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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?

The Harvard Football Players’ Health Study: A Critique by Brad R. Sohn

2016 November 22

The following is a guest post by Brad R. Sohn

I.  Overview

Paul Anderson invited me to share the following critique of the Football Players Health Study at Harvard University (the “Report”).  This newly published Report claims to analyze legal and ethical obligations facing Pro Football as an industry.  The Report proclaims independence in offering a total of 76 recommendations in areas bearing on Pro Football stakeholder experience, along with a handful of stated abstentions in other areas.   As with just about everything related to the industry of Pro Football, the devil lies in the details, and those details point to opposite conclusions.  A close analysis of this Report reveals its true nature: it is a tour de force of litigation avoidance, and one that seeks to strip retired players of their rights through illusory “enhancements” of the broken collective bargaining system.

II.  The Report’s Claim of Independence Deserves Scrutiny.

Numerous examples in recent times—even without looking to the merits of this study—necessitate heavy scrutiny of any claims of “independence” by Pro Football.  Consider: Neither the NFL, its labor arm the NFL Management Council (the “NFLMC”), nor the NFLPA have performed a longitudinal study of CTE, yet Pro Football’s industry benefitted from the lack of information such a credible study would have provided; both camps rely on “independent” experts on player safety that, at varying times, each side has jointly and also individually compensated.  Independence as generally defined by Pro Football is a very fluid concept.

This Report, in particular, raises my eyebrows for the following reasons: it had a closed peer-review process in which it paid seven hand-picked reviewers between $5,000 and $10,000 for opinions on this work; the majority if not all of the hired “peer-reviewers” support arbitration and medical malpractice tort-reform; its advisory committee contains appointees whose biases raise issues in my mind, including (notably) the wife of NFLPA president Dominique Foxworth; though each lacked editorial control, the NFLPA and NFLPA both had the opportunity to propose revisions to this report; and, at least one of the three authors (hired by the NFLPA) to write this has made attempts to dissuade opt-outs from the NFL Concussion MDL and would gain professionally by the advocated outcomes.

III.  The Report’s Recommendations Bolster The “Pro Football-Industrial Complex.”

The Report highlights ten “top” recommendations, all of which contain a common theme: 1) a CBA-created medical staff for players to be jointly appointed by the NFL and NFLPA; 2) a carefully-crafted recommendation that acknowledges “collective bargaining is the principal method by which changes are made to NFL health policies,” yet opaquely advocates for removal of player health issues from ADVERSARIAL collective bargaining (i.e., not a removal of this issue altogether from collective bargaining); 3) an improvement and CBA-enforcement of various codes of ethics; 4) a CBA-prescribed scientific study of Pro Football’s health risks; 5) a CBA-prescribed continuation of and enhancement to the already “robust” injury-related data collection; 6) an enhancement to the already “robust” measures regarding player health in CBA Article 39 (“Players’ Right to Medical Care”); 7) joint Club and staff support for second opinion medical evaluations; 8) an obligation on clubs to place concussed individuals on a short-term injured reserve list, which would be created by the CBA; 9) greater Player familiarization with their collectively bargained for rights; and 10) player treatment with individual doctors who are jointly approved (based on a new CBA measure.)  Indeed, one struggles to find even one, single recommendation that does not involve existing CBA provisions, a call for CBA-driven enhancements, or means through which damaged players would need to assume greater legal responsibilities themselves (as opposed to the league or the union.)  These recommendations are disingenuous, self-serving, and dangerous.

These recommendations—each of them—embolden a union that has drawn widespread criticism for its ineffectiveness and all-too-cozy relationship with its theoretical adversary: the NFL.  All of the Report’s “recommendations” would erect even stronger barricades to the courthouse doors and make it nearly impossible to ever rectify an injustice.  The key here is not what the study identifies as the ethical-legal problems in Pro Football.  Those problems have been well established for a decade if not longer.  One can watch movies all the way back in time to the 1970s like North Dallas Forty and see Pro Football doctors depicted as treating players like NASCARs.

