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Ninth Circuit Delivers Striking Blow to the NFL

2018 September 6
by admin

This morning, the Ninth Circuit Court of Appeals issued a devastating blow to the NFL’s bedrock defense in the prescription drug litigation.

In short, the Court of Appeals rejected the NFL’s longstanding defense that the collective bargaining agreement preempts the state law claims. That is because, the Court held, the CBAs neither need to be interpreted nor do the players’ claims arise from the CBAs. The published opinion can be found here: Dent et al v. NFL

As a result, the case will be remanded to the district court where the case will proceed with discovery and further litigation.

This is a groundbreaking decision since it is the first federal circuit court of appeals to address and reject the NFL’s longstanding defense. This will have far-reaching implications for future litigation against the NFL.

More to come as we digest the opinion.

Guest Post: The King of Halloween and Miss Firecracker Queen

2018 August 21

The following is a summary of Lori Leachman’s new book, The King of Halloween and Miss Firecracker Queen.

The King of Halloween and Miss Firecracker Queen is a memoir about growing up in the South, football, and the death of the patriarch from chronic traumatic encephalopathy (CTE). It tells the story of a life in football from a daughter’s perspective. It provides an intimate look at one family’s rise through the ranks of competitive football—from player to high school, then college coaching; followed by coaching in the WFL, CFL, and NFL, and ultimately to Super Bowl champions. It also chronicles the family’s struggle to deal with and understand the decline of the father who was at the center of this lifestyle from CTE.

The first 2/3rds of the book present the Leachman family’s rise through the ranks of football coaching: starting as a high school football coach in Savannah, Georgia, progressing to college coaching at a variety of schools in the South, and then heading north to coach for the defunct World Football League, the Canadian Football League, and ultimately the National Football League.

The last 1/3rd of the book chronicles the Leachman family’s struggle to deal with the growing incapacity of the patriarch, and to understand the causes of that decline. Lamar Leachman was ahead of the curve with respect to the onset of his disease. He began showing signs of degeneration in the early 1990s, long before the presence of any medical evidence, and a decade before the NFL would acknowledge the existence of CTE, and its link to football.

Told in a rich Southern voice, this is a story of one family’s love of a game and each other. It is a story of one man’s strength of character and the woman’s love that sustained him. It is a coming of age story of a strong-willed, independent young woman. It is a story that will make you laugh and make you cry.

***

Foreword

By Harry Carson, inside linebacker New York Giants 1976−1987; member Pro Football Hall of Fame since 2006; author of Point of Attack and Captain for Life.

As a player in the National Football League with the New York Football Giants ‘back in the day’ (the 1980s), I had the great opportunity to interact and play for and with many outstanding coaches and players; coaches like Pro Football Hall of Fame head coach Bill Parcells and defensive coordinator and linebacker coach Bill Belichick who is now the head coach of the Super Bowl Champion New England Patriots. Players like Hall of Famer Lawrence Taylor, and Super Bowl XXI’s Most Valuable Player Phil Simms, are the names that standout when faithful Giants fans reminisce about winning Super Bowl XXI and becoming World Champions for the 1986 football season.

Often lost in the discussion of any team’s success are the foot soldiers who do the “grunt” or dirty work that most people don’t see on the surface, but without which the team cannot succeed. My tenure with the Giants started in 1976, so I, for one, consider myself one of the ones that was there playing through those years when the Giants were mediocre at best.

That experience has given me a unique sense of history and perspective. Our team’s success was based not solely on one or two ‘stars;’ instead it was based on those players and coaches who in their own way made a difference by playing the role they were assigned, to the best of their ability. Such is the case of Lamar Leachman, our defensive line coach. He helped make our New York Giants defense one of the very best in the National Football League. He was a huge reason for the success of our team.

The defensive line is always the first line of defense for every team. Without defensive tackles, nose tackles and defensive ends motivated and coached with the techniques and skills to supply an effective pass rush, and without the toughness to hit and shed blockers to help shut down the opposing team’s running game, pressure at the linebacker and secondary levels can often be intense and exploited.

Lamar was not my position coach, but we had to work together in meetings and on the field as we implemented defensive strategies. In my role as the captain and leader of the New York Giants Defense, I could clearly see on and off the practice and playing fields the respect his players had for him. He worked his players hard. He was brutally honest if he needed to chastise his guys because he felt they could play better and harder. As hard as he could sometimes be on his players, he loved and respected them. They loved and respected him back. No one ever took his words or actions as a coach personally. As a team, we all appreciated his ability to get the maximum effort from his players.

One of the keys to being a ‘good’ to ‘great player’ in any sport is the ability to be ‘coachable;’ to take direction and be willing to change some type of flaw to improve one’s production or effectiveness. This is important for not only the player, but for the team. We all knew Lamar was a ‘taskmaster’ who loved to coach young players and make them better on the football field. If you attended the Giants practice during training camp, it would not take you long to spot Lamar. He was the one flexing his muscles, wearing the sleeveless tee shirt, barking his approval or disapproval with his heavy southern drawl. He was hard on his players, but they loved it. They loved it because they knew he made them better players on the field. More importantly, he earned their respect for being a straight shooter and treating his players as if they were his own sons. His contributions might never be known by the average football fan, but all who played for him, and were a member of our team, know the essence of the man, and what he meant to us as a team.

