Fourth and Goal Unites

 Written by Jeff Nixon, Posted July 29, 2010  

Sometimes I feel like former NFL players are the “Bull in the Ring”.   

You remember that old high school football drill where players form a circle in the middle of the playing field, and choose one player to be the “bull” in the middle. The coach then throws a football to a player standing in the outer circle. That player must cross the circle and exit directly across from where he started. The player that is the “bull” must try to tackle him before he accomplishes this task. If the player makes it across without being tackled, repeat the drill with the “bull” remaining in the center. If the player is tackled or runs out of the circle before making it all the way across, he is the “bull” for the next round.  

Unfortunately for retired NFL Players, we just don’t know how to get out of the ring because we can’t seem to tackle the ball carriers – the NFL and the NFLPA.  

You remember what happens to the Bull in the Ring after about 6 or 7 attempts at tackling the ball carrier. They finally become so fatigued that they just can’t finish the drill. The coach finally shows pity on them and lets someone else become the “Bull”.   

Maybe former players are all just “Bulls in the Ring” and the NFL and NFLPA hope we will eventually just give up.    

Well, that’s not going to happen………we are tired of all the Bull !  

After reading the following statements by the NFL and NFLPA you have to scratch your head and say to yourself, “Who is telling us the truth and who is feeding us a bunch of Bull?”      

Commissioner Roger Goodell’s March 9, 2010 Letter to Congresswomen – Linda Sanchez   

“Several months ago, we made a proposal to the union that involved reducing the exorbitant salaries and bonuses that our clubs pay to rookies each year and using the first $100 million of that savings to cover increased pensions and other benefits for our alumni. We offered to implement such a plan immediately, even without a new collective bargaining agreement, in order to deliver more assistance to retired players now. The union to this point in our discussions has not agreed to that proposal.”   

DeMaurice Smith’s comments to a select group of online writers – July 21, 2010  

“The rookie pay scale is something we have proposed that gets instituted but we want to make sure that the money not getting paid to rookies goes to proven veterans. The NFL has not agreed to this. We are willing to contribute some of these monies to put into a fund to support retired players. The NFL did not want to do that. When we were in Indy and we all agreed that the rookie plans would save about $200 million. The players were content to send $100 million to retired veterans and the other $100 to proven veterans. It’s the players’ money. We are disagreeing on how you spend…OUR money? Huh?”    

Roger Goodell’s comments on CNBC’s Squawk Box – April 22, 2010 

Commissioner Goodell: “We want all of our players to be paid appropriately.  When you are coming in as a rookie, there is still some question about whether you are going to have the ability to play at the NFL level… An extraordinary amount of money that is guaranteed — $600 million of guaranteed money will be committed over next three days.  Some of those players won’t make it in the NFL.  That money goes out of the system.  We would like to keep that money in the system and make sure it goes to veteran players because they have already proven that they can play on the NFL level.  It’s a matter of reallocating and shifting our economics so that all of us can be successful.”  

Demaurice Smith’s comments made on the “Mike & Mike in the Morning,” ESPN Radio, July 21, 2010  

“The NFLPA proposed a rookie wage scale that would take $200 million out of the rookie pool and we only had two criteria for that rule to be put in place: First, we wanted to take $100 million of that and have it go toward retired players who played prior to 1993 to increase their pensions. The only other condition we put on that was that the other $100 million be spent on proven veterans. We wanted a guarantee that the money be spent on proven veterans, and the owners said no.  

Jeff Pash – NFL Executive Vice President of Labor League Counsel comments on “Mike and Mike in the Morning” ESPN Radio.   July 22, 2010   

What NFLPA Executive Director DeMaurice Smith said yesterday on the show, is not exactly how it happened. You really haven’t gotten the full story. 

What happened is we went to the union – this is back in 2009 before the (2010) draft and anything else – and we said we have a number of issues that are tough issues that we have to work out, but we think there is one issue that we have a common purpose on, and that is addressing the rookie system. 

