By Jeff Nixon,  posted October 17, 2011

While the new CBA continues to give the NFL the right to use active player images, names and likenesses to publicize and promote NFL football while they are still actively playing, there is some new language that was inserted into the agreement that could have a profound effect on the active player’s publicity rights when they eventually join the ranks of the retired.

The language states: “For purposes of clarity, the foregoing grant of rights includes the right and authority to use, and to authorize affiliates or business partners to use, after the term of this Agreement any Publicity Rights fixed in a tangible medium (e.g. filmed, photographed, recorded or otherwise captured) during the term of this Agreement, any right or authority solely for the purposes described herein.”

Do the active players understand what that means?

By signing their player contract, the active players have now given the NFL the right to sell their NFL game performances in any and all media without having to compensate them after they retire from the NFL.

Not only did the NFLPA and active players give up these property rights, but they allowed new language to be inserted into their contracts that gave away the right to sue or contest the NFL’s use of certain property rights even after the term of the agreement:

“Player and National Football League Players Association, including any of its affiliates (“NFLPA”) do not and will not contest during or after the term of the Agreement, and this hereby confirms their acknowledgement of, exclusive rights of the League, Club and any NFL member club(i) to telecast, broadcast, or otherwise distribute, transmit or perform, on a live, delayed, or archived basis, in any and all media now known or hereafter developed, any NFL games or any excerpts thereof and (ii) to produce, license, offer for sale, market, or otherwise distribute or perform (or authorize a third-party to do any of the foregoing), on a live, delayed, or archived basis, any NFL games or any excerpts thereof, in any and all media now known or hereafter developed, including, but not limited to, packaged or other electronic or digital media.” 

So there it is in a nutshell.  The NFLPA and active players have given away any chance they may have had to receive a fair share of the money the NFL generates from selling the archived footage of their performances in NFL games, or any excerpts of those games after they retire.

The real irony of this story is that NFLPA Executive Director DeMaurice Smith complained about the fact that the NFL owners did not pay retired players for their Legacy. Here is what he said in a June 7, 2010 SB Nation interview: “So I know individual teams sell legacy. My problem is they don’t pay [retired players] for it. And because no team pays for that legacy while they’re selling it, I think if you’re a star running back for your local team and your local team continues to use your name and picture, put it on the wall and basically tells fans to buy tickets for that history, that legacy, that player. You [the NFL] don’t pay that player anything.”   

DeMaurice Smith made that statement and then turned around and negotiated a CBA that takes away some key publicity rights that current players could potentially be paid for when they retire.

Was there some quid pro quo for doing this? It’s hard for me to believe that the NFLPA would give away these key publicity rights without receiving something in return. There were substantial increases in active player benefits over the term of the agreement, so maybe that was the trade-off.

Was it worth the price they paid?    

The NFL and NFL Films have made hundreds of millions off the sale of films, videos and dvd’s that have captured player’s performances over the past 50 years. I wrote about this in an article entitled – The NFL Legacy: Created in our image. The money from the sale of digital media will continue to grow and grow but the current players made a decision to forego the possibility of ever getting a piece of that property rights pie.

In contrast to what the active players have done, it is important to know that retired players never gave away their publicity rights and that is why there is a series of Class Action lawsuits  currently working their way through the courts.

The retired NFL players allege that the NFL, including its NFL Films division, has – and continues – to use retired players’ identities to promote the league and earn substantial revenues without consent from the players.

“There is no dispute that these videos promote the NFL,” said Bob Stein, a former NFL player and attorney representing the players. “This suit is on behalf of thousands of players who want nothing more than to obtain their fair share of the revenues the NFL has earned, and the brand it has built due to their contributions. This is especially current with the growth of distribution channels such as the NFL network and worldwide internet marketing.”

It is interesting to note that when the new standard player contract language was revised to give away the active player’s publicity rights even after the term of the agreement, they did not use the words “in perpetuity” which is the standard language used in most contracts to mean “forever.” I believe that was purposely done as defensive strategy against the aforementioned lawsuits. The NFL has used the term “in perpetuity” in many other contracts, but unfortunately for them, they never used it in the previous standard player contracts, so instead they said “For purposes of clarity” to imply that it was always their intent to retain these publicity rights into perpetuity. 

While it might be clear to them, it was never clear to retired players – and it won’t be clear to the court or a jury that hears this case. The fact that the NFL and NFLPA put this new language in the new CBA may even help the retired player case, because it shows how they are now closing the legal door on player publicity rights after they have retired.    

While retired players continue to fight to protect their publicity rights and get paid a fair share of the revenue that has been generated over the past 50 years, the NFLPA and the active players just made the mistake of giving their’s away in what I believe was an exchange for more “money now” in the new CBA agreement.

I think the NFL knows that former players have a very good publicity rights class action lawsuit against them and that is why they negotiated the future “publicity rights” away from the active players in this new CBA. They don’t want this to be an ongoing problem. 

The owners know that at some point down the road they may have to come to a large monetary settlement with former players. They don’t want the current players following us down that road, so they set up a detour. That detour probably led the active players to a quick pot of gold, but they gave up some important publicity rights to get it.

Will the active players come to regret their short-sighted decision in the future?

If retired players win their class action lawsuit and start receiving royalties, or a share of the proceeds that were generated from the sale of our images, the active players may start to second guess their decision. 

While we all await the outcome of the Class Action lawsuit, you can always go to the Hulu website and watch some of the greatest games ever played – the retired player “Legacy” now captured in digital format into perpetuity! 

I wonder how much Hulu paid the NFL to use our images?  

We already know how much we got paid!