|Wednesday, February 26
Where's the money? Former players want to know
By Darren Rovell
When Dominique Wilkins first saw that his Atlanta Hawks jersey was in style again, the man dubbed the "Human Highlight Film" was humbled.
"But then I started to see 20 to 30 people every day wearing my jersey and it wasn't that cool anymore," Wilkins said. "I realized that I'm not making a dime off this."
If there's an ugly underbelly to the throwback jersey craze, it's that some retired NBA players whose names appear on the backs of them are becoming very vocal about not getting their piece of the pie. And if Wilkins -- who has retained an attorney to find out how much money he is owed and how he can recoup potential losses -- chooses to sue the National Basketball Association Retired Players Association (NBARPA), it's possible that a victory would open the floodgates for other retired players to receive thousands of dollars in retroactive licensing royalty pay.
The controversy hinges on a one-page document which the NBARPA has been sending to retired players since the creation of the organization in 1993. The document, which currently has been signed by almost 800 former players, authorizes NBA Properties to sell to licensees, such as throwback jersey maker Mitchell & Ness, the rights to use the name and likeness of the player on behalf of the NBARPA.
Although money generated from using the player goes directly to the NBARPA, the agreement -- obtained by ESPN.com -- never specifies the allocation of the licensing dollars. Wilkins, who was paid additional licensing royalties by the NBA after he inquired last month, said he never would have signed the agreement if he had known that it would keep him from collecting royalties from the sales of his 1986-style jersey.
The licensing dollars are used to fund academic scholarships, medical care benefits and organizational functions, said NBARPA executive director Mel Davis. But Wilkins' lawyer, Stephen Weizenecker, said that Wilkins and other players have not received any detail of the donations for their tax returns. Weizenecker further claims that the agreement does not abide by standard contract law since a contract implies that there will be mutual benefit.
"In this case, the players have been waiving all their rights and they aren't receiving anything for it," Weizenecker said.
Wilkins and others are entitled to opt out by simply informing the NBARPA that they want the union to cut them a check instead of donating it to NBARPA causes, Davis said. Other players whose names became popular on retro jerseys, such as Alex English and Jerry West, recently opted out of their agreement with the union, according to Davis. David Thompson and Moses Malone, whose names appear on the back of retro Denver Nuggets and Spirits of St. Louis jerseys, respectively, have confirmed to Davis that they want the NBARPA to continue to receive the proceeds from their jersey royalties.
Davis said that if players don't want to sign the agreement they will not be forced to -- about 98 percent of current NBARPA members have signed -- but no players will be able to get paid retroactively.
The latter disappointed English, who was one of the first to opt out of the agreement after he saw the sales of his Nuggets jerseys skyrocketing. English told ESPN.com he wasn't even a member of the NBARPA when his jersey was released in July, but because he signed the group agreement in 1999, Davis said the league had the rights to license English's name.
"I was surprised that I signed it and then they claimed they had my rights forever, unless I opted out," English said. Davis has since agreed to send English the checks instead of depositing proceeds in the NBARPA's coffers. The agreement does not include a length of time that the player is under the contract, which Weizenecker said is another curiosity.
Wilkins said he has to find out how successful his jersey sales have been before taking legal action.
"I need to find out how many jerseys have been sold, but I'm definitely opting out," said Wilkins, who currently serves as the special assistant to Lee Douglas, the executive vice president for the Hawks. "During All-Star weekend (in Atlanta), they were flying off the racks. There were thousands of jerseys sold. That's why a couple thousand dollars isn't going to pacify me."
With the exception of a select few -- including Julius Erving, Magic Johnson, Bill Russell, Larry Bird, Kareem Abdul-Jabbar and the estate of Wilt Chamberlain -- retired NBA players who sign the group licensing form are the only former players among the major sports leagues not to benefit directly from the use of their names on retro jerseys. Mitchell & Ness cuts individual checks to 47 NFL players, 30 Major League Baseball players and 15 NHL players to use their names, according to owner Peter Capolino.
"I pay a fee directly to the NBA, but I have no control over how they choose to distribute it," Capolino said. "I've been doing NBA jerseys since 1999 and this has never been an issue, until sales significantly increased last year." As maker of the authentic retro jerseys, which have been popularized by the hip-hop industry, Capolino's revenues increased from $2.8 million in 2000 to $23 million last year.
A source with knowledge of sales of Mitchell & Ness' NBA retro jerseys said fewer than 2,000 Wilkins jerseys have been sold. Since licensing royalties are 4 percent on the gross value of the jersey -- in Wilkins' case that's $162.50 -- Wilkins would have collected $6.50 per jersey if the money were going directly to him. With fewer than 2,000 jerseys sold, the maximum amount Wilkins could have made would have been $12,993.
Although Wilkins believes that more jerseys have been sold and he's entitled to more money that he would like to earmark for his foundation, Davis said the royalty figures aren't as significant as some players think.
Weizenecker said that no matter what the numbers are, the NBARPA has a responsibility to present Wilkins with the licensing money he has generated for the organization since signing the agreement. If Wilkins does decide to take legal action should the sides not agree, Weizenecker said a court victory could allow other players to follow suit in claiming retroactive pay on licensing royalties cashed by the NBARPA with players who signed the contract -- which Weizenecker thinks could be deemed legally unsound.
"It is not clear what the players, individually or as a group, received in exchange for the relinquishing of their rights," said David Carter, principal of the Sports Business Group, which has served as an expert witness in sports licensing and intellectual property matters. "At the very least, both parties must quickly and equitably clarify this licensing relationship." Davis said he has recently contacted those who have significant royalty dollars on the line and has made sure that they were clear of their option. But some players, including NBARPA board member Rick Barry, are still having trouble figuring out how they go about executing the option.
"If there is a deal out there, I need to know what's going on," said Barry, whose 1966-67 San Francisco Warriors jersey has been an NBA retro jersey top-seller since 1999. "If there's hundreds or thousands of dollars I'd at least like to have the option of using some of the money to set up a trust fund for my son's college education if he doesn't get a scholarship."
Austin Carr said he wants to split the proceeds from the sale of his 1975-76 Cleveland Cavaliers retro jerseys between his own fund and the NBARPA.
"I have all the confidence that we'll get to the bottom of this," Carr said. "It's kind of like what is happening in Ohio with LeBron James. When something happens like this and you're not prepared, you have to invent a new set of rules."
Davis said that things could change when its time to renegotiate a new licensing agreement for the NBARPA next year. "I will make sure to come up with something that is a win-win for the league and the players," Davis said. "I also plan to revise the authorization form, but if every player thinks he can stand alone and doesn't want to be part of what we are doing in the future, then there soon will be no Retired Players Association."
Darren Rovell, who covers sports business for ESPN.com, can be reached at firstname.lastname@example.org.