June 20 2012 Letter from Retired Football Players to AFL-CIO

202.540.7200 ph 202.540.7201 fax 1700 K Street, NW Suite 650 Washington, DC 20006

Michael D. Hausfeld [email protected] June 20, 2012 VIA ELECTRONIC MAIL Richard L. Trumka President AFL-CIO 815 16th St. N.W. Washington, D.C. 20006 Re: Request to Expel the NFL Players Association from the AFL-CIO Dear Mr. Trumka:

On behalf of the undersigned, and all other retired players of the National Football

League (“NFL” or “League”) whom they represent, we request the AFL-CIO initiate

proceedings to expel the NFL Players Association (“NFLPA”) from the AFL-CIO for its moral

failures and conduct unbecoming a union.

The NFLPA, through its Executive Director, DeMaurice Smith, publicly stated that as an

association and a union it has “a moral obligation to … retired players.” That “obligation,” he

said, “has to be in both words and deeds. If you fail in either one, you fail.”1 The NFLPA has

consistently failed in both.

There is a large gap in the acknowledged needs of NFL retirees and their benefits under

the NFL Retirement System (“System”). The spectrum of deficiencies and flaws ranges from

1 David Elfin, Smith’s Business is Keeping Busy, WASHINGTON TIMES, April 6, 2009.

Richard L. Trumka 6/20/2012

inadequate pensions (i.e. a pension benefit of only $250, per credited season for pre-1982

retirees), to disability programs which, either by design or operation, deny the very relief to the

retirees which the programs were professed to confer, to the absence of a comprehensive

approach to monitor, detect, treat and care for retirees suffering the consequences of head trauma

related brain injuries.

For example, in the hearings before the Commercial and Administrative Law

Subcommittee of the Committee on the Judiciary of the U.S. House of Representatives on June

26, 2007, Subcommittee Chairwoman, Representative Linda Sanchez stated that based on the

stories relayed by retirees, the “evidence suggests that the vast majority of former players

needing benefits do not receive them.”2 At the same hearing, Judiciary Chairman, Representative

John Conyers remarked that:

The NFL’s treatment of its retired players with respect to disability and pension benefits is problematic. As many of us know, the average football athlete is not a marquee player but plays in the League for less than 4 years and often retires because of injury. Upon retirement, he receives only $14,500 in pension benefits, less than half the amount received by an average retired Major League baseball player.3

On April 8, 2008, the Congressional Research Service issued a report on “Former NFL Players: Disabilities, Benefits and Related Issues.” It concluded:

Although the number and type of benefits have grown over the years, older retirees, particularly those who played prior to 1982, have fewer benefits available to them than

2 Linda Sanchez, Opening Statement, Commercial and Administrative Law Subcommittee of the Committee on the Judiciary of the U.S. House of Representatives, “Legal Issues Relating to Football Head Injuries,” June 26, 2007, at pg. 2. 3 John Conyers, Opening Statements, Committee on the Judiciary of the U.S. House of Representatives, Hearings on “Legal Issues Relating to Football Head Injuries,” October 28, 2009, at pg 3 (“Conyers Opening Statements”).


their successors have. Yet, this subset of former players might have the greatest financial and medical needs.4

The shortfalls and inadequacies in the System were, in material part, the result of the

NFLPA sacrificing and subordinating the interests and needs of the retirees to the benefit of the

NFLPA’s member active players.5 This pattern was most recently and vividly repeated in the

collapse of the federal mediation negotiations seeking a new collective bargaining agreement

(“CBA”) for 2011 and beyond.

On March 11, 2011 federal mediator, George H. Cohen declared an impasse in the

negotiations between the NFLPA and the NFL as to a new CBA. In the process, both accused the

other of acting in bad faith.

On the same day, the NFLPA sent a letter to all NFL Club Presidents and General

Managers, informing them that it had “renounced its status as collective bargaining agent for all

NFL players.” Consequently, it was asserted that no NFLPA representative “has the authority or

authorization to engage in any collective bargaining discussions, grievance processing or any

other activities associated with collective bargaining on behalf of players at either the club or the

League level.”

Thereafter, the NFLPA amended its bylaws to prohibit it or its members from engaging

in collective bargaining with the NFL, the NFL’s member clubs or their agents. The NFLPA

filed a labor organization termination notice with the Department of Labor and applied to the

Internal Revenue Service to reclassify itself for tax purposes as a professional association rather

4 Congressional Research Service, “Former NFL Players: Disabilities, Benefits and Related Issues,” April 8, 2008. 5 This trade-off has been a hallmark of treatment of retirees by the Union. In 2007 former NFLPA Executive Director, Eugene Upshaw publically stated: “[t]he bottom line is, I don't work for them [retired NFL players]. They don't hire me, and they can't fire me. They can complain about me all day long. They can have their opinion. But the active players have the vote. That's who pays my salary.”


than a labor organization. As a matter of law, the NFLPA undertook all visible steps to

voluntarily and affirmatively relinquish all protections of federal labor law.