Several years ago, I began the process of reuniting the 1986 Super Bowl Championship Team for our 25th Anniversary. Of the 53 men on the team roster, 51 of the players came back. Of the Giants coaches, eight of the eleven coaches from the staff of Bill Parcells were also present. The one coach who was sorely missed by everyone was Lamar. It was our understanding that Lamar sustained a traumatic brain injury because of a freak accident that took place at his home in South Carolina.

Brain trauma is a subject that I think I understand, and have spoken out about. I played thirteen seasons in the National Football League. With my collegiate and high school years included, I’ve played 21 years of football. Those 21 years of hard hitting physical contact have provided me with insight regarding what many former football players and athletes experience. Participants in contact sports like football, rugby, lacrosse, wrestling, boxing, and even NASCAR racing, all worry about cognitive and neurological issues years down the road.

Unfortunately, the neurological issues Lamar Leachman experienced are what many of my former coaches from high school, college, and professional football have also dealt with as they aged. The story told here could just as easily have been their story, behind the scene and after the cheering stops.

To read more or for links to purchasing go to www.lorileachman.net.

CTE Reaches the High Courts

2018 April 4

Next week, a potential landmark case will be heard by the Ohio Supreme Court. This is the first CTE case to reach the high courts. And the stakes could not be higher.

At issue: when does a CTE claim accrue for purposes of the statute of limitations?

The plaintiffs, correctly, argue that CTE is a latent disease that does not manifest until decades after the last brain trauma. As a result, a CTE claim does not accrue until an individual has been diagnosed.

This is consistent with black letter law associated with latent diseases and the application of the bedrock principle of the discovery rule.

The sports industry–in this case, the NCAA & Notre Dame–contend that the plaintiffs’ claim is barred because the claim accrued when the player was last exposed to the head trauma. According to the industry, the claim must have been filed decades ago.

This argument is manifestly wrong and highlights the tactics the industry uses to distort the science of CTE during the course of litigation.

What’s more, the sports industry contends that even if the discovery rule applies, then the claim is still time barred since the individual should have known, through the “exercise of reasonable diligence,” that he had CTE prior to his diagnosis. The sports industry points to the very medical literature it denies to support this argument.

Stated differently, the sports industry, to this day, still denies the existence of the link between repetitive brain trauma in contact sports and CTE. Yet, this very same sports industry contends that the medical literature should have put the plaintiff on notice that he had CTE.

By that logic, then, shouldn’t the sports industry, through the exercise of reasonable diligence, also have known about the risks of CTE and warned accordingly?

Of course. But we know it did not.

This is a classic case of industry doublespeak. Or, the industry trying to have its cake and eat it too.

In either event, the Ohio Supreme Court should affirm the court of appeals decision, which agreed with the plaintiffs, and hold that a claim for CTE is a distinct latent disease that does not accrue until an individual has been medically diagnosed.

The arguments will be live streamed here. A summary of the briefs is below, along with links to the dockets and briefs.

*****

Did Brain-Damaged College Football Player Wait Too Long to Sue for Injuries?

National Collegiate Athletic Association et al. v. Steven Schmitz et al., Case no. 2017-0098
Eighth District Court of Appeals

ISSUES:

  • Does Ohio’s two-year statute of limitations for a personal-injury tort claim start when the full extent of the injuries are revealed through a formal diagnosis?
  • Is chronic traumatic encephalopathy (CTE) a latent disease or is it the latent effect of previously diagnosed head injuries?
  • Does the statute of limitations for a CTE personal-injury claim begin when CTE is diagnosed?
  • Is Ohio’s four-year statute of limitations for a fraud claim reduced to two years if the substance of the fraud claim is an attempt to recover damages for a bodily injury?

BACKGROUND:
From 1974 to 1978, Steven T. Schmitz played college football for the University of Notre Dame, a member institution of the National Collegiate Athletic Association (NCAA). In December 2012, he was diagnosed with chronic traumatic encephalopathy (CTE) by the Cleveland Clinic Neurology Department. He was 57 years old at the time and suffering from memory loss, early onset of Alzheimer’s disease, dementia, and other health problems. In October 2014, he and his wife, Yvette, filed a personal-injury lawsuit against Notre Dame and the NCAA in Cuyahoga County Common Pleas Court. Schmitz died in 2015. Yvette Schmitz continues the lawsuit on behalf of the estate of her former husband and to press her own claims.

The couple claims Notre Dame and the NCAA knew or should have known the risks of brain injuries college football players faced and that they ignored the risk. They also claim the NCAA schools encouraged players to use their heads when tackling and blocking and did little to address the concussions players suffered. The couple charges the institutions were negligent, committed fraud by concealment and constructive fraud, violated stated and implied contracts, and harmed the couple’s relationship (legally known as “loss of consortium.”)

Notre Dame and the NCAA asked the trial court to dismiss the case, claiming the case was filed too late given the statute of limitations. The trial court dismissed the case, and Yvette Schmitz appealed to the Eighth District Court of Appeals. The Eighth District affirmed the decision to dismiss the breach of contract claims, but reversed the decision on the negligence, fraud, and loss of consortium claims. The case was returned to the trial court to continue with further proceedings. Notre Dame and the NCAA appealed the Eighth District’s decision to the Ohio Supreme Court, which agreed to hear the case. Oral argument in this case will be conducted at a special off-site court session in Putnam County.

