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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

John Frederick Dryer, James Lawrence Marshall, Joseph Michael Senser, Elvin Lamont Bethea, Dante Anthony Pastorini, and Edward Alvin White, on behalf of themselves and all others similarly situated, Plaintiffs, v. National Football League, Defendant.

Civil No. 09-2182 (PAM/AJB) THE DRYER PLAINTIFFS OPPOSITION TO PRELIMINARY APPROVAL OF THE PROPOSED CLASS SETTLEMENT

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TABLE OF CONTENTS
Page

INTRODUCTION ............................................................................................................. 1 ARGUMENT ..................................................................................................................... 2 I. II. III. PROCEDURAL BACKGROUND. ...................................................................... 2 TERMS OF THE PROPOSED SETTLEMENT. .................................................. 3 THE PROPOSED SETTLEMENT IS UNFAIR ON ITS FACE BECAUSE IT DOES NOT COMPENSATE CLASS MEMBERS...................... 5 A. B. C. The Proposed Settlements Cy Pres Distribution Is Unfair to the Class Members. .................................................................................... 7 A Cy Pres Distribution Is Not Justified in This Case. .......................... 11 Neither the Common Good Entity Nor the Licensing Agency Guarantee that Any Class Member Will Benefit from the Settlement. ........................................................................................... 13 The Proposed Settlement Releases Claims Based on Future Harms. ........................................................................................................ 15

D. IV.

THE RECORD IS INSUFFICIENT TO COMPARE THE SETTLEMENT VALUE TO POTENTIAL DAMAGES. ................................. 16

CONCLUSION................................................................................................................ 17

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TABLE OF AUTHORITIES
Page

Cases Buchet v. ITT Consumer Fin. Corp., 845 F. Supp. 684 (D. Minn. 1994) ............................................................................... 5 Fraley v. Facebook, Inc., No. C 11-1726 RS, 2012 U.S. Dist. LEXIS 116526 (N.D. Cal. Aug. 17, 2012) ............................................................................................................................ 12 In re Airline Ticket Antitrust Litig., 268 F.3d 619 (8th Cir. 2001) .............................................................................. 8, 9, 11 In re Baby Prods. Antitrust Litig., Nos. 12-1165, 2013 U.S. App. LEXIS 3379 (3d Cir. Feb. 19, 2013) ................... 6, 10 In re Bluetooth Headset Prods. Liability Litig., 654 F.3d 935 (9th Cir. 2011) ........................................................................................ 5 In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078 (N.D. Cal. 2007) ...................................................................... 6 In re Toys R Us Antitrust Litig., 191 F.R.D. 347 (E.D.N.Y. 2000) ................................................................................ 11 In re Uponor, Inc., No. 11-MD-2247 ADM/JJK, 2012 U.S. Dist. LEXIS 5339 (D. Minn. Jan. 18, 2012) ........................................................................................................................ 6 In re Wireless Telephone Federal Cost Recovery Fees Litig., 396 F.3d 922 (8th Cir. 2005) ........................................................................................ 5 In re Zurn Pex Plumbing Prods. Litig., No. 08-MDL-1958 ADM/AJB, 2012 U.S. Dist. LEXIS 149738 (D. Minn. Oct. 18, 2012) ................................................................................................................ 6 Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468 (5th Cir. 2011) .................................................................................... 7, 8 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ........................................................................................ 6

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TABLE OF AUTHORITIES (Continued)