At the heart of the problem lies procedural failings inherent in the “Pro Football industrial complex”: the players eat at the behest of owners and have assented, through misaligned union representation, to a labor agreement that is already unfair and overbroad.  These recommendations amplify the problem: this Report makes no recommendations redressable outside the boundaries of the CBA.  Giving up even more rights to sue is a serious decision treated lightly (if treated at all) by this Report.  And my opinion is that it has been designed this wa

IV.  The Report Materially Misconstrues and Misrepresents The CBA.

This Report leads readers to two false conclusions: that tort-style damages are available under the CBA’s grievance procedures; and, that the CBA “shop law” permits arbitration of state law tort claims.  Neither of these assertions are true.  Period.  Pro Football entities have tried to avoid any liability whatsoever when sued by claiming (falsely) that players must arbitrate grievances.  In fact, two final, non-appealable orders from CBA arbitrations make unambiguously clear that this is false: Henderson v. Dolphins (Jan. 1988 – Kasher) and Sampson v. Oilers, (Jul. 1988 – Kagel) each expressly show that the CBA does not provide remedies at all for claims such as medical malpractice, gross negligence, and product liability.  The only available money damage awards that players can receive under the non-injury grievance provision are where they dispute matters pertaining to their NFL player contract and monies owed under it.  Finally, and most damning, is the Reports admission that “[t]here have been no Non-Injury Grievances concerning Article 39 decided on the merits, suggesting either clubs are in compliance with Article 39 or the Article has not been sufficiently enforced.”

Indeed, this process of holding teams and the league accountable has been such a smashingly successful endeavor that no individual player has ONCE benefitted from it!  Some courts have even held that retired players lack standing to pursue these sorts of (illusory) claims.  Regardless, arbitration is a forum that favors those who hire the arbitrators time and again.  And while the NFLPA and NFLMC/NFL are seemingly adversaries, neither has an interest in having arbitrators award damages for breached joint responsibilities – another focus of this Report.  Thus, the only way players can be compensated for tort-damages is through tort litigation.  As imperfect a system as that is, it is the only one with “teeth” capable of holding wrongdoers responsible for doing things like concealing (intentionally) the dangers of repetitive head trauma, dispensing drugs in contravention of the law, or committing medical malpractice.

Finally, and disturbingly, notwithstanding the recommendation to remove “player health” from adversarial bargaining, this Report also advocates for letter-amendments to the CBA.  There are significant questions as to whether labor council for the NFLMC and NFLPA can even amend the CBA without a formal, full-scale renegotiation.  Notably, this has only occurred in the context of heavily tort-litigated arenas of the CBA, and, in the minds of some, for the purpose of bolstering a CBA/LMRA-preemption defense to a lawsuit.  (For example, counsel will exchange letters to suggest a CBA amendment for the purpose of attempting to defeat a court’s jurisdiction over a conflict).

Both the NFLMC/NFL and the NFLPA would prefer to handle disputes “in house” and “behind closed doors.”  There is a reason why the New York Times published a multi-part series on the dangers of arbitration, and further, a reason why Congress and many courts have receded from their previously unqualified deference to the arbitral forum.  CBA arbitration—which frequently provides zero remedy for the wrongs identified in this report—is procedurally and substantively unfair, stacking the deck in favor of industry and against the aggrieved.  In fact, it is for this purpose that I believe the entire Report may have been created: to be admissible as a “learned treatise” in litigation as a means of bootstrapping Harvard’s name to the CBA defense.

V.  The Report’s Treatment Of Protective-Equipment Issues Shocks The Conscience.

This Report presents a number of issues in warped fashion and omits key facts, nowhere more apparent than in its presentation of equipment-related issues.  It is remarkable and alarming that the Report praises these manufacturers—one of whom was investigated recently by the Federal Trade Commission for lying, and who also participated in the infamous MTBI Committee’s research—for doing a good job, and as such, defers on recommendations to this entire arena.  In technical legal terms: huh?