Legal Argument Overview
The parties dispute whether the Schmitzes waited too long to initiate a lawsuit in common pleas court. The parties also argue the distinction between characterizing CTE, a certain type of brain injury associated with football and other contact sports, as a “latent disease” or a “latent effect” of an injury. If CTE is a latent disease, it would be a separate injury or illness compared with a brain injury, such as a concussion. If CTE is the latent effect of a disease, it would be the continuation and increased severity of a brain injury that worsens over time. The distinction impacts the timing of when the player’s lawsuit must be filed to comply with Ohio’s statute of limitations for certain civil cases.

Suit Should Have Been Filed Earlier, Institutions Argue
Notre Dame and the NCAA argue that all three main claims — negligence and the two fraud counts — are actually personally injury claims, and are governed by the two-year statute of limitations in R.C. 2305.10(A). Loss of consortium is a related claim that can only move forward as long as the courts allow any of the three main claims to be considered.

The institutions contend the time limit begins to run from the time the defendant commits the “wrongful act” upon which the action is based. They also claim there is a narrow exception to the rule in R.C. 2305.10(A) called the “discovery rule,” which applies to injuries that don’t “manifest” themselves at the time of the wrongful conduct. The institutions claim that CTE and other neurological problems are the long-term effects of injuries that “manifested” immediately during Steve Schmitz’s playing days, and that if the couple is claiming Notre Dame and the NCAA are responsible for the wrongful conduct, then the conduct took place no later than 1978 when he stopped playing. If that is when the injuries occurred, the statute of limitations to file a lawsuit ended decades ago, the institutions conclude.

The institutions also maintain that even if the CTE is a new injury and the discovery rule does apply, the couple still waited too long to file the lawsuit because they should have realized Steve Schmitz was suffering from head injuries long before they received a formal diagnosis from the Cleveland Clinic. Citing the Ohio Supreme Court’s 1983 O’Stricker v. Jim Walter Corp. decision, the institutions explain the discovery rule states that when an injury doesn’t immediately manifest itself, the statute of limitations begins to run from the date that the injured person is “informed by a competent medical authority” or the date the injured person “by the exercise of reasonable diligence” should become aware of the injury.

The Eighth District ruled that CTE was a latent injury, separate from the concussions Steve Schmitz suffered while playing football, and the deadline to file a lawsuit started when he received his diagnosis from the Cleveland Clinic. Notre Dame and the NCAA counter that by exercising reasonable diligence, the Schmitzes should have known about the potential of developing CTE at least two years before the clinic’s evaluation. The institutions note that the Schmitzes argue CTE involves the slow build-up of Tau protein in the brain tissue and causes progressive decline in brain function, and that the Schmitzes must have noticed the problems long before they went to the doctor.

The institutions argue that both sides in this case claim that studies of head injuries to college athletes have been issued since the 1920s, and both sides should have been aware of the potential impact. They dispute the Schmitzes’ argument that the institutions concealed information from athletes about the potential severity of the injuries, and they noted that in 2010 the NCAA instituted a concussion protocol that required Notre Dame and all schools to have concussion management plans.

“In short, if the allegations of the Complaint are true, then by 2010 at the absolute latest, Mr. Schmitz was or should have been alerted to the possibility that head injuries can lead to significant, long-term cognitive impairment,” the institutions’ brief states.

Notre Dame and the NCAA conclude that a lawsuit claiming it was responsible for causing CTE should have been filed within two years of the 2010 NCCA rule. The institutions also dispute the fraud allegations, and argue the Schmitzes waited too long to file on those claims as well. They argue that the four-year statute of limitation for fraud in R.C. 2305.09(C) doesn’t apply because a two-year time limit applies to all claims based on bodily injury regardless of whether they are characterized as fraud claims.

Lawsuit Should Proceed, Family Asserts
The Schmitzes maintain the injury is a latent disease and the Eighth District correctly applied the discovery rule when it found that the case was filed in the appropriate amount of time. They argue the symptoms of CTE are different from the symptoms arising from concussions. They further maintain Steve Schmitz never knew he had concussions from the hits he endured while playing football and the Notre Dame staff never informed him that he suffered concussions when he felt dizzy or disoriented on the playing field. The complaint doesn’t allege this is a known injury that worsened over time, and the fact that a player suffered head injuries during playing days doesn’t prevent a lawsuit later when a diagnosis of a disease is delivered, they argue.

The couple points to the Ohio Supreme Court’s 1994 Liddell v. SCA Services of Ohio Inc. opinion as the decision that explains how to apply the discovery rule to a latent disease. In Liddell, a police officer was exposed to toxic fumes when he escorted school children out of a bus spewing toxic fumes after it overturned. He experienced breathing issues and six months later developed sinus infections. Six years later, a surgeon removed a tumor from his sinus cavity that revealed cancer. While the officer was aware he had been exposed to toxic fumes from the time of the accident, he sued the transportation company based on the latent disease. The Supreme Court applied Ohio’s discovery rule to the case and found the two-year statute of limitations didn’t begin until the officer’s cancer was revealed.

“Like the police officer in Liddell, prior to his diagnosis with CTE, Steve Schmitz did not know that he had been exposed to the risk of a latent brain disease caused by football or that he would be diagnosed with that latent brain disease at age 57,” the Schmitzes’ brief states.

The couple also disputes the claim that they must have known about the injury long before going to the Cleveland Clinic. They argue because the trial court dismissed the lawsuit at the earliest stages, discoveryhadn’t taken place and the institutions are only speculating on what the Schmitzes might have known about the impact of a brain injury three decades after participation in a college sport. The Schmitzes maintain that the clock began to run on filing a lawsuit when a competent medical authority, the Cleveland Clinic, issued the diagnosis, and that the case was filed within two years of the diagnosis.