Page

Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011) ...................................................................................... 9 Nielson v. Sports Authority, No. C 11-4724 SBA, 2012 U.S. Dist. LEXIS 168226 (N.D. Cal. Nov. 27, 2012) ............................................................................................................................ 17 Olson v. Citibank, No. 10-2992 (PAM/JJG), 2012 U.S. Dist. LEXIS 51857 (D. Minn. Apr. 12, 2012) ............................................................................................................................ 16 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ....................................................................................................... 7 Zimmerman v. Zwicker & Assocs., P.C., No. 09-3905, 2011 U.S. Dist. LEXIS 2161 (D.N.J. Jan. 10, 2011) ........................... 16 Other Authorities AM. LAW INST., PRINCIPLES OF THE LAW OF AGGREGATE LITIG., 3.07 (2010) ........... 9 MANUAL OF COMPLEX LITIGATION (FOURTH) 21.632 (Fed. Jud. Ctr. 2004) ............. 5 Rules Fed. R. Civ. P. 23(e)(2) ...................................................................................................... 5

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INTRODUCTION The proposed settlement should be denied preliminary approval because it does not guarantee that the class membersretired NFL playerswill receive any benefit. On its face, the settlement is unfair to the class members that are giving up their claims in this case. The amounts paid under the settlement will go only to undefined charitable organizations, and not to class members in the form of direct benefits. The NFL has built its Films library on the backs of retired players, but the proposed settlement does not guarantee the players any benefit from the complete release of their claims. Unlike the retired players, the NFL will receive a direct, substantial benefit from the settlement: each retired player must release all claims he has against the NFL for uses of his likeness both in the past and at any time in the future, forever. The value of the past claims released and future uses of publicity rights far exceeds the direct benefits the class members will receive: nothing. Plaintiffs and class members John Frederick Dryer, James Lawrence Marshall, Joseph Michael Senser, Elvin Lamont Bethea, Dante Anthony Pastorini, and Edward Alvin White (the Dryer Plaintiffs) therefore oppose preliminary approval of the proposed Settlement Agreement filed on March 18, 2013 (Dkt. #262-1, the Proposed Settlement). The Dryer Plaintiffs are the original plaintiffs which initially filed this action against the NFL to remedy the NFLs

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unauthorized use of retired players likenesses and publicity rights. They have prosecuted their cause on behalf of the class for over three years, and now oppose the Proposed Settlement because it does not benefit the class. In addition, no damages discovery has taken place. The settling parties have not provided any basis to believe that the total settlement amount is fair or reasonable compared to the value of the class members claims. This omission is complicated further by the fact that the class members must release all of their claims that might arise in the future. The Dryer Plaintiffs therefore respectfully request that the Court deny preliminary approval. They request oral argument at the preliminary approval hearing on March 22, 2013. ARGUMENT I. PROCEDURAL BACKGROUND. This class action was originally filed by the Dryer Plaintiffs on August 20, 2009. Dkt. #1. In 2011, two additional putative class actions were filed and consolidated with this action. Dkt. #141, #142. Several settlement conferences were held from June through November 2012. Dkt. #187, #195, #221, #228. On December 12, 2012, the Court issued an order staying the litigation and appointing Daniel E. Gustafson of Gustafson Gluek PLLC Lead Settlement Counsel for the putative class. Dkt. #250.

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On February 25, 2013, the Court issued an order announcing that Mr. Gustafson and counsel for the NFL had reached an agreement in principle on the key terms of a settlement. Dkt. #256 at 2. Mr. Gustafson filed an amended complaint, the proposed settlement, and a motion for preliminary approval on March 18, 2013. Dkt. #258-262. II. TERMS OF THE PROPOSED SETTLEMENT. The NFL has agreed to pay up to $50 million under the Proposed Settlement, divided as follows: the NFL will contribute up to a total of $42 million over the course of eight years to a Common Good Fund for charitable uses, $450,000 into escrow for notice and administration expenses, and $7.55 million into escrow for attorneys fees for counsel representing the settling plaintiffs. Proposed Settlement II.A.1, II.B.1. The NFL is allowed to deduct up to $13.5 million from its Common Good Fund contributions to pay for expenses arising from litigation with class members that opt out of the settlement, id. II.A.3, leaving $28.5 million for the Common Good Fund. The proposed settlement class includes retired NFL players and their heirs. Proposed Settlement I.E.6 (defining Class Member), I.E.44 (defining Retired Player). In exchange for the NFLs charitable donation and contribution to attorneys fees, class members release (1) all claims against the NFL and its related entities for the NFLs past uses of publicity rights; and (2) all