Problems with equipment safety are profound as well as circular, and all of the key institutional parties have blood on their hands: the National Operating Committee on Standards for Athletic Equipment (“NOCSAE”); ImPACT Applications, LLC; helmet manufacturers; helmet-testing labs; and both labor camps (the NFLMC and NFLPA.)  NOCSAE sets the standards for protective equipment (notably helmets.)  There is an incestuous relationship between these groups that allows innovation on protection standards to stagnate, and that also makes liability more difficult.

Pro Football recognizes it needs helmets and has sought to limit its own liability by remaining at arms-length with companies like Riddell.  In addition, Pro Football recognizes that latent brain injury is a virtually certain result from its game.  So how can Pro Football avoid responsibility?  This is accomplished through requirements that helmet companies rely on “independent” standard-making and testing.  Enter NOCSAE, a self-regulating body (responsible to no one) and comprised—at least in part and at one time by majority—of helmet industry executives.

NOCSAE safety standards expressly do not apply to concussion.  Essentially, NOCSAE crash-tests helmets and determines if equipment can withstand impacts applicable to skull fracture and brain bleed.  ONLY.  In a study paid for by Riddell and the NFL, even the NFL’s experts could not avoid the conclusion that “no helmet can prevent concussion.  Full stop.”  Yet Pro Football uses—and in fact insists—on standards that have materially remained in place for close to a half-century.  Moreover, NOCSAE receives large amounts of money from Pro Football, and though it does not test itself, its technological minds have been employed by the helmet industry’s two principal helmet-testing labs such as the Southern Impact Research Center.  Lab principals at SIRC have testified numerous times as expert witnesses for the defense in helmet-death lawsuits. Football literally uses people paid to say “it wasn’t the helmet’s fault” to develop its warnings and safety standards.

So long as NOCSAE certifies a helmet (based on its outdated standards) the NFL permits use of that helmet.  This includes products such as those cited in the Report, like the Riddell Revolution line.  As studied haphazardly in the Report, Riddell relied on skewed data and statistics to claim its helmet—designed to reduce concussion—was effective.  Riddell’s experiments for this purpose relied on a neurocognitive assessment called “ImPACT.”  ImPACT was created by Pittsburgh Steelers-affiliated neuropsychologists and neurologists, and has more than a 20% false positive AND negative rate.  In other words, the NFL places certification in the hands of a conflicted certification body, which has certified products licensed by the NFL directly, which make claims based on conflicted science.  Yet this report says these entities are making progress.  Toward what?

VI.  Conclusion

We need the right to sue.  It is the easy (but wrong) choice to take the Report at face value.  Indeed, on its face, this Report seems reasonable.  But it is more of the same, and it takes advantage of people’s lack of time to investigate the source of facts.  In the tradition of Big Tobacco, Pro Football has—especially in the past decade-plus—advanced its agendas on important issues through the “third-party technique.”  That is what I believe is at work here.  Check out information on the Third Party Technique on Wikipedia at: (https://en.wikipedia.org/wiki/Third-party_technique).  And in the meantime, don’t fall for the head fake! 

 

Image result for brad sohn

 

Brad R. Sohn, Esq. of The Brad Sohn Law Firm graduated cum laude from Harvard University and the University of Miami School of Law.  He handles cases nationwide on behalf of the severely injured, frequently litigating against NFL entities.

The Final Plea, By “Friends of the Court”

2016 November 3

In one last shot to reverse the NFL Concussion Settlement, more than 130 former NFL players and other “friends of the Court” filed amicus briefs with the Supreme Court pleading for help.

The focus is again on CTE, and the settlement’s unfair treatment of thousands of former NFL players who will likely suffer from CTE’s debilitating effects in the future, yet receiving nothing under the settlement.