We proposed to put the new rookie system in for 2010 with this year’s draft class, and we would commit that the first $100 million of savings from the rookie system would be used for retiree benefits. We’ll put them into pensions; we’ll put them into disability (assistance); and we’ll improve the ADA plan. We were open to anything the retirees think would be helpful to them. 

We think it’s appropriate. We recognize that there is a genuine issue here that we can and should do better for our retired players. We thought that it was a perfectly logical place to start. The union came back to us and they said, ‘Well, first of all, we don’t like the (rookie) wage scale, so we reject that.”  

________________________________________________________________ 

So, now that you’ve read the above statements, is it crazy to think that maybe, just maybe we are we being played by the powers that be? Both sides are claiming that the other side doesn’t want a Rookie Wage Scale.  

Some of the greatest players in the history of the NFL have asked for the Rookie Wage Scale to be implemented. 80 Hall of Fame Players signed a letter asking the active players to get it done.  Is anyone listening?  

When they finally come to an agreement, will retired players once again get caught in the cross-fire with the NFL blaming the Union and the Union blaming the NFL for not getting us the pensions we deserve?  

If we are the “Bulls in the Ring” then someone must have put a Flank Strap on these old Bulls because we are not giving up and we will continue bucking the system!  

One last thing. They just outlawed Bull fighting in some parts of Mexico because they finally came to the realization that it was a cruel and inhumane way to treat a Bull.  

The NFL and NFLPA could learn a thing or two from that analogy! 

Sometimes the Bull wins!

Written by Alex Marvez is a Senior NFL Writer for FOXSports.com. He’s covered the NFL for the past 15 seasons as a beat writer and is the former president of the Pro Football Writers of America. Posted  July 22, 2010  

To the casual observer, Chris Cooley is dressed for success on game days.

The Washington Redskins tight end dons the standard NFL uniform with a helmet and shoulder pads. But upon closer examination, Cooley isn’t wearing any padding to protect his thighs or tailbone. And if he had his way, Cooley would shed even more of the equipment intended to shield him from injury. 

“You just feel more comfortable, faster and there’s less stuff to move around in,” Cooley said last month after a Redskins minicamp practice. 

Cooley isn’t the only one who feels this way. Only 50 percent of players wear every major piece of protective padding at their disposal, according to statistics given the league by the NFL Players Association. 

Even though it may lower concussion risk, one quarterback (Seattle’s Matt Hasselbeck) and two centers (Kansas City’s Casey Wiegmann and Washington’s Casey Rabach) surveyed by FOXSports.com said they don’t use mouth guards largely because of verbal communication concerns and discomfort. Wide receivers and defensive backs are known for eschewing any protection between their knees and torso. Some remove the actual padding and use only the thin plastic shells. 

“I just don’t understand it,” Redskins defensive end Phillip Daniels said. “I’m an old-school guy. I don’t feel comfortable when I don’t have anything down there. 

“This ain’t basketball. It’s football. Those pads are for a purpose.”

NFL commissioner Roger Goodell and NFLPA executive director DeMaurice Smith agree. Both told FOXSports.com last month they are working to craft rules that would make the use of more protective padding mandatory starting with the 2011 season. Smith said he is soliciting input from the NFLPA’s medical staff and current players about potential changes and how position-specific the required padding should be. 

Ray Anderson, the NFL’s executive vice president of football operations, said the rules could be enforced by referees who would bar a player without mandatory padding from the field for repeat offenses (a similar rule already exists mandating helmet chinstraps are buckled). Game-day monitors whose main job now is checking that uniforms conform to league standards also would have expanded roles in pregame and halftime enforcement. 

“From a players’ side, our job is to continually push for the safest working environment,” Smith said. “That’s important not only on the field but, as we now know, critically important for what their lives can be like after football.” 

In 1995, the league lifted the mandate for all padding except helmets and shoulder pads. Teams, though, can fine players who miss games or practices because of contusions suffered while not wearing pads. 

