unknown, and that this variation and the consequent difficulty in proving claims and calculating damages for individual class members required the denial of certification. In Albert Gionfriddo v. Major League Baseball, the court held similarly, saying that not only were most former baseball players not harmed by the league’s unauthorized use of their images, but it appeared the continued use actually enhanced the players’ marketability. Most recently, a federal judge ruled that World Wrestling Entertainment was protected by the First Amendment when it used the name and likeness of former wrestler “Pretty Boy” Doug Somers. The court held that the public is entitled to be informed about the history of events that were widely publicized when they happened.

While the outcome of any litigation cannot be predicted with absolute certainty, I believe that if the action proceeded the chances are strong, no – very strong, that we would not have the class certified. That would mean that 99.5% of us would either not have a viable claim or our potential recovery would be too small to justify bringing a lawsuit. An important reason for resolving the action at this time is that if the action continued toward trial and endless appeals, it would be years before a final decision would be made. In the interim, the many retired players that would have benefited from this settlement would go wanting until their death.

The Possibility that the Common Good Fund will receive less than $42 Million

The Common Good Fund will receive $42 Million Dollars, paid in equal amounts over an eight year term. $8 Million Dollars will be used to pay attorney’s fees and to establish the Licensing Agency. The court will determine the amount to be paid to the Class Action attorneys.

The settlement agreement contains a “claw-back” provision which permits the NFL to withhold up to $13,500,000.00 from the payments from years 6, 7, and 8 to pay for the costs of defense if any Class member opts out of the Class and brings an individual suit against the NFL. Even should this occur and the League use up the entire claw-back cap, it may not have a serious impact on the Common Good Fund if we are successful in generating money with the Licensing Agency.

The First Proposed Board of Directors

Initially, there will be a seven-person Board of Directors that will jointly serve the Common Good Fund and the Licensing Agency. The proposed Board consists of Jim Brown, Irv Cross, Billy Joe Dupree, Ron Mix, Dave Robinson, Darrell Thompson, and Jack Youngblood. I can promise you this: we are committed to move cautiously and 4

deliberately in developing the business model. We intend to use the full resources of the NFL and to bring in expertise in all areas of business and marketing in an effort to make these ventures a success. Both the NFL and us are convinced that retired players represent a valuable resource that has never been fully explored, particularly on a regional marketing basis.

Review of the Merits of the Settlement

The beauty of a class settlement such as this one is that it is not up to me, nor any other individual player or attorney to decide whether it is finally approved. It is for the Court to decide whether it is reasonable, and anyone who wishes to be heard, whether in favor or in opposition, will have the opportunity.

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