The 135 former NFL players say they are filing the brief “on behalf of a sampling of the many former NFL players whose interests have been sacrificed at the altar of this settlement.” Their brief highlights four former NFL players whose rights, according to their lawyers, were bargained away:

  • Tony Gaiter is a 42-year-old former player with the New England Patriots. Mr. Gaiter cannot drive a car or hold a job. He suffers from severe depression. He has a history of homelessness. He mutters to himself and has difficulty carrying on a conversation with friends and family members. He no longer cares about his appearance. According to his life-long friends and relatives, his condition has worsened over time. But none of these symptoms of his decline, all of which occurred after his retirement from the NFL and all of which are signs of CTE, are compensable under the current terms of the settlement.
  • Tracy Scroggins, a 47-year-old former Detroit Lion, also joins this brief. Mr. Scroggins has withdrawn from the world as a result of his bouts of aggression, anxiety, poor impulse control, and anger. He suffers from depression. He has severe insomnia, often going several nights without sleeping. He has difficulty with focus, attention, concentration, and memory. As a result of his symptoms, he can no longer hold a job and support himself. Mr. Scroggins’ symptoms and medical evaluations strongly indicate that he is suffering from CTE. But unless he also manifests a qualifying disease, the settlement will not compensate him for these losses.
  • Rose Stabler, the ex-wife of Hall of Fame quarterback Kenny Stabler, joins this brief. Mr. Stabler died in 2015, and his autopsy revealed severe stage-3 CTE. Before his death, Mr. Stabler suffered from mood swings and other mental issues that destroyed their marriage. Mr. Stabler and his heirs cannot recover for CTE injuries under the settlement as currently drafted because he died after the settlement was finalized. In its current form, the settlement compensates players who died with CTE prior to April 22, 2015, up to $4 million. Any player unfortunate enough to die with CTE after that date recovers nothing under the settlement, absent proof of another qualifying disease. Which means, although Kenny Stabler died with severe CTE on July 8, 2015, a mere two and a half months after the cut off, his estate can recover nothing under the current settlement.
  • William Floyd also joins. Mr. Floyd played with the San Francisco 49ers and Carolina Panthers during his seven-year NFL career. At age 44, he suffers from chronic headaches. He cannot stay on task. He is socially isolated. As his neuropsychological assessment concludes, “Mr. Floyd is totally disabled to the extent that he is unable to engage in any occupation for remuneration or profit.”

All told, the “friends of the court” urge the Supreme Court to grant review of the NFL Concussion Settlement.

What’s next?

The NFL and Class Counsel have until November 7 to file their opposition briefs—arguing why cert should be denied. Thereafter, the briefs will be circulated to the justices and a decision — whether to grant or deny cert — will be made sometime in December.

The amicus briefs filed in support of SCOTUS granting cert can be found here:

The NFL Concussion Litigation is Far From Over

2016 October 3

Although the NFL Concussion Settlement appeared to have reached the goal line (when the Third Circuit affirmed the deal), a late Hail Mary to the Supreme Court may have extended the litigation into overtime. (Enough with the football references.) Here is what’s at stake.

In late August, the family of the late Cookie Gilchrist filed a petition for a writ of certiorari asking the Supreme Court to review the settlement. Shortly thereafter, the objectors’ most valuable player – Deepak Gupta – filed a separate petition asking the Supreme Court to weigh in on the settlement’s deficiencies.

Pleading that the Supreme Court grant cert., Deepak argued why this case demands the Court’s attention:

If this Court does not intervene now, the consequences will be severe: not only will lawyers and litigants be handed a blueprint for circumventing Amchem and Ortiz, but thousands of former football players later diagnosed with CTE may file suit in the Second Circuit—and that circuit’s precedent will permit them to collaterally attack the settlement on the ground that it did not provide them any compensation. This is thus the rare case in which a split in the circuits may lead to a different result in the same litigation—litigation affecting the lives of thousands of people, hundreds of millions of dollars, and the future of professional football. This Court’s intervention is required.