The NFL responded by sending a letter to the NFLPA announcing it would lockout all

players, free agents and rookies as of March 12, 2011.

On March 11, 2011, a number of active players, free agents and rookies filed a class

action lawsuit in the United States District Court for the District of Minnesota against the NFL

and its member clubs alleging, among other matters, various violations of the federal antitrust

laws. Brady v. Nat’l Football League, Civ. No. 11-cv-00639 (SRN/JJG) (D. Minn.) (“Brady”). In

their complaint, the Brady Plaintiffs sought representative class status for each of the three types

of active players (rookies, free agents and active players under contract). On information and

belief, the Brady litigation, at all relevant times, was controlled and subsidized by the NFLPA.

On March 28, 2011, former player and Hall of Famer Carl Eller and certain other retired

professional football players filed an antitrust complaint on behalf of themselves and a class of

retired NFL players against the NFL and its member clubs. Eller v. Nat’l Football League, Civ.

No. 11-cv-00748 (SRN/JJG) (D. Minn) (“Eller I”).

The district court consolidated the Eller I and Brady cases and on April 11, 2011, ordered

all parties – active players and retirees – to mediation. By agreement, Counsel for the class of

retired players were to represent all interests of retirees. Counsel for the active players were to

“cover the economic system issues” for the three classes of active players.

Despite this division and the fact that the NFLPA was not a union, it engaged in

unauthorized collective bargaining with the NFL to reach an agreement on July 19, 2011 which


not only sought to resolve antitrust issues for the Brady plaintiff classes, but also established the

framework and terms of an overall bargaining agreement. Additionally, the Brady plaintiffs

agreed to fix, for a period of ten years, certain limited rights and benefits for retirees. The

settlement with the Brady plaintiffs was then carried over into a new CBA. Like prior CBAs,

however, it provided that retired NFL players were not part of the CBA.

In settling the Brady litigation, the NFLPA engaged in unauthorized collective bargaining

when it was not a union. By doing so, it placed itself in a position in which it knew or should

have known it “bore a duty to the active players that was unavoidably in conflict with the

interests of the retired players” and that interference with retired players’ interests was “certain

or substantially certain to occur. . . .”6 The interference caused material harm to the retirees.

After union decertification, the League wrote on April 4, 2011, to all retirees

acknowledging that it “understood the challenges former players and their families face.” It

advised the retirees that the League was prepared to provide "important improvements in retired

players benefits…” and was committed to assuring that it better addressed “the needs of our

retirees….” The League admitted that doing so would be the “fair” and “right thing” to do. The

League represented that the necessary repairs to the System would result in a “measurable impact

on the people who made football great.”7

Deficiencies, necessary modifications and additions to the benefits accorded to NFL

retirees were identified by them in negotiations with the NFL. Extensive research was conducted

6 Order, Judge Susan Nelson Granting Defendants’ Motion to Dismiss, Eller v. Nat’l Football League Players Ass’n, Civ. No. 11-cv-02623 (DSD/FLN) (D. Minn.) (“Eller II”), Docket No. 73, May 29, 2012. 7 Letter from Jerry Richardson and Mark Murphy to Retired Players, April 4, 2011.


by them to create a new framework which would have provided the “measurable impact”

acknowledged by the League. See Appendix A. Those needed changes were abruptly

abandoned by the decertified Union’s agreement to settle the Brady litigation under terms which

short changed retiree needs. In contrast to the work undertaken by the retirees, the NFLPA did

no independent surveys, evaluations or assessments of the economic or health needs of the

retirees in negotiating and fixing new contractual retirement benefits. The limited retiree

improvements the NFLPA signed for in the Brady agreement were far less than the overhaul

discussed by the retirees with the League.

Most tragically8, the NFLPA failed or declined to advocate or include identified

programs and benefits for former players with brain injuries that it knew or should have known

were necessary to aid what the retirees’ experts identified as a population at risk. Despite its

confessed knowledge about the deleterious consequences to the “health and safety” of former

players resulting from brain injury, the NFLPA did not negotiate for nor agree to a

comprehensive program that would have addressed the full implications of this “life and death"9

issue.

Beginning on October 28, 2009 and continuing on January 4, 2010, the Committee on the

Judiciary of the U.S. House of Representatives held hearings on the “Legal Issues Relating to

Football Head Injuries.” In opening remarks, the Committee Chairman, the Honorable John

Conyers stated:

8 How many lives would have changed or could have been saved if appropriate programs had been put in operation years ago? 9 Conyers Opening Statements at pg 3.


