DIGNITY AFTER FOOTBALL Inc.
I am a former legislative aide for three US Senators, two before I made it in the NFL, and also have worked for the last 4 Presidents in various capacities (see www.Loweryspeaks.com); in 2001 I received my MPA from the Harvard Kennedy School of Government, and can speak with some authority on the proper role of government and law in the midst of this important sports issue.
I sincerely appreciate your courage and proactive efforts to build a dialogue and fight for justice. Because we will have to fight and it will require threatening the anti-trust exemption to get any close to the justice we need and deserve. Would like to send you something that summarizes the key issues. We all appreciated the Commissioner’s words on Bob Costas’ show regarding his father's courage to speak against the Vietnam war. As he said, sometimes its not just about numbers and logic and analysis, but doing the right thing to correct a wrong, unnecessary and destructive path. Working for Senator John Chafee of Rhode Island before I played in the NFL for 18 years, a Republican with perspective on history, I saw a man who worked to serve first, and took a stand to further the work of the American people rather than succumb to political gridlock and turf. Here are the issues as I see them: Its ironic that the last job I had before I made it with the KC Chiefs in 1980 I was working as a full paid member of the minority staff of the Senate Commerce Committee.
Please let me know if there is anything else I can add – my next door neighbor, Supreme Court Justice Byron White, whose award I was honored to win in 1993, would always say that ultimately the law, like a winning football play or strategy, had to work "on the field". Sometimes there isn’t precedent – there is merely the burden to create justice from our very hands.
A Map towards Justice: the 5 issues that must be confronted and changed by Nick Lowery, Harvard MPA, 2007 NFL Hall of Fame nominee and 1993 NFLPA Byron Whizzer White Award Winner
1) Lack of Transparency - I find it curious that the union has steadfastly prevented former players and the media from getting a clear, and full and fair comparison w MLB and NBA
Needed information so they can’t say we’re comparing apples to oranges:
* Different Number of players? Then account for that with % or $$ per/player stat
2) Pension should never have been detached from % of Gross – the heart of the problem!! The % of Gross won in the 1982 and 1987 strikes always included Pension in the "wages hours and working conditions" that would benefit from this new structured sharing in the growth of the game, so as the game grew our benefits would grow too. It is the detachment of the pension from the % of Gross that is the heart of this issue.
3) Historical accuracy: Upshaw did not pursue Free Agency during the Strike - he opposed it! Free agency was won even though Gene and Dick Berthelsen opposed Free agency lawsuit during the first ten days of the 1987 strike when Jim Harbaugh and I suggested it was a better solution than a strike at the Chicago airport Hilton (I remember it well - Walter Payton was right next to me, drumming on the desk).
4) Conflict of Interest - go to http://sports-law.blogspot.com
Please read the first two paragraphs on this!
*** Key point is that he is also a permanent member of very Disability/Pension board (having being nominated to that position by Upshaw) that has rejected virtually all claims for disability by players. Along with his good friend Jeff Van Note, another former NFLPA President and broadcaster for the Atlanta Falcons – i.e. employee of NFL Management (Falcons) ruling on Labor (former NFL players))
Thursday, September 06, 2007
Agents Representing Both Players and Coaches and the Increasing Role of Coach as "CEO" This week's issue of Street & Smith's Sports Business Journal (subscription only) reports that Creative Artists Agency (CAA) has officially moved into the coaches representation business by hiring former NFLPA president Trace Armstrong to start up the practice. Liz Mullen noted that "[i]t is the latest growth spurt from CAA Sports, which was created through the acquisition of the practices of several major agents last year, including NFL player agent Tom Condon (note: former NFLPA President during 1982 strike that one “revolutionary” % of Gross), who was Armstrong’s longtime representative." Incidentally, Condon is also the longtime (his entire career since 1984-5) representative of NFLPA executive director Gene Upshaw.
