Minnesota super lawyer Michael Ciresi successfully took on Big Tobacco and is now looking to slay another giant: the National Football League.
In a case that could affect every former NFL player from Brett Favre to Carl Eller, Ciresi has entered a complicated legal fight to reject a $50 million proposed settlement over the NFL’s longtime commercial use of player names and images without compensation to those players. Part of the fight has centered on NFL Films, which owns more than 100 million feet of game film featuring grainy images of the league’s most iconic players and memorable games such as the 1967 “Ice Bowl” at Green Bay’s Lambeau Field.
While a federal judge has tentatively endorsed the settlement — and the NFL and a number of legendary players such as running back Jim Brown have agreed to help implement it — some former players are arguing that the $9.5 billion-a-year professional football industry should pay more. The lawsuit’s six original plaintiffs, including former Minnesota Vikings Jim Marshall, Joe Senser and Ed White, are following Ciresi, a former U.S. Senate candidate from Minnesota who was a lead counsel in the tobacco industry’s landmark $6 billion settlement in the late 1990s with the state of Minnesota and a major insurance company.
“Much of what [we have] talked about today — about the difficulty of succeeding, about the NFL isn’t going to pay any more -- [was] true of the tobacco industry,” Ciresi told a conference of former players in Las Vegas in May. The tobacco industry “offered us $4 billion to settle, and we turned it down,” he added.
But others involved in the case, which has a number of Minnesotans playing key roles, said the settlement is fair and would push the NFL to help former players now struggling with their personal lives.
The proposed settlement has two goals. One would funnel $42 million to a special panel of retired players, who would in turn give the money to groups that would help players with everything from medical screening and career transition advice to housing and health and dental coverage.
Sitting in the downtown Minneapolis office of his lawyer, former NFL player Irv Cross began crying as he described the now-destitute former players that the settlement would aid. “I get emotionally tied up in this thing,” said Cross, who retired in 1969 after playing for the Los Angeles Rams and Philadelphia Eagles. He was a longtime a co-anchor for CBS’ “NFL Today” show and the athletic director at Macalester College in St. Paul.
The settlement’s second goal would have the NFL help create and promote licensing agreements for former players — a move that could help market throwback jerseys with the players’ names on them. As part of the settlement, the NFL has agreed to help promote apparel for at least 100 retired players. In addition, if an advertiser used game footage that had 20 identifiable players, all of them under the settlement would split the money.
“Some of the most important and most famous people in all of football on the retired players’ side are supporting it,” said Bucky Zimmerman, a Minneapolis lawyer who is opposing Ciresi in the case. “Jim Brown is, like, our lead guy [and] you can’t get any better than that.”
Some former players, however, complain that none of the money would go directly to the players and that the $50 million — although a large sum — pales in comparison with the revenue the NFL is now generating. The league’s $9.5 billion in current revenues is more than double the $4.3 billion the NFL generated in 2000.
Taking on a giant
The NFL and many players are trying to build momentum for accepting the proposed settlement by arguing that Ciresi faces several daunting legal obstacles if he proceeds and that the settlement being offered was crafted with the help of a chief federal magistrate in Minneapolis who also successfully brought about a contract between the NFL and its players union. In addition each former player who chooses to continue the fight — the league has 20,000 former players — may mean less money for the settlement because the NFL can divert up to $13.5 million of the settlement money to help fight any related legal claims.
Even if some former players continue the court fight, a judge has already indicated that claims over the NFL’s use of their likeness can go back only to 2003.
The NFL said that it, too, compromised to help reach a settlement and that relatively few former players will likely choose to continue the legal fight. “Everybody wins” with the proposed settlement, said Gary Gertzog, the NFL’s senior vice president for business and legal affairs.
Gertzog also said the former players for years knew what NFL Films and the league were doing with their likenesses but only became concerned when “someone knocked on their door in 2009” to tell them of the lawsuit. “There’s a small group, in particular, [that] I think are quite vocal,” he said.
“Certainly, from what we’re hearing, players are very enthusiastic about this settlement,” Gertzog added.
In a legal memorandum in April, U.S. District Judge Paul Magnuson in Minnesota in fact castigated the six original former players who brought the lawsuit against the NFL in 2009 for abandoning their original goal of saving “their downtrodden brethren, those who had played in the NFL yet today were penniless.” The former players who want to press their claim, the judge said, “now complain, like children denied dessert” that the settlement is not enough.
Cross, who will serve on a panel with former University of Minnesota and Green Bay Packers star Darrell Thompson to help distribute the settlement money, denies accusations that have circulated that he is selling out his colleagues by accepting the proposal. “No, we’re not selling out. We’re giving ourselves to those guys who need it,” said Cross, who spoke as he sat next to Thompson. “You would sell out if you walked away” and did not accept the settlement.
Added Thompson: “I don’t think anyone would call Jim Brown a ‘sellout’ — not to his face.”
But former players opposing the settlement argue that accepting it means that they would forever be giving up their right to be compensated every time the NFL uses their image.
“I’m going to give it up to a bunch of billionaire NFL owners for nothing?” said Ron Pritchard, a nine-year player for Houston and Cincinnati. “That’s not even American.” Pritchard said he intends to opt out of the settlement — all former players this summer will be asked to formally endorse or reject the proposal — and pursue his own legal claim against the NFL.
Like others, Pritchard also said that the NFL’s ability to deduct legal fees from the settlement should be a reason to reject it — not a reason to accept it.
“There is a punitive spirit that’s in this document,” Fred Dryer, the original lead plaintiff, told a roomful of former NFL players at a conference in Las Vegas in May. Dryer, whom Ciresi is now representing, played for the New York Giants and the Los Angeles Rams before becoming a successful television actor.
Value of film unknown
Much of what Ciresi and his clients want to do is focus on the real value of NFL Films, which they claim may be worth hundreds of millions of dollars and whose images of former players the NFL regularly uses to promote itself. The film catalog — which NFL Films touts as the world’s largest sports film library — features narrators such as actors Burt Lancaster and Orson Wells, has sound of football legend Red Grange dating back to 1925 and has produced videos that have more than 100 Emmy Awards.
The film library includes footage of more than 9,000 games and of more than 500 coaches and players who wore microphones during a game.
One film clip shows the infamous “wrong-way” touchdown run in 1964 by Marshall, the former Vikings standout. Marshall said the proposed settlement would amount to $22 a month for each player. “If you don’t stand up and fight for it, what’s left?” he said in explaining why he wants to proceed. If “you just go along with whatever they want to give you, [you] feel less than human.”
Zimmerman and others pushing the settlement, however, said the value of NFL Films was disclosed privately to the plaintiffs, and that sifting through hundreds of hours of film to find how often a particular player was featured — most players were, in fact, not stars — would be a monumental undertaking. Ron Mix, an attorney and Pro Football Hall of Fame member, said the task would involve finding plaintiffs who “showed up only as bit players” on film and then trying to determine “how long they were on the field.”
“To me, there’s a major risk that if this moves forward [you] could get nothing — absolutely nothing,” Mix told the crowd in Las Vegas. “Could you have held out for more? [I] don’t think so.”
But Ciresi said the legal fight goes to the heart of what built the NFL. “This game is about the players — that’s what it’s about. It was built on their backs, their blood, their sweat, their creativity, their athleticism, their grace, their brute strength — all of that,” he said.