Friend-of-the-Court Briefs Filed on Each Side
An amicus curiae brief supporting Notre Dame and the NCAA’s position has been submitted by the Ohio Association of Civil Trial Attorneys. The Ohio Association for Justice has filed an amicus brief supporting the Schmitzes.

– Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the National Collegiate Athletic Association: Frederick Nance, 216.479.8500

Representing University of Notre Dame: Matthew Karis, 614.469.3939

Representing Steven Schmitz et al.: Robert DeRose, 614.221.4221

Protecting Our Youth For the Sake of Their Brain

2018 February 12

Should tackle football be banned for children under 12? Legislators across the country will soon be debating whether laws aimed at protecting children from unnecessary brain trauma should be implemented.

Last month, Representative Carol Sente from Illinois proposed a bill that would prohibit children “under the age of 12” from participating in “tackle football offered by an organized youth sports program.”

The bill—the Dave Duerson Act to Prevent CTE—was named after the late Chicago Bears safety, Dave Duerson, who died in 2011 after shooting himself in the chest. In his suicide note, he requested that his brain be analyzed to determine whether he had CTE.

He did.

Now his family is fighting to protect children from being exposed to needless brain trauma.

Legislators from New York, Maryland, and California followed suit and introduced similar bills.

The New York bill—the John Mackey Youth Football Protection Act—is named after the late NFL hall of famer whose widow has been a lightening rod in bringing about change with the way the NFL treats retired players.

The Maryland bill seeks to ban tackle football for kids under 14. It was introduced along with a bill that would mandate that an athletic trainer (or someone trained in concussion management) be at all games and practices.

On the west coast, California became the first state to propose a similar bill that would prohibit youth from playing tackle football until they reach ninth grade.

Though the likelihood of these bills becoming law is bleak, for now, it provides an important arena for lawmakers and the public to debate this critical issue.

The bills are backed by numerous current and former NFL players who unanimously agree that it is unnecessary for a child to play tackle football. They point to the successful players—like Tom Brady—that didn’t start playing football until high school.

Science, of course, supports this policy.

The leading expert in sports-related concussions, Dr. Robert Cantu, suggests it is a no-brainer from a public-health perspective.

Some of my colleagues quibble that the science has not determined which age is the right age, but they don’t seem to realize that health experts set age minimums for all sorts of activities like drinking, smoking and driving, and the science is never purely black and white.

The safe alternative, the experts’ propose, is playing flag football. Numerous organizations are popping up around the country that provide all the essential skills of football without the unnecessary brain trauma.

This is a common-sense solution we should all get behind—for the protection of our kids and the game.

The Significance of Hernandez’s CTE Diagnosis

2017 September 22

On Thursday, news broke that Aaron Hernandez had CTE. While the fact that he had CTE is not surprising, the extent of his damage is. Hernandez had Stage III CTE, according to Dr. Ann McKee and Boston University. Providing more punch to the news, Boston University released the slides of Hernandez’s brain that shows the extreme deposition of tau protein in his frontal lobes. The frontal lobes control decision making, judgment, impulse control and many other important everyday functions.

In addition to the classic pathology found in CTE, Hernandez also had “early brain atrophy and large perforation in the septum pellucidum.” In other words, shrinking of the brain and a hole in an important relay station of the brain.

For only being 27-years old at the time of his death, the extent of Hernandez’s brain damage is truly alarming.

Post-mortem results like Hernandez and Jovan Belcher (25), both of whom were still playing in the NFL, or at least had the capability to do so, raise a very unsettling question of how many active players currently have brain damage this extensive? Should they continue to be exposed to brain trauma? Are their employers and the NFL turning a blind eye to the damage that is being done? Should the players be compensated more for the risks they are being exposed to? Should the NFL and owners provide lifetime medical monitoring for all players in order to detect CTE in the future? Should all NFL players who sign a contract automatically be entitled to a form of CTE insurance?

These and so many other questions demand answers. That is why the work of Boston University and the Concussion Legacy Foundation is so vitally important. Litigation is also a powerful tool to effect change.

Following the release of information that Hernandez had CTE, his legal team announced that they filed a federal lawsuit on behalf of Hernandez’s family against the NFL and the New England Patriots. (A copy of the lawsuit can be found here.)

The lawsuit is a long shot at best. It will have to survive numerous legal hurdles before the merits are even reached. Let alone a jury. But to be sure, Jose Baez and his team are known for beating the odds.

Here are a few early hurdles they must overcome.

The NFL and Patriots will first seek to have the lawsuit transferred to Philadelphia—the main battleground for the federal NFL Concussion Injury Litigation. On January 31, 2012, Judge Anita Brody was appointed by the Judicial Panel on Multidistrict Litigation (JMPL) to preside over all cases relating to “allegations against the NFL stemming from injuries sustained while playing professional football, including damages resulting from the permanent long-term effects of concussions while playing professional football in the NFL.” This formed MDL 2323.

In other words, this Order compels that any lawsuit against the NFL relating to concussions will be transferred to Judge Brody.

Although Hernandez’s team may oppose the transfer to the MDL, the odds are unlikely since this case falls squarely within the JPML’s Order.

Next, once Hernandez’s lawsuit becomes part of the MDL, the NFL and Patriots will seek to dismiss his case on two threshold issues: waiver and preemption.