Enmeshed in fairly complex legal arguments about class actions, the thrust of Deepak’s brief is the settlement’s disparate treatment of CTE—and how its implementation into the settlement violates the “ground rules” of class actions. In other words, Deepak zeroes in on the alleged conflict between those individuals who died with CTE prior to April 22, 2015 (who will receive up to $4 million) and those individuals who die after April 22, 2015 with CTE (who will receive nothing). Deepak argues that this creates a massive conflict of interest between the class members, and as such requires reversal. (The full brief can be found here.)

More still, Deepak foreshadows the potential havoc that has been wreaked by the settlement. Rather than buying global peace, the settlement may be subject to a “collateral attack,” which would allow certain CTE claimants (those who receive nothing, such as Ken Stabler’s family) to file separate lawsuits requesting that the settlement’s release be struck down because it violates due process. Stated another way, the settlement may open the flood gates to a tsunami of future CTE litigation, while simultaneously triggering a circuit conflict in class action jurisprudence.

Though compelling, the chances of the Supreme Court granting cert. are slim. Indeed, each term 7,000 – 8,000 petitions for cert. are filed, and the Court grants less than 80 of them. And even if the Court agrees to take the case, the likelihood of reversal is even more daunting.

The Supreme Court’s timing in which a decision will be made—i.e., whether to hear the case or not—is somewhat elusive. Deepak’s case was “docketed” on September 29, 2016. The NFL and Class Counsel have until November 2, 2016, to file a brief in opposition in which they will argue why the Court should not take the case. Similarly, any amicus briefs in support of the cert. petition must be filed by October 31, 2016. After this date, the briefs are “distributed to the Justices’ chambers” where they decide whether to grant or deny the petition. (The SCOTUS Blog breaks down the inner workings here). Traditionally, four justices must agree to hear the case.

The decision-making process is somewhat opaque, i.e., there is no definitive timeline, but most SCOTUS observers believe the turnaround will be relatively quick. In other words, there will likely be a decision before Christmas.

If the Court declines to review the case, all appeals are exhausted and the settlement becomes effective. On the other hand, if the Court grants cert., it can “pursue several options.” A breakdown of those options can be found here. But most notably, though unlikely, the Court can schedule briefing and oral argument, which would inevitably drag the NFL Concussion Litigation out for another year, if not longer.

We will continue to monitor the Court’s docket and timely update the status of this appeal.

The Derek Sheely Litigation Leads to a Landmark Settlement

2016 August 9

On August 28, 2011, Derek Sheely died as a result of second-impact syndrome. On August 22, 2013, the family of Derek Sheely filed a wrongful death lawsuit against the NCAA, Kranos (dba “Schutt Sports”), George L. Heider, Inc. (dba “Sportsmans”), two Frostburg State University (“FSU”) coaches, and a Frostburg State athletic trainer, asserting that Derek’s death was a preventable tragedy.

After almost three years of hard-fought litigation, and near the eve of trial, the Parties announced that a settlement was reached. The settlement provides that the Defendants will pay $1,200,000.00 to The Derek Sheely Foundation.

“This is a landmark settlement not just because it is the first brain-injury case that the NCAA has agreed to pay a significant amount of money to resolve, but also because the stakeholders of football are now on notice that they have an obligation to protect the health and safety of the athletes, and if they fail to do so, there will be vast repercussions,” said the Sheely’s attorney Kenneth McClain of Humphrey, Farrington & McClain, in Independence, MO. “While we were eager to try this case to a jury, we were able to craft a settlement that will have a much greater impact than a verdict could have achieved in this case.”

In addition to the monetary terms, the Parties agreed to the following terms that are aimed at increasing awareness and research about concussions.