Goodell admitted there is no “reliable data” that proves the injury rate would be lowered through mandatory use of pads or even mouth guards. The league has failed to track whether man hours missed from contusions or other injuries in prior seasons correlated with players who weren’t wearing pads. The NFL will start compiling such information this season. 

“Whatever (the NFL) did back then under different leadership is what they did,” Anderson said. “But under this commissioner and his senior leadership, player safety is a priority — period. If we don’t have players healthy on Sunday to play or practice during the week, nobody’s benefitting.” 

Yet any changes would be met with significant resistance from those players who already feel they’re forced to wear too much equipment while also having to follow other league uniform requirements like socks pulled knee-high and tucked-in jerseys. 

Vanity plays a major role in such thinking, especially among some wideouts and cornerbacks who are self-conscious about their appearances. Some also believe they run faster without pads, even though the NFL says such a contention has never been proven. 

“It’s a combination of speed and looks,” said Chiefs wide receiver Chris Chambers, who uses shells to protect his thighs and doesn’t wear a tailbone pad. “It might be looks first, to tell you the truth. If you look good, you’re going to feel good. You’re going to feel fresh. You’re going to feel fast. You don’t want these big, bulky thigh and knee pads.” 

The NFL is trying to address the problem through the introduction of new eye-catching protective equipment. Twelve teams during the preseason will experiment with an undergarment that has sewn-in pockets for sleeker thigh, knee and tailbone pads. 

Yet to players like Cooley and Chambers, such steps are unnecessary. Veterans of six and nine NFL seasons respectively, neither has suffered a thigh or tailbone injury during their NFL careers despite a lack of padding. 

“It’s not an area I feel needs protection all the time,” Cooley said. “I’ve never worn a (tailbone) protector. It’s not a necessary piece of equipment. It comes down to comfort and necessity of what I need at my position – where I’m getting tackled and hit the most often.” 

Hasselbeck said he wears thigh and knee pads but wonders if they’re “just for looks. I don’t know if they’re doing anything.” 

Hasselbeck said he will wear rib pads for the first time this season after suffering fractures last year against San Francisco that sidelined him for two games (“Thank you, Patrick Willis” Hasselbeck quipped about the debilitating borderline hit from the 49ers linebacker). Hasselbeck remains undecided about whether he will wear a mouth guard despite the urging of teammate Lawyer Milloy and his father-in-law – a dentist. 

Hasselbeck knows he would receive additional protection from a mouth injury. But Hasselbeck, who has a Boston accent, believes his audibling at the line of scrimmage would be more difficult for teammates to understand if forced to use a mouth guard. The same problem affected Wiegmann and Rabach because the center position is usually responsible for line calls.

“I always had a mouthpiece in the top of my helmet just in case, but I got comfortable,” Wiegmann said. “Now I can’t even put one in.” 

Said Rabach: “It restricts your breathing. You always lose the damn thing or it ends up in your shoe, which is pretty nasty. I understand the ramifications of not wearing one, but I haven’t in nine or 10 years.” 

Asked whether he has suffered a concussion during his NFL career, Rabach laughed and said, “I’ve never been diagnosed with one.” Wiegmann has and admits to playing “a couple of games where I don’t really remember the game at all.” 

Hasselbeck said he has suffered three diagnosed concussions since high school. Hasselbeck, though, said he was told by a team doctor that there is no absolute proof mouth guards can help prevent concussions. That contention was backed by Goodell and Anderson. 

“Until you have more across-the-board validity, it’s hard to force people to do things,” Anderson said. “We have to be realistic in that you’ve got to be able to validate your case before you take Draconian measures. It’s not in our best interest to be Big Brother on things that we can’t justify.” 

Said Goodell: “There’s conflicting research on that to some extent. It’s not necessarily proven, but clearly I think you’d be safer with a mouth guard in your mouth.” 

Ultimately, the NFL may enact mouth guard and padding rules to save players from themselves and reinforce the higher standards in place at the college, high school and youth levels. Even if there is no hard proof that injuries can be prevented, the NFL is learning the hard way about not proactively addressing safety issues in the past. The New York Times reported that the league is facing potential liability of $175 million for workman’s compensation claims filed by retired players in the state of California. Those claims could grow as health problems – whether football-caused or not — emerge for a new generation of retired players. 