An agent that represents both players and coaches or front office employees can result in a conflict of interest, which I discuss in my law review article, "Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representatives of the Players." See also Professor Scott Rosner's excellent piece addressing conflicts of interests in the player-agent business, Conflicts of Interest and the Shifting Paradigm of Athlete Representation, 11 UCLA Ent. L. Rev. 193 (2004). Both attorney agents and non-attorney agents have a duty to avoid conflicts of interest. Attorneys are bound by the Model Rules of Professional Conduct, the main purpose of which is to further the overriding values of the legal profession; mainly, loyalty to clients, the maintenance of client confidentiality, and the zealous advancement of client interests. Model Rule 1.7, which specifically addresses conflicts of interest, provides that a lawyer shall not represent a client if (1) the representation of one client will be directly adverse to another client or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer; unless each affected client gives informed consent in writing. Although non-attorney agents are not bound by the Model Rules, they are still obligated to avoid conflicts of interest, but the obligation arises from common law agency requirements. The agent owes the athlete as his principal the fiduciary duty of loyalty, which means that the agent cannot get himself in a situation in which there is an actual, or even apparent, conflict between his interests and the interests ..."
Read more ---- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=936934
5) Weak Union fallacy as the excuse as to why we don’t have a better ‘deal’
Because of the outcomes from those two strikes and the free agency lawsuit, there is no longer a weak union. The outcome of those strikes from the so-called “weak” union led to % of Gross and Free Agency.
If we are or were a weak union, that’s old news
a) No need to strike anymore (none in 20 years)
b) Percentage of gross that supercedes the other sports
c) Higher total revenue package…
d) In short, 3-4 times the demographic advantage over the other sports and a shared revenue relationship supercedes all those arguments.
I haven’t worked for 4 US Presidents, 3 US Senators, and have an MPA and fellowship from Harvard’s Kennedy School of Government studying the system of just governance to continue to accept the union’s clearly manipulative and political policy of avoiding what the visionary Gorbachev (who found a way to lead Russia out of a tired, old, unjust system toward Democracy) called “Glasnost” – an honest, open accounting of all relevant facts - a responsible, clear, open, full and transparent comparison.
All players, the media and the American people can make up our own minds about what is accurate or not, fair or unfair.
Thanks again for your passion and your leadership, Brent.
An article from the SportsBusiness Journal
Disability pay to retirees from NFL-union trust rises
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By DANIEL KAPLAN
Published September 17, 2007 : Page 31
Disability benefits paid to retired NFL players from a special trust
overseen by the NFL and its players union rose more than 30 percent in the
two years ended March 31, 2007, according to the trust¹s tax returns.
The disclosure comes as Congress on Tuesday will hold another hearing on
whether the league and the NFL Players Association are doing enough to care
for retired players.
In a tax return signed Sept. 4 by the NFL Player Supplemental Disability
Plan, the trust disclosed it paid out $10.4 million to retired players in
the year ended March 31, 2007. That¹s up from $9.3 million in the year ended
March 31, 2006, and up from $8 million for the 12 months prior to that.
Those figures do not fully reflect all disability payments. The union¹s
pension fund also pays out disability benefits, and Douglas Ell, the counsel
for that plan, testified before Congress on June 26 that $20 million
annually was paid out to retired players in disability benefits.
Nonetheless, the figures are doing little to settle an issue that has become
a major public relations headache for the union and the league this year.
³Assuming that Ð the number has gone up slightly from year to year, then you
would have to look at the number of participants,² said Zuckerman Spaeder
attorney Cyril Smith, who represented the estate of deceased hall of famer
Mike Webster in a successful lawsuit to receive benefits from the disability
Ell told Congress that since 1993, of 1,052 claims, 427 were approved.
However, Smith countered, those figures fail to address the amount of the
claims¹ payout, adding that a few large checks would mean most players
received small amounts. During the Webster case, he said, the NFLPA
disclosed that only seven payouts of more than $200,000 had been made.
Nick Lowery, former NFL kicker and current radio show host, said there has
been no sudden surge in the money paid to disabled former players and that a
major structural change was needed in the system.
³When you don¹t take care of your own, when you don¹t take care of the
people who built the game, ultimately the game will suffer,² he said.
Tuesday, NFLPA Executive Director Gene Upshaw is expected to testify on the
subject for the first time before Congress when the Senate Commerce, Science
& Transportation Committee stages its hearing.
Proverbs 17:17 ~ “A friend is there at all times"”
2007 NFL Hall of Fame nominee
Dartmouth BA, Harvard MPA 2001