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past and future claims arising from the use of publicity rights to promote the NFL, whether by the NFL, its related entities, or third parties authorized to use NFL game footage. Id. I.E.43 (defining Released Parties), III.A.1-2 (defining the scope of release). Class members also covenant not to contest the NFLs exclusive rights to license or sell game footage, to any party. Id. III.C.4. The Proposed Settlement will create two new entities: a Licensing Agency and a Common Good Entity. Proposed Settlement IV.A, IV.F. The Licensing Agency will have the ability to license class members publicity rights to non-NFL parties going forward. Id. IV.C. Class members are not guaranteed any revenue from the prospective activities of the Licensing Agency. To establish the Licensing Agency, $50,000 of initial expenses may be paid from the class notice and administration escrow funds, and additional expenses may be paid from the attorneys fees escrow funds, but not until after attorneys fees and other expenses are paid. Id. II.B.1, II.B.3. The Common Good Entity will administer the Common Good Fund into which the NFL will pay the settlement funds. Proposed Settlement IV.F.1. The Common Good Entity may distribute funds from the Common Good Fund only to (i) charitable organizations; (ii) other not-for-profit organizations; and (iii) health and welfare organizations, and only for indirect or direct use by such organizations for Fund Charitable Uses. Id. IV.F.5.(a), (c). Fund

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Charitable Uses include uses for purposes such as medical research, housing, health and dental insurance, mental health programs, and career transition programs. Id. IV.F.5.(c). If the Common Good Entity does not distribute all of the Common Good Fund within two years of the final payment into the fund by the NFL, the remaining funds revert to the NFL, which itself will use the funds for Fund Charitable Uses. Proposed Settlement IV.F.9. The Common Good Entity does not have authority to distribute benefits from the Common Good Fund directly to class members for their claims in this matter. Id. IV.F.5.(a). III. THE PROPOSED SETTLEMENT IS UNFAIR ON ITS FACE BECAUSE IT DOES NOT COMPENSATE CLASS MEMBERS. Before granting preliminary approval of the proposed settlement, the Court must conduct a preliminary analysis of fairness, reasonableness, and adequacy under Fed. R. Civ. P. 23(e)(2). MANUAL OF COMPLEX LITIGATION (FOURTH) 21.632 (Fed. Jud. Ctr. 2004). [T]he district court acts as a fiduciary, serving as a guardian of the rights of absent class members. In re Wireless Telephone Federal Cost Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir. 2005). In addition, increased scrutiny should be applied to the Proposed Settlement because a class has not yet been certified. See, e.g., Buchet v. ITT Consumer Fin. Corp., 845 F. Supp. 684, 691 (D. Minn. 1994); In re Bluetooth Headset Prods. Liability Litig., 654 F.3d 935, 946-47 (9th Cir. 2011) (explaining [p]rior to class certification, -5-

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there is an even greater potential for a breach of fiduciary duty owed the class during settlement, and citing precedent from the Second, Third, and Seventh Circuits). Preliminary approval should be denied if a proposed settlement contains obvious deficiencies. See In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) (internal quotation omitted); In re Zurn Pex Plumbing Prods. Litig., No. 08-MDL-1958 ADM/AJB, 2012 U.S. Dist. LEXIS 149738, at *7 (D. Minn. Oct. 18, 2012) (granting preliminary approval where there are no obvious deficiencies in the proposed Agreement); In re Uponor, Inc., No. 11-MD-2247 ADM/JJK, 2012 U.S. Dist. LEXIS 5339, at *3 (D. Minn. Jan. 18, 2012) (same). The Proposed Settlement contains an obvious deficiency: it does not provide direct benefits to class members for their claims, but it requires class members to release all such claims arising from all past and future conduct of the NFL. Instead of providing benefits directly to class members, the proposed settlement makes a cy pres distribution to a charitable organization. As part of the fairness evaluation for a settlement with a cy pres provision, the Court should consider the degree of direct benefit to the class. In re Baby Prods. Antitrust Litig., Nos. 12-1165, 12-1166, & 12-1167, 2013 U.S. App. LEXIS 3379, at *23-24 (3d Cir. Feb. 19, 2013); Molski v. Gleich, 318 F.3d 937, 954 (9th Cir. 2003) (Intertwined with our finding that the settlement agreement was unfair is the fact that the cy