Right out of the box, the NFL and Patriots will argue that Hernandez is a Class Member under the NFL Concussion Settlement. As a result, they will contend that his claim—including his daughter’s—was released by the class-wide waiver in the Settlement Agreement. They will assert that Hernandez was a “Retired NFL Football Player” on July 7, 2014 – the critical date under the Settlement that defines whether a former player is a Class Member.

In supporting this, the NFL and Patriots will have to argue that Hernandez “informally retired” when he was indicted on August 22, 2013 for the murder of Odin Lloyd. But this argument should fail.

As Michael McCann notes, Hernandez was not convicted of Lloyd’s murder until April 15, 2015—well after the July 7, 2014 cutoff date. Presumably, it was always Hernandez’s intent to beat the charges and return to the NFL. Thus, throughout this time, he was still “seeking active employment.” As a result, Hernandez was not a “Retired NFL Football Player” who released his claim under the NFL Settlement.

Once this issue is resolved, the next play will be for the NFL and the Patriots to move to dismiss the lawsuit under Section 301 of the Labor Management Relations Act—also known as preemption. This is the bedrock defense the NFL has asserted throughout the NFL Concussion Litigation.

This is where Hernandez’s legal team will likely meet their match.

While I personally believe the preemption defense is meritless, the NFL has had a significant amount of success convincing courts and creating case law supporting the argument that these types of claims are barred by the collective bargaining agreement because they require interpretation of the CBA. (Side note: Our legal team is the only one to beat it thus far.)

That is especially true, such as here, when a claim makes allegation about the failure to adopt “rules and league policies related to player health and safety” and/or preseason health examinations. Most glaringly, in Paragraph 76 of the Hernandez Complaint, they allege, “Prior to the 2010 NFL draft, and before the beginning of each football season, Aaron was examined by medical professionals associated with Defendants. Medical examinations of Mr. Hernandez during this period would have revealed cognitive impairment as Mr. Hernandez’s CTE worsened.”

But this walks Hernandez’s lawsuit right into the preemption trap. The NFL and Patriots will point directly to this allegation and argue—as they have ad nauseam in related cases—that this allegation is covered by Art. 39 § 1(c) of the 2011 CBA, and therefore triggers preemption. And with that, Hernandez’s lawsuit could be dismissed.

This is potentially a fatal mistake that his legal team should fix immediately. Indeed, the NFL has already released a statement highlighting the errors they see in the lawsuit. “On first blush, we believe it contains significant legal issues,” NFL spokesman Joe Lockhart declared.

In any event, whether or not Hernandez’s lawsuit is successful, this much is clear: CTE is real and it is clearly impacting even some of the youngest players in the NFL. This issue demands attention—not detraction or denial—if we want to have any hope in detecting and someday preventing CTE before it’s too late.

Against the Head: Concussion Litigation in Rugby

2017 May 24

Guest Post by Iseult Cody

A wet October morning. A field outside Roscrea, an unremarkable town in the midlands of Ireland, a rugby heartland, where men are men and pride in a jersey comes before all else. Thirty men on a field chasing an oval ball with maybe the same number again on the side-lines watching.

Supporters of a certain size and gender dare not get too close to the team manager for fear that if a substitute is needed they could be drafted in. There is no stand, no television cameras, no TV match official just the players, the officials and the supporters, maybe 60 sets of eyes follow the ball as it slips from muddy hand to hand weaving through the players. The jerseys are faded, the lines on the field are smudged but the passion is evident with every run, every tackle, and every kick.

Everything will be left on the field, they will give it everything they have and for no reward, there is no cup, they won’t be paid, they won’t get recognition save for from the small assembled crowd or a by-line in a local newspaper or tweet from a supporter. This is a religion in itself and this scene is repeated across the country every weekend throughout the season.

Suddenly a shoulder collides with a head, a man drops to the ground, he touches his hand to his head, and the team doctor who incidentally doubles up as the kit man runs on, glancing over his shoulder to see who is on the side-line potentially ready to enter the field of play if needed. He asks the right questions but is reassured by the player that he is fine. The doctor scurries back to relative warmth of the side-line the game continues on.

This is amateur rugby. This is the heartbeat of the game. This is the reality.

A different picture unfolds before our eyes. The scene is set, it is the 6 July 2013 at the ANZ stadium in Sydney. Eighty-three-thousand-seven-hundred-and-four sets of eyes will watch every movement, will feel every hit from their seats, will discuss every blow, will follow every movement as fifteen Lions take to the field with the intention of mauling, both literally and figuratively, the Australian Wallabies. Millions of eyes across the world will follow the ball on their TV screens, watching not only the live action but the replays.

Four minutes in and pulses are already racing, Wallabies legend George Smith (who incidentally returned from retirement for the game) has the ball in hand and collides with 250 pounds of Welshman in the form of Richard Hibbard. The initial hit almost has the effect of bringing time to a standstill, every viewer almost feels the reverberation as Smith’s head bounces of Hibbard’s shoulder before landing to the ground with a thud unable to prevent his own fall.

The medics race on, the spectators hold their collective breath, on the side-line Michael Hooper throws off his training top and races onto the field as the replacement.

The supporters are still discussing how sad an end to his career it is for Smith and hoping his injuries are minor when he emerges from the tunnel before running back onto the field.

One could be forgiven for questioning whether the team doctor had himself suffered a blow to the head in allowing Smith back on. This is professional rugby. This is the elite. The is with the eyes of the rugby supporting world watching.

