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John Frederick Dryer, James Lawrence Marshall, Joseph Michael Senser, Elvin Lamont v. National Football League

April 5, 2013


The opinion of the court was delivered by: Paul A. Magnuson United States District Court Judge


This matter is before the Court on Plaintiffs' Motion for Preliminary Approval of Settlement. For the reasons that follow, the Motion is granted.


In brief, this case involves former professional football players who contend that the NFL is violating their common-law and statutory rights of publicity.

This litigation has been contentious from the outset. However, after months of negotiations, and due to the yeoman's efforts of a group of Plaintiffs, their counsel, the NFL, and the Magistrate Judge assigned to this case, Chief Magistrate Judge Arthur J. Boylan, the parties reached a settlement. This settlement provides for a fund overseen by a panel of former players (the "Common Good Entity") that will distribute payments to assist former players and their families, and for a licensing agency to market former players' publicity rights, with the blessing (and the use of some trademarks and copyrights) of the NFL. Thus, for example, a former player may, under the settlement and through the licensing agency, sell to the public a jersey from his former team with his name emblazoned on the back.

Despite the benefits of the settlement, a group of Plaintiffs opposes the agreement. These Plaintiffs contend that the settlement is not appropriate because it does not directly benefit them, ignoring the fact that the settlement in fact directly benefits those in whose name this lawsuit was purportedly brought: the players who toiled in obscurity and now are destitute. The opposing Plaintiffs contend that this Court faces reversal if it approves the settlement, because the settlement requires an impermissible cy pres distribution of settlement proceeds. In addition, the opposing Plaintiffs contend that the Plaintiffs supporting the settlement have failed to maximize the money the NFL will pay by failing to determine the monetary value of the rights Plaintiffs will assign to the licensing agency under the terms of the settlement.


Approval of a class action settlement under Federal Rule of Civil Procedure 23(e) is a two-step process; first, the Court must enter a preliminary approval order, and second, after providing notice of the proposed settlement to the class and a final fairness hearing is conducted, the Court must enter a final approval order.

The Court analyzes "four factors in determining whether a settlement is fair, reasonable, and adequate: (1) the merits of the plaintiff's case, weighed against the terms of the settlement; (2) the defendant's financial condition; (3) the complexity and expense of further litigation; and (4) the amount of opposition to the settlement." In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir. 2005). "The most important consideration in deciding whether a settlement is fair, reasonable, and adequate is [the first factor.]" Id. at 933 (citation omitted). The last of these factors is analyzed at the final approval stage, following class notification.

A. Factors

Despite the opposing Plaintiffs' belief in the merits of their case, a realistic view of this matter reveals serious difficulties both with Plaintiffs' claims and with their chosen vehicle for redressing their claims. This Court has held that the statute of limitations for Plaintiffs' claims is 6 years, thus severely limiting the time period for which damages might apply. More noteworthy, however, are the problems with class treatment of this action. The Court has stated on more than one occasion that the certification of a class action in this matter is highly doubtful, at best. And absent class treatment, it is unlikely that any single Plaintiff's claim is so valuable as to warrant engaging in the protracted litigation that is likely to follow if this case is not resolved. The merits of the case weigh very heavily in favor of the settlement before the Court.

This litigation has been protracted and contentious for more than three years, and is not likely to be less so should the settlement fall by the wayside. Thus, the complexity and expense of further litigation of this matter weigh heavily in favor of the settlement.

The final factor that the Court is required to consider at the preliminary approval stage is the financial condition of the NFL. This factor is not at issue here-the NFL is able to pay any judgment against it. Thus, this factor does not weigh for or against the settlement.

Although generally a matter for the final approval stage, the Court must here address the opposition to the settlement, in the form of opposing Plaintiffs' contentions regarding the settlement's shortcomings. The most vociferous of these contentions is that the settlement constitutes an impermissible cy pres distribution of the settlement funds, with the subtext that cy pres distributions are against public policy and thus that this settlement is likely to be overturned on appeal.

This settlement is not a cy pres distribution of funds. Rather, the settlement merely creates an administrative vehicle, overseen and directed wholly by members of the Plaintiff class, to fairly and directly distribute the proceeds of the settlement to the class. This is not a case where the Court is directing that settlement proceeds be paid to a third party; rather, the settlement proceeds will be paid to members of the Plaintiff class, and specifically to those members of the class who need it most. It is double-speak for the opposing Plaintiffs to complain about the establishment of a fund that class members will control and also complain that there is no "outsider" on the board of the fund to ensure that the fund is run in a businesslike, economical way.

It bears repeating: the individuals who originally brought this lawsuit and who now oppose the settlement rode into Court on the banner of saving their downtrodden brethren, those who had played in the NFL yet today were penniless and, often, suffering from injuries or illnesses directly related to their playing days. It is the height of disingenuousness for these same Plaintiffs to now complain, like children denied dessert, that the settlement does not benefit enough the individuals who brought the lawsuit. The benefits of this settlement to the class are plain: it will assist those who most need assistance, and will resolve the very problem that this lawsuit seeks to address by allowing former players true access to the value of their rights of publicity.

