Class Action PotentialClass Action Potential

Independent Retired Players Independent Retired Players SummitSummit

May 30, 2009May 30, 2009Shawn D. Stuckey – Class Action AttorneyShawn D. Stuckey – Class Action Attorney

Reason for Player AdvocacyReason for Player Advocacy

““The NFL Players Association’s legal The NFL Players Association’s legal department will help me! I called department will help me! I called and called and called – no answer. I and called and called – no answer. I left messages with every single left messages with every single attorney and spoke with whomever attorney and spoke with whomever would speak with me in the office - would speak with me in the office - no one stepped forward….”no one stepped forward….”

Introduction to FrameworkIntroduction to Framework

Goals:Goals: Provide the legal and procedural Provide the legal and procedural

framework for establishing a class framework for establishing a class action so that members can action so that members can understand if they have a potential understand if they have a potential viable actionviable action

Brief discussion of the recent Brief discussion of the recent licensing class actionlicensing class action

What is a class Action?What is a class Action?

A class action is a representative suit A class action is a representative suit on behalf of a group of persons (or on behalf of a group of persons (or entities) similarly situated. entities) similarly situated.

One or more representatives of the One or more representatives of the harmed group go to court on behalf harmed group go to court on behalf of everyone else who was similarly of everyone else who was similarly affected. affected.

Purpose of a Class ActionPurpose of a Class Action

JJudicial economy and efficiencyudicial economy and efficiency Class actions have allowed Class actions have allowed

individuals to stand up against the individuals to stand up against the most powerful industries in the world most powerful industries in the world and to hold them accountable for and to hold them accountable for their actions. their actions.

Four Major Types of Class ActionsFour Major Types of Class Actions

Consumer Class ActionsConsumer Class Actions –E.g., price-fixing –E.g., price-fixing a product or illegal charges on bills;a product or illegal charges on bills;

Product liability/Personal Injury Class Product liability/Personal Injury Class ActionsActions – E.g., defective products, Drugs – E.g., defective products, Drugs with harmful side effects that may have with harmful side effects that may have been prescribed by an football team’s been prescribed by an football team’s doctor;doctor;

Securities Class ActionsSecurities Class Actions Employment Class ActionsEmployment Class Actions – violations of – violations of

the Labor Code. the Labor Code.

Class Action RequirementsClass Action Requirements

Numerosity – “Numbers”Numerosity – “Numbers”: large number of : large number of people affected; people affected;

Commonality or “Common claims”Commonality or “Common claims”: plaintiffs in : plaintiffs in the case must have similar claims against the the case must have similar claims against the defendants.defendants.

Typicality or “Typical class”Typicality or “Typical class”: the : the representatives must have the same claims and representatives must have the same claims and defenses as those they are representing. defenses as those they are representing.

Fair and adequate representationFair and adequate representation: The : The representative plaintiffs and the class lawyers representative plaintiffs and the class lawyers must be good caretaker for the group’s claims.must be good caretaker for the group’s claims.

Class CertificationClass Certification Class certification is a Class certification is a procedural deviceprocedural device by which the by which the

court allows a few designated appointees to court allows a few designated appointees to represent the other members of the class. represent the other members of the class.

E.g.: If the above-mentioned criteria are met and all E.g.: If the above-mentioned criteria are met and all the class wants is an order telling the defendant(s) to the class wants is an order telling the defendant(s) to stop doing something (e.g. to discontinue the “head stop doing something (e.g. to discontinue the “head slap” in football or discontinue “the wedge” in special slap” in football or discontinue “the wedge” in special teams), a judge will usually agree to “certify” the teams), a judge will usually agree to “certify” the class. class.

Mass tort cases, in which a lot of people have been Mass tort cases, in which a lot of people have been physically injured in a disaster or by a dangerous physically injured in a disaster or by a dangerous product, are often denied class action status because product, are often denied class action status because the causes and extent of individual injuries vary so the causes and extent of individual injuries vary so much from person to person. much from person to person.

Recent Class Action Against Recent Class Action Against NFLPANFLPA

Based on allegations that the union breached a Based on allegations that the union breached a fiduciary duty to market the likenesses and names fiduciary duty to market the likenesses and names of retired players. of retired players.

The theory of liability: the union persuaded the The theory of liability: the union persuaded the retired players to assign the right to market their retired players to assign the right to market their likenesses and names to the NFLPA — and that the likenesses and names to the NFLPA — and that the NFLPA then did nothing at all to market the players’ NFLPA then did nothing at all to market the players’ likenesses and names.likenesses and names.

The court found that the NFLPA did this merely to The court found that the NFLPA did this merely to prevent some other organization (or the players prevent some other organization (or the players themselves) from gathering the marketing rights to themselves) from gathering the marketing rights to the likenesses and names on a mass basis, and the likenesses and names on a mass basis, and actually marketing the likenesses and names. actually marketing the likenesses and names. 

Recent Class Action Against Recent Class Action Against NFLPA – (Cont.)NFLPA – (Cont.)

––the NFLPA owes a fiduciary duty to the the NFLPA owes a fiduciary duty to the players. players.

As Mike Florio of Profootball.com wrote: As Mike Florio of Profootball.com wrote: ““If true (and the jury found that it is), it’s If true (and the jury found that it is), it’s

shameful, and despicable.  The jury essentially shameful, and despicable.  The jury essentially found that, under the guise of found that, under the guise of helpinghelping retired retired players, the NFLPA screwed them, making no players, the NFLPA screwed them, making no effort to market the rights to their likenesses and effort to market the rights to their likenesses and names in order to preserve the millions and names in order to preserve the millions and millions that were being generated by the millions that were being generated by the marketing of the rights to the likenesses and marketing of the rights to the likenesses and names of active players.”names of active players.”