In the wake of the game Smith himself acknowledged the severity of his injury,

It obviously affected me. You saw me snake dancing off the field. I passed the [concussion] tests that were required within those five minutes and I got out there.

World Rugby, in its former guise the IRB, stood up and took notice. The rules changed, safeguarding player welfare became the headline issue, excuse the pun.

The “6 Rs” – recognise, remove, refer, rest, recover, return – should be the mantra when we witnessed a potential concussion, it should be instilled in our memories and in every participant, every coach, every official, every parent. Rugby would not fall into the pitfalls of NFL in seeking to distance themselves from concussion or shirk their responsibility.

In the wake, Rugby would protect its players from themselves. In a sport where physicality is inevitable, and indeed a requirement of the playing of the game, to protect players you have to take an almost parental approach and make the decisions for the players as to what is in their best interest. Rugby would change, rugby would adapt and rugby would protect their biggest asset, their players.

Fast forward three years and despite the rule changes, the negative publicity, the experiences of litigation in other jurisdictions and other codes and the awareness of the potential long term effects of successive repeated blow to the head, on 3rd December 2016, Northampton’s George North flies through the air as he collides with Leicester’s Adam Thompstone before landing directly on his head, apparently knocked clean out.

North, who has suffered a number of concussions throughout his career, departs the field of play only to return within minutes having undergone the HIA (Head Injury Assessment) protocols.

The sense of déjà vu was frightening to the scene witnessed in the ANZ stadium and indeed to the countless other instances in the intervening years of players receiving blows to the head and yet remaining on the field of play or leaving only to return.

The sceptic amongst the rugby fraternity may suggest nothing has changed but we (the rugby supporters and players) are now more educated, more aware, more sensitised so there is an immediate investigation into the conduct of the club in allowing Smith’s return to the field undertaken by Premiership Rugby and the RFU, and they issue guidelines but no sanctions are taken.

The complaints at the lack of action reverberate throughout the rugby community like North’s head against the turf, so World Rugby takes action and a strongly worded statement issues emphasising how seriously head injuries must be taken, that the protocols must be adhered to but yet again there is no sanction.

The situation posed a new question, if the procedures were followed and North was still deemed fit to return to the field of play then perhaps the question is are the protocols fit for purpose? What is to prevent a player dismissing the team doctor’s queries, he is the professional, the valuable commodity to the team, what if the team is losing and this is the “star” player; who is to say the doctor doesn’t look the other way or doesn’t see the signs that another doctor may?

Doctors differ and patients die but at the end of the day it is accepted that the HIA isn’t the only assessment of potential concussion, a player may satisfy a doctor conducting the HIA but still have suffered a concussion. The time may be approaching where a clear injury sustained to the head should have the effect of removing a player from the field for the remainder of the game with the HIA conducted to determine what further period of exclusion a player should have prior to their return to play.

Rugby related litigation to date has been largely focused on injuries sustained in scrums whereby players have suffered serious injuries as a result of collapsed scrums including players rendered tetraplegic however matters seem to be, pardon the pun, coming to a head now particularly with three sets of proceedings which look to shake rugby to its very core.

The first set of proceedings were instigated in Manchester by former Sale Shark Cillian Willis. Willis’ proceedings claim that his premature retirement from the game resulted from his taking two separate blows to the head during the course of a game. After the first blow the medics deemed Willis fit to continue but the second blow would see him crossing the side-line for the last time as a player.

The second case is being taken by Jamie Cudmore against his former club Clermont Auvergne. Cudmore’s case which cites his former employer’s negligence in exposing him to potential further injury in allowing him to play on, is particularly remarkable given that after this incident he went on to continue his career and indeed is still playing with French side Oyonnax. Cudmore may face an uphill battle in showing the injury or damage caused if his case were to go before the courts, but many commentators would expect this matter to be settled prior to that possibility. Cudmore himself is quite frank in his comments on contact sport and his comments on the matter illustrate a player’s perspective of the matter

Rugby is a contact sport, so you can’t take the contact out of it…You can work a lot on tackle technique and on neck strength. I think World Rugby can try and change something around the rules but, for example, tackles to the chest often end up hitting the ball and going up. It’s a case-by-case basis but the referees are in a tough situation … In terms of changing the rules of the game, the big one they need to do is getting more players on the bench. It takes away that pressure that if a good player is injured or concussed, that they stay on because there is no-one as good or better to replace them.

The third case which may prove to be the catalyst for the biggest change to head injury protocols or indeed for underage sports in general is the tragic death of Benjamin Robinson.

Benjamin holds a unique accolade, one that no one would want and one that has broken the hearts of his family, friends and teammate’s alike: he is the first person in the United Kingdom to die as a result of Second Impact Syndrome playing rugby, as determined by the coroner.

At 14 years of age Benjamin took not one, not two but three blows to the head during the course of a schoolboy’s rugby game. Benjamin collapsed and was treated on the field as his helpless parents looked on. Benjamin would later die in hospital with the coroner noting three separate brain injuries which in all likelihood represent the three blows sustained in that fateful game.

In the wake of his death his parents became aware that one of the opposition had recorded the match and suddenly they were faced with the harrowing prospect of reliving their son’s death on camera but also having the opportunity to dispel any notion of his death being a tragic freakish accident.

His death had to bring a positive legacy, it had to be the catalyst for change and could not be allowed to be in vain. Benjamin’s parents have now launched proceedings against various defendants including the school, the IRFU (governing national body for rugby in Ireland) and World Rugby. The case is one which they acknowledge won’t bring back their son but it may protect another family from suffering the loss they have had to endure.