Every hour of attorney time spent opposing the settlement only diminishes the value of that settlement to the members of the class. The Court urges the opposing Plaintiffs to consider their less fortunate teammates before deciding to mount further opposition such a thoughtful, beneficial resolution to this case.

B. Settlement Class

To effectuate the Settlement, the Court hereby conditionally certifies the Settlement Class, pursuant to Fed. R. Civ. P. 23(b)(3), defined as follows:

All individuals who, prior to or as of the date of this Order, were or are on the roster of any Member Club and who, as of the date of this Order, (a) have retired, formally or informally, from playing professional football with the NFL or any Member Club, or (b) were formerly on any roster of any Member Club and are no longer under contract to a Member Club and are not seeking active employment as an NFL player with any Member Club (collectively, "Retired Players"); and for Retired Players who are deceased, all of their respective heirs, executors, administrators, beneficiaries, successors, and assigns who own or control their Publicity Rights.

In support of the conditional certification, the Court finds, solely for purposes of the Settlement, that:

a. The Settlement Class is so numerous that joinder of all members is impracticable;

b. There are questions of law or fact common to the Settlement Class;

c. The claims of the representatives of the Settlement Class are typical of the claims of the Settlement Class;

d. The representatives of the Settlement Class will fairly and adequately protect the interest of the Settlement Class; and

e. The questions of law or fact common to the Settlement Class predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Darrell Anthony Thompson, Fred Lee Barnett, Tracy Anthony Simien, Lemuel Joseph Barney, James Nathaniel Brown, Mark Gregory Clayton, Irvin Acie Cross, Brian Duncan, Billy Joe Dupree, Michael James Haynes, Paul James Krause, Bruce Allan Laird, Reggie McKenzie, Preston Pearson, Reginald Joseph Rucker, Jackie Larue Smith, and Jim Ray Smith (the "Settling Plaintiffs") are selected to be representatives for the Settlement Class.

On December 12, 2012, the Court appointed Daniel E. Gustafson of the law firm Gustafson Gluek PLLC as Plaintiffs' Lead Settlement Counsel for the Class (Docket No. 250).

On January, 12, 2103, the Court further clarified Mr. Gustafson's duties as Plaintiffs' Lead Settlement Counsel (Docket No. 252) and, on February 25, 2013 (Docket No. 256), the Court announced that a settlement had been reached and instructed Mr. Gustafson to take the appropriate steps to seek approval of the proposed Settlement.

Pursuant to Fed. R. Civ. P. 23(g), the Court now appoints Mr. Gustafson as Plaintiffs' Lead Settlement Counsel for the Settlement Class. Mr. Gustafson is familiar with the claims in this case and has done work investigating these claims. He has consulted with other counsel in the case and has experience in handling class actions and other complex litigation. He has knowledge of the applicable laws and the resources to commit to the representation of these Class Members. At this time, Plaintiffs' Lead Settlement Counsel shall have the responsibility for overall case management and litigation responsibility on behalf of the Settlement Class.

Plaintiffs' Lead Settlement Counsel shall be the contact between Plaintiffs' counsel and Defendant's counsel and shall direct and coordinate activities on behalf of the Settlement Class. Plaintiffs' Lead Settlement Counsel shall also be responsible for communicating with the Court, filing any motions or pleadings on behalf of the Settlement Class, and for receiving and, as appropriate, distributing to other Plaintiffs' counsel Orders from the Court and documents from opposing counsel. Service by the Defendant on Plaintiffs of any papers shall be deemed to be complete for all purposes when a copy is served on Plaintiffs' Lead Settlement Counsel.

C. Notice

The proposed Notice Plan is hereby approved, including the form of Notice attached to the Settlement Agreement, in accordance with the Notice Plan submitted by Plaintiffs' Lead Settlement Counsel. The Court finds that notice given pursuant to the terms of the Settlement Agreement and as set forth in the Notice Plan is reasonable and constitutes the best notice practicable under the circumstances, constitutes due and sufficient notice of the Settlement and the matters set forth to all persons entitled to receive notice, and fully satisfies the requirements of due process and of Federal Rule of Civil Procedure 23.

By no later than May 31, 2013, the Court directs Plaintiffs' Lead Settlement Counsel to provide mailed notice to all Class Members with known addresses in accordance with the Notice. Plaintiffs' Lead Settlement Counsel shall also cause the publication of the Summary Notice Plan to be completed by August 1, 2013. Counsel for Defendant is ordered to provide notice to appropriate Federal and State officials, as required by 28 U.S.C. § 1715.

D. Exclusions

Any Class Member who wants to be excluded from the Settlement Class must submit a written request for exclusion postmarked on or before August 30, 2013. The request for exclusion must follow the procedures set forth in the Notice, and must include:

a. The individual's full name, current address, and telephone number;

b. The individual's e-mail address, if available;

c. The years the individual (or the deceased NFL Player) played in the NFL or AFL and the name(s) of the Member Club(s) that individual (or the deceased NFL Player) played for; and

d. The individual's signature (even if represented by an attorney) and the date on which the ...

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