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Ron Mix - Dryer Litigation Opinion Piece 3-17-13 Dryer vs NFL (Films)

Ron Mix - Dryer Litigation Opinion Piece 3-17-13 Dryer vs NFL (Films)

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Published by Robert Lee
Ron Mix - Dryer Litigation Opinion Piece 3-17-13 Dryer vs NFL (Films)
Ron Mix - Dryer Litigation Opinion Piece 3-17-13 Dryer vs NFL (Films)

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Published by: Robert Lee on Mar 20, 2013
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07/10/2013

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LAW OFFICES OF RON MIX
Ronald J. Mix, Esq.
San Juan Capistrano Office:
Richard Taylor, Jr., Esq.Jeffrey Rhoads, Esq.29122 Rancho Viejo Rd., Suite 102San Juan Capistrano, CA 92602
(PLEASE REPLY TO THIS OFFICE)
409
 
Camino
 
del
 
Rio
 
South,
 
Suite
 
101
 
San
 
Diego,
 
CA
 
92108
 
(619) 688-9630 | fax (619) 688-9604
ronmix@allsportslaw.com
 
Legal Counsel
Ron MixRichard F. Taylor, Jr.Joshua GoldsmithJeffrey Rhoads
Hearing Representative
Darci L. Mix, J.D.
Paralegal-Office Manager
 Amanda Aziz
THE SETTLEMENT OF THE IMAGE RIGHTS LITIGATION REPRESENTS ANHISTORIC OPPORTUNITY FOR A MUTUALLY BENEFICIAL RELATIONSHIPBETWEEN THE NFL AND RETIRED PLAYERSBy 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 thatprovides for the NFL to pay Fifty Million Dollars that will be used to establish twoentities controlled by the retired players: (1) a Common Good Fund that will receive alittle more than Five Million Dollars each year to be used to support health and welfareprograms for retired players, and (2) a Licensing Agency that will permit retired playersto license their group images with the assistance of the NFL. The monies derived fromthe licensing will be distributed on the basis of 75% to the players whose images areused and 25% to the Common Good Fund with the goal of being able to provide moneyfor the Common Good Fund in perpetuity.The Action arose out of retired players asserting that the NFL wrongfully usedtheir identities after their retirement by continuing to show their images in NFL Filmsand other venues, thus violating their rights of publicity. The NFL, in turn, asserted thatthe players consented to the NFL’s use as shown, in part, by the NFL’s consistent use ofNFL 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 werewidely publicized when they happened.
The Settlement will not please everyone
I anticipate that the settlement will be greeted with both cheers and jeers byretired players. That is an easy guess because I have participated in discussionsbetween players on both sides of the issue and discussions between legal counsel onboth sides of the issue. The basic sentiment against this settlement is that Fifty MillionDollars is not enough when compared to the benefit that the NFL has received from theuse of NFL Films over the past fifty years. Unfortunately for the players, should the
 
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Action proceed to trial, the legal measure of damages is not the benefit to the NFL---it isthe economic loss to the players.
What the heck do I know?
Before I go any further, allow me to give the readers some personal backgroundinformation so that the readers may gauge whether or not this writer’s opinion is worthconsidering. I played 12 years in the NFL, ten years with the San Diego Chargers andtwo with the Oakland Raiders. I earned a law degree by attending law school at nightwhile playing and became a licensed attorney prior to concluding my football career.My legal experience included litigation work with a firm that did sophisticated businesslitigation including class action litigation. The sole area of my current practice isrepresenting 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. Iwould like to think that my significant adverse relationship with the teams and the NFLand the fact that I have nothing to personally gain from the settlement of the Actionallows 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 pointout 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 recognizedindependent association. The word “independent” is a defining word because theremust be financial independence in order for an organization to have any degree ofpower. The Common Good Fund and the Licensing Agency will be controlled by aBoard of Directors that, in time, will be selected by retired players. We will work withthe NFL to make both organizations successful.The Licensing Agency presents the NFL and retired players with a vehicle that isdesigned to produce a continuing stream of income for the Common Good Fund andalso a continuing stream of income for those players whose images are used. This willrepresent the first time in history that a concerted effort has been made to assist retiredplayers, as a group, to earn money from their celebrity. This also represents anopportunity for the NFL to develop new income streams for itself because markets doexist for retired players, particularly in regional marketing. Most players may beforgotten entities outside of their home team areas, but they are not forgotten by thethousands 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 aninterested partner instead of an adverse opponent. I will share a couple of personalexperiences. In order to assist Hall of Fame members who were not doing wellfinancially, I was the founder of the Hall of Fame Players Association. Thanks to the
 
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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 adeceased Member having to live at a mere subsistence level. The League went farbeyond our expectations in supporting the partnership goals. The Hall of FameFoundation and the Common Good Fund are need-based. I hope to never qualify foreither; in other words, I can expect no economic gain from my work with the NFL foreither entity.When the Legacy Fund materialized, I contacted Roger Goodell and asked him tosupport meaningful pension increases for the approximately 375 players who had madethe Social Security Election (a pension provision that allowed players to receive amodest pension increase at age 45 in return to agreeing that their pensions would belowered to $50.00 a month at age 62). Commissioner Goodell was the only person whovoiced to me that there was moral and legal merit to my arguments for an increase. Hetook the position that the focus should not be on why the players got to this badposition, the focus should be on helping them. The point is that my experience with theLeague has been that when they commit to a partnership with retired players, theyfollow through and I expect that same conduct will take place with the LicensingAgency.
 Risk of litigation far greater than you ever dreamed 
The risk of continued litigation is too substantial to be ignored. First, it would bedifficult 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 membersof the class suffer the same type of approximate damage. A classic example would be ifa bank charged the exact same type of overcharge for each returned check, regardless ofthe 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 hereceives compensation. He would have a valuable claim if his image were wrongfullyappropriated. By supporting the settlement, Jim is giving up what could be a valuablepersonal claim. I have been in the Hall since 1979 and have received only the mostmodest earnings from the use of my image. In fairness to my self-esteem, there hasnever been anything like the proposed Licensing Agency, supported by the NFL, thatattempted to market my image.Another important consideration is damages. In order to certify a class, theretired players would have to convince the judge that it would be manageable todetermine every single unauthorized use during the Class Period, which players in theuse are entitled to recover, and in what amount. This means hundreds or thousands ofappearances in every half-hour NFL Films program would have to be scrutinized todetermine whether every player on the field has a claim, including whether the playercan be identified, how long they are on the field, and whether they were a focus of theparticular scene or a bit player. Furthermore, in this case, the retired players can onlyrecover damages for the NFL’s unauthorized use of their images for a time period of 6years prior to the lawsuit through the present. So the number of times any individual

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