  • The NCAA and FSU, including by and through the University of Maryland medical division, will sponsor and fund, in conjunction with The Derek Sheely Foundation, a symposium in honor of Derek Sheely to occur no later than December 31, 2018.  It will focus on reduction of catastrophic risk to student-athletes or another similar topic. The symposium will be presented to coaches, trainers, sports medicine personnel, student-athletes, youth, and parents.  Participants in the symposium or lecture series are expected to include the representatives of the NCAA and the Sports Sciences Institute, a representative of The Derek Sheely Foundation, prominent neurologists, team physicians, and other experts in the field.  The NCAA and FSU will evaluate whether to sponsor or co-host additional symposiums with The Derek Sheely Foundation.
  • FSU will establish an annual Derek Sheely Foundation fundraiser on campus to begin no later than August 1, 2017.  FSU will consult with The Derek Sheely Foundation on the schedule and nature of the fundraiser.
  • FSU will provide sufficient funding to enable The Derek Thomson Sheely Leadership Award to be increased to a full-tuition scholarship for a minimum of 10 years, and potentially longer, to begin on or before the 2017-2018 academic year.
  • The NCAA and FSU, in conjunction with The Derek Sheely Foundation, will make a research award towards a project dealing with catastrophic risk no later than December 31, 2018.  The Derek Sheely Foundation will be consulted on the topic of the research award project.  In addition, the Derek Sheely Foundation will be acknowledged as a sponsor of the research.
  • FSU will retire Derek Sheely’s number and display it in a location on campus.  FSU will consult with The Derek Sheely Foundation on the location.  In addition, the 2016 FSU football program will include a feature in memorial of Derek Sheely identifying his years at FSU, his jersey number 40, his position, a photo, and The Derek Sheely Foundation.
  • The NCAA will continue to discuss with its member institutions policies regarding concussion guideline enforcement, concussion and second-impact syndrome training for coaches and trainers and elimination of certain drills.
  • The NCAA will produce a new video addressing risks of head injuries, including second-impact syndrome, in sports that will be available to member institutions on or before June 1, 2017.

“This is a tremendous result that will guarantee that The Derek Sheely Foundation will be able to continue its mission of protecting the health and safety of athletes, while also ensuring that Derek’s legacy lives on through the Foundation,” said the Sheely’s attorney Paul D. Anderson of The Klamann Law Firm, in Kansas City, MO. “This unprecedented litigation and subsequent settlement have solidified that second-impact syndrome is not an inherent risk of sport and that those who are responsible for the safety of athletes must take affirmative action to prevent a tragedy like Derek’s from ever happening again.”

Statement from Ken and Kristen Sheely

In August 2011, our beloved son Derek Sheely suffered a fatal brain injury during football practice and our lives have been forever devastated.  We established the non-profit Derek Sheely Foundation to increase awareness and research into sports-related concussions in hopes of preventing other children from suffering Derek’s fate. This settlement will help the Derek Sheely Foundation achieve its goals.

We wish to thank the brave players who stepped forward for Derek.

We believe that Derek’s case has set an important precedent and helped shape the national dialog.  We also believe that more must be done to protect athletes, and we will continue to make this our mission.

The New ‘League of Denial’

2016 July 29

Taking a page from the industry’s playbook, the NHL now appears to be the new “League of Denial.” In a 24-page missive, filed in reply to Senator Blumenthal’s letter, Gary Bettman and the NHL made clear that they believe CTE is bogus. Not only that, Bettman hedged his bets and asserted that warning about CTE is dangerous and can lead to suicide. Seriously:

To be clear, the NHL and NHLPA’s position is that a “warning” about CTE is, at best, premature and also potentially dangerous (as discussed further below). […]

This, sadly, is precisely the type of tragedy that can result when plaintiffs’ lawyers and their media consultants jump ahead of the medical community and assert, without reliable scientific support, that there is a causal link between concussions and CTE.

The medical community was appalled, and so am I. I was recently quoted in The Globe and Mail,

“I think his letter is outrageous,” said Paul D. Anderson, a Kansas City lawyer who has represented many former NFL players in concussion lawsuits and runs NFLconcussionlitigation.com. “Frankly, I’m shocked that it was even published. It does a terrible disservice from a public-health perspective.”

I also joined Naylor & Landsberg to discuss my outrage: http://www.tsn.ca/nfl/video/bettman-denies-link-between-cte-and-concussions~920033