“You obviously want the players or any worker to have the protections required by law,” Goodell said of the California workman’s compensation issue. “You also want to make sure they’re not being misapplied or people are trying to get something they’re not legally required to get … It’s a balancing act.” 

So is trying to convince players that more padding is not only in their best interest but also wouldn’t significantly impact their performance or speed.

“If everyone had to do it, the game would be exactly the same,” Chambers said. “Nobody would have an advantage.”

Except possibly being healthier.

Written by Jeff Nixon, posted July 22, 2010

Back on February 24, 2010 I posted an article entitled: Why is the mouth guard not a mandatory piece of equipment in the NFL?  

In the article I mention that the NFL has been reluctant to discuss mouth guards because until recently, researchers have had very little understanding of how they can be linked to the prevention of concussions. In the article I think I made a pretty good case for why they need to be a mandatory piece of equipment, but based on what we are hearing in the news, no one at the NFL or NFL Players Association seem to care. 

Commissioner Goodell came out yesterday and said the league will urge players to wear more knee, thigh and hip protection this preseason with an eye toward making the changes mandatory in 2011. He said he wants to make the game safer for players and help teams avoid man-hours lost to otherwise preventable injuries. The league also wants to set a safety example for college and high school players. 

Most colleges and high schools in the United States require their football players to wear mouth guards, so in that respect aren’t they the ones setting an example for the NFL?

The NFL rulebook recommends players wear knee, hip and thigh pads – but only uniforms, helmets and shoulder pads are mandatory. 

Ray Anderson, the NFL‘s Executive Vice President of Football Operations recently said “It’s not mandated for 2010. But we anticipate we’ll need to mandate it going forward.”  Anderson took a strong stand on the issue saying “We’re not going to relinquish on player safety. Particularly when we know we can prevent lost workdays and help players stay on the field.”   

The NFL is worried about lost workdays?  How about lost lifetimes! 

A player can always get a shoulder repaired or knee replaced, but how do you replace a brain?  We have way too many examples of the devastating impact that concussions have had on the lives of former NFL players, but now there is evidence that a specialized mouth guard could be part of the solution.  

If Commissioner Goodell and the DeMaurice Smith are really serious about making the game safer and reducing concussions in the NFL, then they both need to agree to make the mouth guard a mandatory piece of equipment. 

With all the information and research that has been conducted and published on concussions, TBI (Traumatic Brain Injury), CTE (Chronic Traumatic Encephalopathy) and the high probability that they are linked to numerous cognitive disorders, including long-term memory loss, psychiatric disorders, neurological problems, Alzheimer’s Disease and dementia you would think that the NFL and the NFLPA would at least mention mouth guards whenever they have a press conference about player equipment and safety. 

For liability purposes alone, you would think the NFL would institute the mandatory use of mouth guards immediately regardless of what the NFL Players Association says. When players start to line up for disability payments as a result of their concussions, it’s not going to affect the Union’s finances, but it could affect the League’s finances. The owners fund the NFL Disability Plan, so you would think they would want to address this issue faster than a player can run without pads. 

George Atallah, spokesman for the NFL Players Association said he was aware of the NFL’s initiative on having players add more pads and was working with the league to get feedback from the players. He said “The players union views this is as one of a number of different health and safety items on the agenda.” 

It’s good to get player input, but even if active players don’t want to wear a mouth guard or put on additional padding, it’s the Union’s job to ensure the safety of its members and that is why a mouth guard mandate and preseason jaw evaluations should come from the NFL Players Association, not the League. 

I hope for the sake of all active players that the mandatory use of a mouth guard is on the NFL and NFLPA’s agendas.  

By Michael McCarthy, USA TODAY

The league will urge players to wear more knee, thigh and hip protection this preseason with an eye toward making the changes mandatory in 2011, said Ray Anderson, the NFL ‘s Executive Vice President of Football Operations.