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pres award in this case replaced the claims for actual and treble damages of potentially thousands of individuals.). Here, the degree of direct benefit to the class is zero. The failure to compensate class members is not the only deficiency in the proposed settlement. It is, however, sufficient to justify denial of preliminary approval. Because preliminary approval should be denied for this reason alone, and based on the short schedule between the filing of the proposed settlement and the deadline for filing objections to preliminary approval, the Dryer Plaintiffs reserve their additional reasons for opposition to the proposed settlement at this time. A. The Proposed Settlements Cy Pres Distribution Is Unfair to the Class Members.

Each class member has a constitutionally recognized property right in his claim alleged in the case. Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 807-08, 812-13 (1985)). Settlement proceeds in a class action are generated from the value of the class members claims, which they release as part of the settlement. Klier, 658 F.3d at 474. The settlement proceeds, therefore belong solely to the class members. Id. Failing to use the proceeds to provide direct benefits to the class divests the class members of their constitutional property rights and is fundamentally unfair. -7-

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The Proposed Settlement does not distribute the proceeds to class members in any form of direct benefits. Proposed Settlement IV.F.5.(a). In fact, it explicitly prohibits class members from making claims for common fund distributions, providing that funds may be disbursed only to (i) charitable organizations; (ii) other not-for-profit organizations; and (iii) health and welfare organizations. Id. These organizations are amorphous and not defined anywhere in the Proposed Settlement. This arrangement, on its face, is unfair to class members. Because the proposed settlement distributes funds to charity, it is a cy pres distributionone for the indirect, prospective benefit of the class. In re Airline Ticket Antitrust Litig., 268 F.3d 619, 625 (8th Cir. 2001). Cy pres, meaning as near as possible, originated as a rule of construction to save a testamentary charitable gift that would otherwise fail. Id. In the law of trusts, cy pres allowed the next best use of the funds to satisfy the testators intent. Id. (emphasis added). By definition, therefore, in the class settlement context, a cy pres distribution is only the next best use of the settlement fundsa direct distribution to class members is best. See Klier, 658 F.3d at 475 (A cy pres distribution puts settlement funds to their next-best use by providing an indirect benefit to the class.). But that option is available only if it is not possible to put those funds to their very best use: benefiting the class members directly. Id. The proposed

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charitable distributions here frustrate, not fulfill, the class members intent in this actionto be compensated for the NFLs use of their likenesses. Indeed, as the Eighth Circuit has recognized, a class settlement premised upon a cy pres distributions is only appropriate in limited circumstances, such as where class members are difficult to identify or where they change constantly. In re Airline Ticket Antitrust Litig., 268 F.3d at 625. The American Law Institute has similarly set forth criteria for determining whether a cy pres award is appropriate, including [i]f individual class members can be identified through reasonable effort, and the distributions are sufficiently large to make individual distributions economically viable, settlement proceeds should be distributed to individual class members, and not to cy pres recipients. AM. LAW INST., PRINCIPLES OF THE LAW OF AGGREGATE LITIG., 3.07 (2010). Thus, [t]he cy pres doctrine allows a court to distribute unclaimed or non-distributable portions of a class action settlement fund to the next best class of beneficiaries. Nachshin v. AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011) (emphasis added; citation omitted). Most judicial opinions addressing cy pres distributions arise where settlement funds remain unclaimed after class members have been compensated. In re Airline Ticket Antitrust Litig., 268 F.3d at 625. Even in that situation, however, cy pres distributions of unclaimed funds have been controversial in the courts of appeals. Id. Those cases, of course, share a common element that is missing