For those of us who love the game of rugby, Benjamin’s smiling face pictured in his jersey is a poignant reminder of why rugby has to change, Rugby has to protect the future of the game, the participants who can’t be expected to protect themselves. Benjamin’s face should remind us of what is at stake.

The reality is players are getting bigger, hits are getting harder but the brain doesn’t and can’t protect itself any more now than it could yesterday. Two opponents collide, they both are stronger than their counterparts 10 years ago but their brain hasn’t changed, that strength doesn’t afford it any more protection or safeguard it from injury.

In our first tort class we learn the “eggshell skull” rule whereby the defendant will be responsible for the consequence of their actions no matter how remote or unforeseeable they may be; it is hardly that unforeseeable to picture the result of repeated blows to the head incurred during the course of rugby being chronic traumatic encephalopathy (“CTE”), as seen in the NFL.

The game has changed from so many perspectives, the physicality, the professionalism, the regulations but the biggest change needs to now be how World Rugby deals with head injuries or instances of suspected head injuries, not just to protect itself but to protect every participant and to ensure no family has to endure what the Robinsons have had to. Rugby for many is not just a sport, it is a way of life but no life should be lost in the pursuit of sport.

*****

Iseult Cody is a practising lawyer in Dublin, Ireland with Eoghan P Clear Solicitors where she specialises in Property and Probate Law. As an avid sports enthusiast she has recently completed the first Sports Law Diploma course through the Law Society of Ireland and hopes to further expand her practice into Sports Law related matters.

Pennsylvania Court rules, “The NCAA is the supreme regulatory body in college athletics” and that it Must Face a Trial

2017 April 4

As the NCAA tries to fend off a tidal wave of litigation, its legal defense is quickly eroding. In the latest blow to the NCAA, a trial court in Pennsylvania ruled that the NCAA must face a trial over its alleged failure to protect the health and safety of student athletes.

The case arises from a lawsuit filed by former college football player, Matt Onyshko, who played at the California University of Pennsylvania between 1999 and 2003. He was diagnosed with amyotrophic lateral sclerosis (“ALS”) in 2008. In 2013, he filed a claim against NCAA asserting that the NCAA failed to “adequately supervise, regulate, and minimize the risk of long-term brain injury.”

The NCAA, as it has done repeatedly in litigation, claimed that it did not “owe a legal duty” to protect the health and safety of student athletes. Instead, the NCAA claimed, this duty resides with the member schools. The NCAA doubled down on this assertion and even stated that it “lacks the enforcement mechanisms to implement legislation over its member institutions.”

Flatly rejecting this, the Court stated,

This argument also lacks merit because the NCAA is the supreme regulatory body in college athletics with the stated purpose of ‘hav[ing] a clear moral obligation to make sure we do everything we can to protect and support student-athletes.’

Notably, this “stated purpose” was a quote directly from the NCAA’s President, Mark Emmert, during a congressional hearing where he was grilled by Senator Jay Rockefeller for the NCAA’s tone-deaf response to the Derek Sheely lawsuit. The landmark Sheely lawsuit against the NCAA and other defendants was subsequently settled for $1.2 million.

The Court also rejected the NCAA’s no-duty argument based on “inherent risks” in football. The NCAA often relies on this argument to assert that it has no duty to protect against inherent risks in sports. And since a concussion is an “inherent risk” in football, so the argument goes, the NCAA owes no duty to protect against this risk.

But the Court found that,

This argument lacks merit because it oversimplifies and conflates the risk of injury with the negligent treatment, management and prevention of such injuries. While suffering a head injury in the course of playing football is likely a danger inherent to the sport, the negligent treatment and management of such injuries, leading to severe long term damage is beyond the scope of the inherent risk assumed by players.

This reasoning is consistent with Judge David Boynton’s ruling in the Sheely lawsuit, where that court also denied the NCAA’s motion for summary judgment.

Finally, the Court rejected the NCAA’s statute of limitations argument, which asserted that Onyshko’s claim was barred by the two-year statute of limitation because he last sustained injuries in 2003, but did not file his claim until ten years later. The Court found that the discovery rule tolled the statute of limitations because Onyshko did not know his ALS diagnosis was the result of repetitive brain trauma and the NCAA’s negligence. Onyshko did not become aware of this connection until he “saw a segment on TV regarding Steve Gleason.” The Court found this at least creates a factual issue that the jury must decide.

At bottom, this ruling sets the stage for a jury trial. A jury will be asked to determine, inter alia, if the NCAA breached its duty owed to Onyshko and whether its alleged failure contributed to cause Onyshko’s brain damage. Some evidence that Onyshko put forth in opposing the motion for summary judgment was an admission by his team’s head athletic trainer that “he was not provided, directly or indirectly, [with] any return-to-play guidelines or a concussion management policy from the NCAA.” In response, the NCAA hired an expert, Dr. Robert Harbaugh, who opined that the NCAA “did not in any way violate any standards.” The Court found that this is a factual dispute that must be resolved by the jury.

A trial date has not yet been set, but the heat is surely on the NCAA.

***

The full decision by the Court can be found here: Onyshko v. NCAA – Opinion and Order

NFL Concussion Settlement – Registration Opens February 6

2017 January 26

With the NFL Concussion Settlement finalized, the settlement process will soon begin. Retired players and their families can begin registering on February 6, 2017. Registration can be completed online at NFLConcussionSettlement.com.