Many NFL players have abandoned knee, thigh and hip pads to try to gain a speed edge. Many wide receivers, defensive backs and linebackers wear little more than helmets and shoulder pads.

But Commissioner Roger Goodell wants to make the game safer for players — and help teams avoid man-hours lost to otherwise preventable injuries. The league also wants to set a safety example for college and high school players, Anderson said.

The NFL will ask players from 12 of its 32 clubs (from the East Coast to allow for easier access for league personnel) to experiment with newer, lighter knee, thigh and hip pads during training camps and preseason games this summer. The players can use the equipment during the regular season if they want.

The NFL rulebook recommends players wear knee, hip and thigh pads, but only uniforms, helmets and shoulder pads are mandatory.

“It’s not mandated for 2010. But we anticipate we’ll need to mandate it going forward,” Anderson said. “We’re not going to relinquish on player safety. Particularly when we know we can prevent lost workdays and help players stay on the field. That’s to their benefit and the club’s benefit.”

Spokesman George Atallah said the NFL Players Association was aware of the initiative and working with the league to get feedback from the players. “The players union views this is as one of a number of different health and safety items on the agenda,” he said.

Posted by Michael David Smith on July 19, 2010 NBC Sports PFT

NFL Players’ Association Executive Director DeMaurice Smith says that if a deal is going to be reached on a new Collective Bargaining Agreement, the owners are going to have to open the books and give the union real information about the financial status of the league.

As it stands, Smith told Mike Florio on The Dan Patrick Show, all the owners are saying is that they want the players to agree to take $1 billion less. Smith says that just about the only issue on which the league has given the union any specifics is that the owners would like to expand the regular season to 18 games.

“Although we continue to talk and I’m still hopeful that we get a deal done, they remain firm on a $1 billion giveback and the only thing we have heard from them since April in a constructive way is that they want the players to play two extra regular-season games,” Smith said.

Smith stressed that if there is no football in 2011, that won’t be because the players don’t want to play — it will be because the owners shut the league down.

“The National Football League over the last two years has done nothing but prepare for this lockout,” Smith said. “This is not a work stoppage. This is a lockout.”

Although there have been some suggestions that Smith wants to force a lockout, Smith called that “probably the dumbest thing I’ve ever heard” and says he’s dedicated to keeping his union members working.

“I have a continued concern about the livelihood of our players,” Smith said. “It’s my job.”

Smith said he continues to be concerned about collusion among NFL owners, and he echoed the comments of NFLPA President Kevin Mawae about needing financial information about all 32 teams, and not just the Green Bay Packers, who are legally required to open their books.

“Let’s be real: It’s 1/32nd of the information we requested,” Smith said. “The owners want a billion dollars back from the players. They want to do that and still want to not give us the financial information that everybody would want.”

Posted by Gregg Rosenthal on July 19, 2010 12:15 PM ET

In the final hour of Florio’s Oosthuizen-tinged guest hosting gig on The Dan Patrick Show, Cris Collinsworth came on to talk about the 2010 season and the possibility there won’t be football in 2011. “The players will run out of money and the owners will be paid,” Collinsworth said. “In that scenario I can’t imagine a way where the owners won’t come out ahead in this one.”

Collinsworth was part of two players strikes during his career.  And while he rightly pointed out the current situation would be an owner’s lockout, the players still have more to lose in the short term if there is a work stoppage. 

Even though players get paid more than they did in Collinsworth’s days, he’s convinced many would go broke if they missed a significant portion of the season.  It’s a sad statement, but rings true.  NFLPA head DeMaurice Smith also stressed financial and benefits problems that his players would face in a previous segment with Florio.

A lockout next offseason looks almost inevitable now, but the real test for the union will come  closer to when regular player paychecks (Week One) are scheduled to show up. 

Associated Press

GREEN BAY, Wis. — The Green Bay Packers remain profitable, just not as much as they have been in recent years.

And as the only NFL team that opens its books to the public, this year’s financial report is certain to come up in the league’s labor negotiations.