Over the past several years, an increasing number of retired players have developed long-term memory and cognitive diseases such as dementia, Alzheimer’s, depression, and chronic traumatic encephalopathy (CTE). And it comes much later than after their careers end. As a matter of fact, sometimes it is not even detected until the autopsies, after they are dead. These are not the types of risks most players or their families ordinarily associate with the game of football.10

The NFL told the Committee that issues related to brain injury were the “subject for

collective bargaining.” The Chairman replied that he did “not believe it is adequate for the

League or the Players Association to hide behind a collective bargaining agreement.” The

NFLPA agreed. It emphasized that these matters are “not and will never be a Collective

Bargaining issue.”11

The Committee sought answers as to “[w]hat can be done” to detect, prevent, treat and

care for players subject to or damaged by reason of such injuries.

The NFLPA testified that its “number one priority is to protect those who play and have

played this game. There is no interest greater than their health and safety….” The NFLPA

stated that it understood that “[t]raumatic brain injuries represent one of the most severe injuries

known to affect football players. Furthermore, the long-lasting effects of these injuries can be

devastating.” While commending the Committee for “consistently bringing the issue of

concussions, brain trauma, health and safety in the sport of football to the forefront,” the Union

acknowledged however, that it was “unfortunate” that it took Congressional pressure to force

action for such a critical issue….” As to its own responsibility, the Union admitted that, “For far

too long, our former players were left adrift” and that the Union had “not done its best … for it’s

10 Id. 11 DeMaurice Smith, Committee on the Judiciary of the U.S. House of Representatives, Hearings on “Legal Issues Relating to Football Head Injuries,” Prepared Statement, October 28, 2009, at pg. 2-3.


retirees.” It confessed that it was “complicit in the lack of leadership and accountability” on this

issue. That complicity “ends now,” it pledged.

At the renewed hearings in 2010, the NFLPA reiterated that both the NFL and the

NFLPA and its current player members, “owed an obligation” to those who played the game to

no longer “denigrate,” “suppress” or “ignore” the medical findings on this issue. It promised to

move with “speed” to do “much more” to bring “to an end” the failure to provide responsible

detection, treatment and care to former players for not only “dementia,” but also for a wider

array of mental and psychologically debilitating conditions such as traumatic brain injury, severe

depression and other neurological diseases.” The Union affirmed its “unwavering”

“commitment” to “craft a roadmap” of “measures” to “prevent, treat and manage the long-lasting

effects of these injuries.”

“To men like John Mackey and Brent Boyd and [the] families of Mike Webster and

Andre Waters,” the Union declared “We will not fail them….” in this “mission.”12

Fail them is precisely what they did in both “word and deed.”

The objects and principles of the AFL-CIO Constitution as well as its Mission and Vision

are to be inclusive and to improve the “welfare” of workers of all ages, former and current. The

NFLPA has disregarded and interfered with the rights and needs of its retired members at a time

when their issues are of paramount importance. Its moral failures disgrace the principles and

foundations of a union organization. The rights, interests and needs of active employees and

retirees must be mutually respected. This does not in any way diminish the responsibilities of a

12 Id. at pg. 1.


union to the imperatives of terms and conditions of employment. That respect, however,

mandates that the self-interest of one should not be used to sell-out the needs of the other.

As eloquently written in the International Business Times,

More and more evidence is linking concussion blows with depression and health problems after [football] players retire. Studies have shown that the equipment worn in the NFL is woefully inadequate to protect the head, yet the issue isn’t resolved with the same gusto as a contract that looks a little light in guaranteed money. During the lockout last season, one of the real losers of the new collective bargaining agreement were ex-players, who arguably needed union help more than the players of today. It won’t surprise or shock anyone for me to conclude by saying that it’s a sad indicator that one of the strongest and most powerful unions in America is driven by pure greed and the accumulation of money, but what really bothers me is the lack of critical media and public reaction to the greed. The apathy of the man on the street towards the rights of spoiled millionaires is quite baffling to anyone on this side of the Atlantic Ocean.13 (Emphasis added). For all of the above reasons, the retired players respectfully request that proceedings be

initiated to expel the NFLPA from the AFL-CIO. In the alternative, the AFL-CIO should take

other appropriate remedial measures against the NFLPA, such as removal of its officers or other

disciplinary actions. The retirees are prepared to assist in any manner, formally or informally, by

being witnesses or providing documentation.

We appreciate your prompt attention to this matter and await your reply.

Very truly yours, Michael D. Hausfeld On behalf of Retired NFL Players:

13 Robbie Fergusson, NFLPA Union Makes Baffling Decisions, INTERNATIONAL BUSINESS TIMES, June 17, 2012, available at http://www.ibtimes.com/sportsnet/nfl/nflpa-union-power_263.htm.


Joe Delamielleure Billy Joe Dupree Paul Krause Ken Stabler Lem Barney Roman Gabriel Bruce Laird George Visger John Hannah Tommy Nobis Elvin Bethea Fred Smerlas Ron Yary Art Still Conrad Dobler Myron Pottios John Riggins Irv Cross Al “Bubba” Baker Lou Piccone14 Reggie McKenzie

14 Further names can be provided if requested.

June 20 2012 Letter from Retired Football Players to AFL-CIO

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