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from the Proposed Settlement here: direct benefits to class members in exchange for releasing their claims. Here, the Proposed Settlements cy pres distribution to the Common Good Fund is unfair on its face. The Third Circuits February 2013 Baby Products opinion describes in detail the potential unfairness of a cy pres distribution in a class settlement. In re Baby Prods. Antitrust Litig., 2013 U.S. App. LEXIS 3379. The court of appeals found that the district court abused its discretion by approving a class settlement without knowing the balance of compensation between payments to class members and cy pres distributions to charities. Id. at *7-8, *43. $35.5 million was contributed to a settlement fund, and $14 million was set aside for attorneys fees. Id. at *6-7. By the time the claims process was nearly finished, it was expected that only $3 million would be distributed to class members, leaving $18.5 million for cy pres distributions. Id. at *7. The Third Circuit remanded to reconsider the fairness to the class because the district court had not considered the amount of the fund that would be distributed to cy pres beneficiaries rather than being distributed directly to the class. Id. at *7, *24-25. Unlike the Baby Products settlement, the proposed settlement in this matter guarantees that class members will receive zero benefit for their alleged injuries in the past and future while 100 percent of the Common Good Fund will go to cy pres distributions. Baby Products suggests that a disproportionate cy pres

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distribution compared to direct class benefits may be unfair. There is no greater disproportion than that proposed in this matter. The Dryer Plaintiffs request that preliminary approval be denied because the Proposed Settlements cy pres distribution is unfair to the class members. B. A Cy Pres Distribution Is Not Justified in This Case.

This case does not justify a pure cy pres settlement. The class members are identifiablethe NFL is a relatively exclusive club. In fact, the Proposed Settlement suggests that direct mail and email notice will be given to class members, Proposed Settlement V, and the settling plaintiffs motion for preliminary approval does not assert that class members cannot be identified. This matter, therefore, does not fit the criteria justifying a pure cy pres distribution under the Eighth Circuits examples of situations where class members are difficult to identify or where they change constantly or under any other precedent. In re Airline Ticket Antitrust Litig., 268 F.3d at 625. Courts approving pure cy pres distributions in class settlements have done so for large classes made up of consumers. In these cases, class members are difficult, if not impossible, to identify, and the costs of distributing the settlement proceeds outweigh the benefit to each class member. See, e.g., In re Toys R Us Antitrust Litig., 191 F.R.D. 347, 353-54 (E.D.N.Y. 2000) (explaining difficulty in identifying toy purchasers and limited relief per claimant); cf. Fraley v. Facebook,

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Inc., No. C 11-1726 RS, 2012 U.S. Dist. LEXIS 116526, at *4-5 (N.D. Cal. Aug. 17, 2012) (denying preliminary approval based on high proportion of attorneys fees to settlement value, but finding that cy pres distribution may be appropriate for 70 million Facebook users). In this case, the class is made up of a defined number of retired NFL players. It is not a shifting class of consumers. And the $28.5 million to $42 million in Common Good Fund proceeds could be used to fund a claims process for members of the class to receive some type of direct benefit, whether in the form of direct payment, health benefits, insurance or the like. The settling plaintiffs unsupported assertion that per capita payments would have resulted in low payments to each Class Member does not allow the settling parties to deny the class members any claim to a direct benefit. Instead, it suggests that the total value of the settlement may be unfair. Although the Proposed Settlements suggested uses for the Common Good Fund are honorable, IV.F.5.(c), the benefits should be provided directly to class members, not to charities. A pure cy pres distribution, therefore, is not justified under any established precedent. Because direct distributions of benefits to class members are strongly preferred to cy pres distributions, and this case has no justification for a cy pres distribution, the Proposed Settlement is unfair on its face. The Dryer Plaintiffs request that preliminary approval be denied.

