NFL Retirees Sue Active Players,|Want Out of Deal with the League

MINNEAPOLIS (CN) - The fight over NFL benefits is not over. Retired players, led by Carl Eller, sued the NFL Players Association, Tom Brady and other active players in Federal Court, claiming the active players "had no authority to negotiate with the League the terms of pension, retirement, and disability benefits with respect to the class of retired NFL players described herein, something the NFLPA's counsel already have conceded."

The Eller class also sued the Brady class and the NFLPA "for interfering intentionally with the prospective economic advantage of the putative class described herein and for breaches of fiduciary duties assumed by the NFLPA with respect to NFL retirees."

When active NFL players reached a deal with the league and its owners, concerning billions of dollars in TV revenue, in time to rescue the season that just began, some sports columnists commented that the players had sold out the rookies and retirees.

In the new complaint, filed Tuesday, the retired players claim that "During recent years, the NFLPA has consistently favored the interests of active NFL players at the expense of NFL retirees' rights and benefits."

They define their class as all NFL players "who do not fall within the definition of the Collective Bargaining Unit ('CBU') contained in either the 2006 or 2011 CBAs between the NFL and the NFLPA."

The retirees say they were not part of either collective bargaining unit.

The 52-page complaint rehearses retirees' beefs with the Players' Association, including their long dissatisfaction with former NFLPA head Eugene Upshaw, who died in 2008. The retirees quote Bryant Gumbel, in 2006, calling Upshaw the "docile head of the players union" and the "personal pet" of the NFL commissioner.

The retirees say that defendant DeMaurice Smith, who succeeded Upshaw, promised to improve retirees' situation, but "he has failed in both his words and deeds." They say Smith even inherited a "blacklist" from Upshaw, of "dissident" retirees.

The retirees point out that when the Brady class sued the NFL on March 11 this year, for its lockout, the Brady class "did not seek to represent a class of former NFL players."

The Eller class sued the NFL on March 28, and the U.S. District Court consolidated the cases, under the Brady civil action number. But the retirees say: "Counsel for the Brady defendants repeatedly disclaimed any intent to represent the class of retired players defined in the Eller I complaint".

Citing an email from the Brady class counsel, the retirees say that in negotiations over the spring and summer, the Brady class wrote to the Eller I plaintiffs an offer that "'Eller would make the proposal on the retired player issues.' This was an explicit concession that the Eller I plaintiffs were to be in charge of negotiating issues relating to the claims of retired NFL players."

Among the demands the retirees made was medical monitoring to diagnose brain injuries, and a proposal that 2.5 percent of NFL revenue be set aside for retirees, according to the complaint.

The retirees say they repeatedly told the judge and the Brady class that their concerns would have to be represented in any settlement. But they say they were excludes from the intense negotiations that concluded the lockout, and that it had become clear by June "that the Brady defendants (and through them, the NFLPA) and the NFL were negotiating issues relating to retired NFL players (negotiations that ultimately led to the settlement of the Brady action and the creation of the 2011 CBA.)" (Parentheses in complaint.)

The retirees say the Brady class and the NFLPA claims that retired player Cornelius Bennett was representing them in the negotiations, but they say "No one among the Eller I plaintiffs authorized the NFLPA or the Brady defendants to assume that role."

And they say that when U.S. District Judge Arthur Boylan ordered the Brady defendants and the NFL to appear before him in July for settlement negotiations, "Counsel for the Eller I plaintiffs asked Judge Boylan to convey a request to the other parties that the Eller I plaintiffs wanted to participate in these discussions. He did so and the request was refused."

The complaint adds: "Counsel for the Eller I plaintiffs asked if they could negotiate retiree issues directly with the NFL. They were told the League could not do so."

The retirees seek declaratory judgment that the 2001 collective bargaining agreement "did not release any claims that could be asserted by the Eller I plaintiffs or by the plaintiffs herein"; that the Brady defendants and NFLPA had no right to represent them in the negotiations "and were disqualified from doing so because of the inherent conflict of interest between such retirees and active NFL players"; and that any agreement covering retirees "be excised from that agreement and be renegotiated between plaintiffs and the League."

And they seek damages for intentional interference with prospective economic advantage and breach of fiduciary duty.

Their lead counsel is Shawn Stuckey with Zelle Hoffman Voelbel & Mason, of Minneapolis.

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