Packers officials said Wednesday that the team posted an operating profit of $9.8 million in the fiscal year that ended March 31, down from $20.1 million the previous year. The team has been in a slide since posting an operating profit of $34 million four years ago.

President and CEO Mark Murphy attributed the decrease mostly to escalating player costs, putting the team squarely in the middle of a contentious debate between players and owners over a new collective bargaining agreement.

“There are some trends that we have seen over the last couple of years that continued, and obviously one of those is the escalation of player costs,” Murphy said. “Our player costs continue to grow at a rate faster than our revenue.”

As a publicly owned team, the Packers must report financial information to shareholders. Team officials briefed selected media outlets, including The Associated Press, on the team’s finances.

Taking into account investment losses that were less severe in 2009-10 than the previous fiscal year, the team reported net income of $5.2 million, up from $4 million.

The Packers took in a total of $258 million in the last fiscal year, $10 million more than the previous year.

But player costs increased sharply to $161 million, up from $139 million the previous year.

The team said player costs have been increasing 11.8 percent annually over the past four seasons, while revenue increased only 5.5 percent annually during the same timeframe.

“It’s not just this year,” Murphy said. “We’ve seen these trends for a number of years now that really point out some of the issues that we have with the current agreement.”

That’s the key sticking point between players and owners in negotiations on a new deal, with owners wanting players to take a significantly smaller share of overall money the league takes in. If the two sides do not agree to a deal, they face the prospect of a labor stoppage in 2011.

Packers officials are aware that this year’s report will be more closely scrutinized than in years past. They know some might even suspect them of painting an overly bleak financial picture to influence fan opinion.

“We can’t help the way other people look at it,” Packers vice president of administration/general counsel Jason Wied said. “But we have taken the same approach with our books, with our accounting principles, with the way we do business, with the way we pay our football team this year as we have in any year prior.”

NFL Players Association president Kevin Mawae said more of the 32 teams should provide detailed financial information.

“It’s 1/32nd of the financial information we’ve requested in response to their demand that we give back $1 billion and increase our risk of injury by playing two additional games,” Mawae said in a statement.

Murphy said the Packers actually might be in better financial shape than other teams carrying significant debt service on new stadiums. He does not expect other teams to open up their books.

“The players have all the information,” Murphy said. “They have audit rights to all of our revenue. They have everything they need to reach an agreement. [Late former union head] Gene Upshaw never had access to the owners’ books and was able to negotiate several extensions.”

Murphy, who worked for the union after his playing career was over, now is playing a key role in negotiations on the owners’ side.

“We want to reach an agreement with the players, and we will,” Murphy said. “We want it sooner rather than later. But we want it to be an agreement, a system that works not just for the owners but for the players and addresses some of these issues.”

The Packers’ nest egg — the so-called “preservation fund” — remains at $127.5 million.

Murphy also clarified reports about whether NFL owners will continue to receive money from the league’s national television contracts during a labor stoppage.

Murphy said owners will receive money from the networks but will have to pay the money back — with the exception of a portion of the money it receives from a contract with DirecTV. He did not provide specific numbers.

The Packers received $157 million in national revenue last year, an increase of $10 million. That includes $95.7 million in television revenue, up from $94.5 million.

But the team’s locally generated revenue has been flat in recent years, dipping to $100.4 million last year from $100.8 million the previous year.

Looking for a boost, the team is exploring the possibility of expanding Lambeau Field and building new businesses on property it owns near the stadium. Focusing on the south end zone, Murphy said the team could increase Lambeau’s capacity by up to 9,000 with new seats or standing-room-only tickets.

“Whatever we do, we want to do it right and make sure it’s consistent with Lambeau,” Murphy said.

Author: Benjamin G. Shatz  Posted July 13, 2010 

Last week Manatt lawyers filed an opening brief in the Ninth Circuit Court of Appeals on behalf of football legend Jim Brown.  This opening salvo in Brown’s appeal was widely reported, including coverage in the New York Times and by the Associated Press. 