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C.

Neither the Common Good Entity Nor the Licensing Agency Guarantee that Any Class Member Will Benefit from the Settlement.

The Proposed Settlement is fundamentally unfair because it distributes funds only to the charitable fund managed by the Common Good Entity and does not provide direct benefits to class members. But the charitable contribution itself is also fundamentally unfair because it does not guarantee that class members will even indirectly benefit from the settlement. The Proposed Settlement suggests that the Common Good Entity will manage the settlement proceeds to benefit retired players, but even this hypothetical contains several holes. For example, the Common Good Entity can disburse settlement proceeds to any non-for-profit organizations for other uses as agreed to by the Board of Directors of the Common Good Entity, Plaintiffs Lead Settlement Counsel, and the NFL. Proposed Settlement IV.F.5.(a).(ii), IV.F.5.(c).(ix). In theory, this structure could result in all proceeds being disbursed back to the NFLit is a non-profit organization. Even the proposed cy pres distribution contains no guarantee that the proceeds will be used for charitable purposes, let alone purposes actually benefitting the individuals whose rights are being released forever. The Proposed Settlement also contains no timeline for disbursing settlement funds. It does however, provide that unused funds will revert back to

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the NFL to spend on its own selected charitable uses, again with no timeline for distribution. Proposed Settlement IV.F.9. The Proposed Settlement does not guarantee that any player will ever receive a benefit from the settlement funds. The Licensing Agency created by the Proposed Settlement does not change the purely cy pres nature of the settlement. By agreeing to the creation of a Licensing Agency, the NFL has recognized that the class members publicity rights have value. But the Licensing Agency will not compensate class members for any NFL use of their publicity rights, which is the injury alleged in this case. Any revenue the Licensing Agency achieves will come from unrelated parties, not from the NFL. The settling plaintiffs have not submitted any expected revenues for the Licensing Agency; they have provided no basis to determine its alleged economic benefit to the class members. The Licensing Agency potentially will be competing with the NFLs own licensing of game footage. If the Court approves the covenant not to sue in the Proposed Settlement, the NFL will be able to license game footage as it sees fit, from its extensive library. The only game footage available to the Licensing Agency under the Proposed Settlement is a set of five-second clips which may be used only to advertise the Licensing Agency itself, not to license to potential customers. Id. IV.D.1.e.

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Finally, if the Licensing Agency achieves any revenue, that revenue will not closely match the value of the Class Members publicity rights, as the settling plaintiffs have asserted. Dkt. #261 at 23. Licensing Agency revenues will relate only to the promotion of third-party products. But the class members claims relate to the use of their identities to promote NFL Football, a product which depends heavily on its history. The alleged benefit provided by the Licensing Agency is not only hypotheticalit is illusory. The proposed licensing agency therefore does not cure the Proposed Settlements obvious deficiency of failure to provide benefits to class members. Any benefit that class members might obtain from the Licensing Agency is purely speculative. It is unfair to class members to merely hope that they are able to license their likenesses in the future while refusing to provide them with direct benefits out of the $28.5 million to $42 million the NFL has agreed to pay. D. The Proposed Settlement Releases Claims Based on Future Harms.

