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NFL, Former Players Seek Court Approval Of Settlement in Right of Publicity Dispute

Friday, March 22, 2013
By Tamlin H. Bason

A group of retired professional football players sought court approval of a settlement agreement addressing the players' right of publicity claims against the National Football League, according to a motion filed on March 18 in the U.S. District Court for the District of Minnesota. (Dryer v. National Football League, D. Minn., No. 09-02182, motion for approval filed 3/18/13).

Under the agreement, the NFL would pay a total of $50 million to settle the claims, $42 million of which “will be paid over eight years into a Common Good Fund for the benefit of Retired Players, subject to the terms of the Settlement Agreement,” the motion said. The remaining $8 million would be placed in an escrow account for the payment of costs and attorneys' fees.

In addition to a common fund, the settlement would also establish a licensing agency tasked solely with helping retired players license their publicity rights.

Former Players Challenge League's Use of Their Images
In 2009, a number of former NFL players--including former defensive end John Frederick Dryer and Hall-of-Famers James Nathaniel Brown and Mike Ditka--filed claims alleging that the league was engaging in commercial misappropriation of their identities. Specifically, they alleged that the use of their “names, images, symbols, and likenesses, to promote the NFL, sell NFL-related products, and otherwise generate revenue for the NFL” violated their rights under state publicity rights law and the Lanham Trademark Act of 1946.

The complaint alleged that the league continued to use the retired players' identifies to “trade[] on the 'glory days' of the NFL as a marketing and advertising technique to convey authenticity, enhance the NFL's brand awareness and increase its revenue” through the sale of promotional videos and other products.

The complaint contrasted this stream of revenue seen by the NFL with the much-publicized physical and mental suffering that NFL players often face upon retirement.

Settlement Would Create Licensing Agency
The bulk of the settlement money would be used to establish a fund, which, according to the motion, would be administered by an entity known as the Common Good Entity.

“The Common Good Entity will be a not-for-profit entity governed by its own Board of Directors and will be independent of the NFL and the” NFL players' association, the motion said. The fund is to be used

for the benefit of Retired Players or other similarly situated individuals to third-party organizations only for the Fund Charitable Uses, which include (1) medical research; (2) short-term and long-term housing; (3) health and dental insurance coverage; (4) medical screening and evaluations; (5) mental health programs; (6) wellness programs; (7) career transition programs, including employment training and support; (8) any medical costs not covered under a health insurance policy or plan, under the terms of the Settlement Agreement; and (9) other uses as agreed to by the Board of Directors of the Common Good Entity, Plaintiffs' Lead Settlement Counsel and the NFL under the terms of the Settlement Agreement.

The agreement would also require the NFL to “provide money to establish and support the initial operations of the Licensing Agency,” according to the motion. The licensing agency, in turn, would at first be tasked with helping the class members determine how best to monetize their publicity rights. However, “Individual Retired Players may also choose to authorize the Licensing Agency to license their individual Publicity Rights on their behalf,” the motion said.

A hearing on the motion has been scheduled for March 22.

The players were represented by Daniel E. Gustafson of Gustafson Gluek, Minneapolis. The NFL was represented by Michael Schaper of Debevoise & Plimpton, New York.

By Tamlin H. Bason


Text of amended complaint is available at http://www.bloomberglaw.com/public/document/Dryer_et_al_v_National_Football_League_Docket_No_009cv02182_D_Min.

Text of motion for approval is available at http://www.bloomberglaw.com/public/document/Dryer_et_al_v_National_Football_League_Docket_No_009cv02182_D_Min/1.

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