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Judge sides with retired NFL players on union appeal

January 13, 2009 |  7:30 pm

Herb Adderley

A federal judge in San Francisco today upheld a $28.1-million award that a jury had approved last November for retired NFL players who had sued the NFL Players Assn. over a contested marketing agreement.

Jurors on Nov. 10 ordered the players union to pay $7.1 million in damages and $21 million in punitive damages after determining that the union had failed to share revenue generated by marketing agreements with companies that manufacture video games, trading cards and other products.

Former Green Bay Packer star Herb Adderly and other retired NFL players filed the class-action lawsuit in 2007.

The union had asked the court to set aside the verdict and questioned whether the hefty financial award should stand. But U.S. District Court Judge William Alsup today ruled that the verdict and monetary award were appropriate.

"The test is whether the verdict, as rendered, was supportable," Alsup wrote in the seven-page document.  "The answer is yes. Nor was the verdict so far against the weight of the evidence as to warrant a new trial."

Alsup wrote that the hefty punitive damages award  "was not disproportionate to the wrong done or the compensatory award." The judge also wrote that, "viewed in a light most favorable to the verdict, the evidence was clear and convincing."

Here's a bit more of what Alsup had to say:

A monumental fact was never adequately explained by the defendants -- how could it have been that defendants lobbied thousands of retired players for fourteen years to sign up for [the marketing program] yet never paid one cent to any retired player under the program? Put differently, if retired players' images and identities were really the undesirable "dog food" contended by the defense, then why did they try so hard to sign up the [retired players] for so long -- only to never pay a penny?

The dog food reference was generated by a comment that the late Gene Upshaw made to the New York Times. "We could have the greatest dog food in the world," the former NFLPA executive director said, "but if the dogs don't like it, we can't sell it. Put that at the top of the story."

It is likely that the union will appeal the verdict and Alsup's ruling.

-- Greg Johnson

Photo: Pro Football Hall of Fame cornerback Herb Adderley is shown with a wax copy of his bronze Hall of Fame bust. Credit: Mel Evans / Associated Press