Brown, of course, is a member of both the college and professional football Halls of Fame, and is perhaps best known as the record-breaking running back for the NFL’s Cleveland Browns from 1957 to 1965.  The Sporting News selected Brown as the greatest football player of all time, and he has been designated a number one player in the “All Madden, All Millennium” football team.  Brown parlayed the fame he gained through his extraordinary athletic accomplishments into a career in entertainment (e.g., film and television roles) and public service (e.g., founding the Amer-I-Can program for inner-city youth).  Through his hard work, unique achievements, and public service, Brown, now 74 years old,  has become widely known to the public, and has developed substantial goodwill in his likeness and persona. 

Enter Electronic Arts (“EA”), a multi-billion dollar videogame company.  One of EA’s most popular series of videogames, Madden NFL, allows gamers to play highly realistic professional football.  So realistic, in fact, that EA uses the team trademarks of current players’ likeness pursuant to licenses it obtains from the NFL and the NFL Players’ Association.  The Madden NFL game, however, also allows gamers to play vintage (i.e., historic) teams, which – in EA’s words – feature “Real Old School Teams And Players,” including “fifty of the NFL’s greatest players and every All-Madden team.” 

Accordingly, Brown is among the retired players portrayed in Madden NFL, in classic teams such as the ’65 Browns and an All Browns team available on the game.  Yet EA never licensed this use of Brown’s image and persona. 

Instead, as established in Adderley v. NFLPA (a $28,100,000 jury verdict also handled by Manatt), rather than purchase licenses from the NFL Players’ Association to use the likenesses of retired players, EA simply “scrambled” those images superficially.  Thus, Brown’s name (and, in most versions of the game, correct jersey number) are not used in the game.  For instance, gamers playing the Championship 1965 Browns team in Madden NFL 2009, can control a 29-year-old, right-handed, African American running back, with 9 years of NFL experience, 6’2” tall, 228 lbs., having a “player ability rating” in the game of 99 (i.e., the highest possible skill level).  All of that data matches Brown’s actual statistics.  But in the game, the “Brown” character’s jersey number is changed to 47 (rather than his actual number of 32).  Even so, gamers can edit the Brown avatar’s appearance to insert his correct jersey number and input his actual name onto the character. 

Although EA consistently denied using Brown’s likeness or persona, Madden NFL consumers scoffed at that notion.  One Madden NFL player stated that “[t]o say [Jim Brown is not in the Madden NFL game] is like calling the grass purple and hoping that you’re talking to a blind man.”  Another consumer stated that to claim that “the running back on the [Madden NFL game] could be anyone but Jim Brown is an absolute joke.”  After all, one cannot play a realistically recreated 1965 Browns team without including representations of that team’s actual players, especially its most famous player. 

When Brown learned that Defendant Electronic Arts (EA) was using his image and persona as an avatar in Madden NFL without his permission, he sued for federal trademark violation and state law right of publicity claims.  Brown’s complaint alleged that EA’s practices misled consumers — allegations that are supported by authority from the leading trademark treatise, which states that over 90% of consumers believe that the use of a celebrity image in a product means that the image is licensed. 

Nonetheless, the district court dismissed Brown’s trademark claim, concluding that EA had a First Amendment right to profit by including Brown’s likeness in its games.  Having disposed of Brown’s federal claim, the district court then declined to address his state law claims.  Having been summarily ejected from court, Brown turned to Manatt to handle his appeal. 

Manatt’s opening brief for Brown explains that the district court should not itself have resolved the question of whether EA’s conduct was misleading.  That is a factual issue properly determined by a jury.  And – given that it has long been well established that the public reflexively concludes that, if a celebrity is “in” something, then the celebrity must have provided permission or endorsement – Brown’s case should not have been dismissed out of hand. 

EA’s immediate response to Brown’s brief has been to ask for a 45-day extension of time (on top of the usual 30 days it has to prepare a response).  Brown’s case raises novel legal issues of tremendous importance. 

The game is afoot, so stay tuned!