On February 8, 2017, at 10:30 am ET, the Court will hold a live broadcast of a status conference where Class Counsel will provide information about the registration process and Settlement. If you would like to watch it, you can view it here: www.NFLConcussionSettlement.com, and click on the button labeled “February 8th Status Conference – Live Stream.”

Below, is the Pre-Registration Notice in its entirety.

NFL Concussion Settlement Pre-registration Notice

Good News—The NFL Concussion Settlement is now effective, as of January 7, 2017. You may be eligible for benefits. Now is the time to prepare for Registration that opens on February 6, 2017.
There are two upcoming events to be aware of:
(1) Judge Anita Brody will hold a status conference on settlement implementation on February 8, 2017, at 10:30 a.m.
• You can watch this conference live online at www.NFLConcussionSettlement.com by clicking the button labelled “February 8th Status Conference – Live Stream.”
• Judge Brody and the lawyers for the retired players and the NFL will be answering questions about the settlement. Questions can be submitted in advance to ClaimsAdministrator@NFLConcussionSettlement.com. Please put “Question for Status Conference” in the subject line.
(2) After February 6, 2017, you will also receive an individual notice about registration.

ONCE REGISTRATION OPENS, YOU MUST REGISTER ON OR BEFORE AUGUST 7, 2017 TO PARTICIPATE IN THE SETTLEMENT AND BE ELIGIBLE FOR ANY BENEFITS. 

 

Year in Review – Concussion Litigation

2017 January 2

I was recently a guest on Daniel Werly’s and Daniel Wallach’s all-star podcast, Conduct Detrimental. You can listen to it by clicking on the link below, and make sure to subscribe to the podcast on iTunes.

Conduct Detrimental Podcast Ep 12: Concussion Litigation with Paul Anderson

Additional details from my comments can be found here:

The Latest Wave

NFL Concussion Settlement and the Five Qualifying Diagnoses

CTE Cutoff 

The NCAA’s Medical Monitoring Settlement

NHL Concussion Litigation

Derek Sheely Landmark Settlement and Groundbreaking Rulings

Flexing the Economic Weapons in Reserve

2016 December 23

The stage is set.

Five minutes until the Citrus Bowl kick off.

The Tigers and Cardinals just went into the locker room after completing their pre-game warm ups.

The opening kick-off clock winds down: 01:30….00:59…00:30…00:19…00:05.

But the crowd begins to mutter in a state of befuddlement, wondering where the players are. The announcers, in a similar state of confusion, speculate that perhaps the game is being delayed due to terrorist threats.

From their luxury suite, the Chairman and President of the Citrus Bowl look at each other and exclaim, “Where are they?!”

The rest of the Executive Committee joins in, “Those kids better get on the damn field!” … “Who do they think they are?” … “Someone call down to the locker room,” someone shouted.

The kick-off clock strikes 00:00.

The drunken crowd begins to boo.

ABC cuts to a commercial.

An assistant from the luxury suite yells to the pissed off suits, “Gentlemen, I was just informed that the Tigers and Cardinals are boycotting the game and they do not intend to take the field.”

“What in the Sam Hill?” a member of the Board of Directors exclaims.

“Shit! We were warned this could happen. We are going to lose a lot of money. How do we get them on the field?” someone asks.

“Call Mark Emmert,” another person yells.

“We are going to have to cut a deal with the players,” someone mumbles.

“F**k no!” someone else says, “They work for us!”

The assistant pipes back up, “Gentlemen, we’ve received this letter,” as he begins to read it aloud:

To Whom It May Concern:

Please be advised that we are united in force and we do not intend to play today’s game until the following demands are met.

First, you accept and acknowledge the National College Players Association (NCPA) as the official organization and representative for all college athletes. Prior to the start of the 2018 athletic season, the NCAA and the NCPA will negotiate a collective bargaining agreement that provides for, among other things, future health benefits for all athletes, increased and guaranteed four-year scholarships, and unrestricted transfer rights.

Second, fifty percent of all revenue earned from all bowl games and March Madness Tournaments will be distributed to the NCPA, for the benefit of the players, which will be held in a trust to establish a health and benefits fund for all current, future and former college athletes.

Third and finally, the NCAA will eliminate all restrictions that prohibit college athletes from generating revenue based on their names and likeness.

If these demands are not met, this game and the rest of the scheduled bowl games — including the playoffs — will be canceled.

We look forward to working with you.

Sincerely,

The NCPA

On behalf of All The Athletes

“HAHAHA,” one of the executives laughs. “Are they out of their f*****g minds?”

“We are not negotiating with them. They are student-athletes, not employees, and they have no rights!”

The players never took the field and the game was cancelled. As promised, the rest of the players refused to take the field for all remaining bowl games.

The NCAA, the conferences, networks and advertisers lost billions of dollars. Numerous class action lawsuits were filed against the NCAA, et al., by fans seeking reimbursement for tickets and travel expenses.

Similarly, the networks sued the NCAA and the conferences for billions of dollars in damages — and won.

All told, the NCAA went bankrupt, and the antiquated organization dissolved.

A new organization was formed that committed itself to protecting the health and safety of college athletes while also embracing the economics of modern college athletics. The NCPA and the new organization entered into its first ever collective bargaining agreement that provided valuable rights for all college athletes.

College athletics flourished in innumerable ways that benefitted both the institutions and the athletes.

*          *          *          *

What if?