The unfairness of the pure cy pres distribution in this case is magnified by the scope of the release required from the class. In exchange for nothing, the class members must give up not only their claims arising from the NFLs past conduct which constitute this action. Proposed Settlement III.A.1. They also must release the NFL and its authorized licensees to use their likenesses going forward, in perpetuity. Proposed Settlement III.A.2. This release further

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demonstrates the unfairness of the proposed settlement and additional justification to deny preliminary approval. See Zimmerman v. Zwicker & Assocs., P.C., No. 09-3905, 2011 U.S. Dist. LEXIS 2161, at *10-21 (D.N.J. Jan. 10, 2011) (denying preliminary approval for obvious deficiency based on lack of direct benefit to class members, cy pres distribution, and overbroad release). IV. THE RECORD IS INSUFFICIENT TO COMPARE THE SETTLEMENT VALUE TO POTENTIAL DAMAGES. In addition to the fundamental unfairness of the cy pres distribution in the proposed settlement, preliminary approval should be denied because the record in this case has not been developed sufficiently to determine whether the total amount of the Proposed Settlement falls within the range of possible settlement suitable for final judicial approval. Olson v. Citibank, No. 10-2992 (PAM/JJG), 2012 U.S. Dist. LEXIS 51857, at *2 (D. Minn. Apr. 12, 2012) (Magnuson, J.). The settling plaintiffs emphasize that this is the sole issue for the Courts fairness evaluation, Dkt. #261 at 19, but they have not offered any valuation of the class members claims. A conclusory assertion that the settlement value is fair does not establish a sufficient record to grant even preliminary approval. See, e.g., Nielson v. Sports Authority, No. C 11-4724 SBA, 2012 U.S. Dist. LEXIS 168226, at *15-16 (N.D. Cal. Nov. 27, 2012) (denying preliminary approval where the plaintiff fail[ed] to proffer sufficient information for the Court to determine whether the settlement falls within the range of possible approval). - 16 -

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In fact, full damages discovery has not yet been allowed, Dkt. #65 at 2, 9-10, and it is therefore premature to determine whether the amount of the Proposed Settlement is within a suitable range as compared to the value of the class members released claims. The settling parties and the Court do not have sufficient information to evaluate whether a payment of $28.5 to $42 million to charity is a fair exchange for the release of all retired NFL players past and future claims for the NFLs use of their likenesses. The Dryer Plaintiffs therefore request that preliminary approval be denied on this additional basis. CONCLUSION The Proposed Settlement is fundamentally unfair because it provides only for, at best, a cy pres distribution and no direct benefits to class members. It therefore suffers from an obvious deficiency such that even preliminary approval should be denied. The Dryer Plaintiffs, therefore, respectfully request that the Court deny the motion for preliminary approval. They further request oral argument at the preliminary approval hearing on March 22, 2013.

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Dated: March 20, 2013

ROBINS, KAPLAN, MILLER & CIRESI L.L.P. By: Michael V. Ciresi (MN Bar No. 16949) Jan M. Conlin (MN Bar No. 192697) Thomas C. Mahlum (MN Bar No. 259391) Aaron R. Fahrenkrog (MN Bar No. 386673) 2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis, MN 55402-2015 Phone: (612) 349-8500 Fax: (612) 339-8141 MVCiresi@rkmc.com JMConlin@rkmc.com TCMahlum@rkmc.com ARFahrenkrog@rkmc.com Robert A. Stein (MN Bar No. 104930) BOB STEIN LLC 10125 Crosstown Circle, #200 Eden Prairie, MN 55344 Phone: (952) 829-1043 Fax: (952) 829-1040 rastein66@aol.com Thomas J. Ward WARD & WARD, P.L.L.C. 2020 N Street, N.W. Washington, D.C. 20036 Telephone: (202) 331-8160 Fax: (202) 503-1455 tom@wardlawdc.com Attorneys for Plaintiffs John Frederick Dryer, James Lawrence Marshall, Joseph Michael Senser, Elvin Lamont Bethea, Dante Anthony Pastorini and Edward Alvin White - 18 -

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- and Jon T. King (pro hac vice) 856 Walbrook Ct. Walnut Creek, CA 94598 Phone: (925) 698-1025 jtk70@comcast.net Attorney for Plaintiff Dante Anthony Pastorini

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